Drobny v. I.N.S.

• Decision Date: 09 January 1991
• Docket Number: No. 90-3190,90-3190
• Citation: 947 F.2d 241
• Parties: Henryk Stefan DROBNY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 241

947 F.2d 241

Henryk Stefan DROBNY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-3190.

United States Court of Appeals Seventh Circuit.

Argued May 16, 1991.

Decided Oct. 21, 1991.

Rehearing Denied Jan. 9, 1991.

James Hallagan (argued), Joseph Minsky, Minsky, McCormick & Hallagan, Chicago, Ill., for petitioner.

Fred Foreman, U.S. Atty., Office of U.S. Atty., Criminal Div., Chicago, Ill., Alison R. Drucker, Mark C. Walters, Lori L. Scialabba, David J. Kline, Michele Y.F. Sarko (argued) Dept. of Justice, Office of Immigration Litigation, Washington, D.C., A.D. Moyer, I.N.S., Chicago, Ill., for respondent.

Before CUMMINGS, CUDAHY and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

Henryk Drobny, a permanent resident, faces deportation to Poland for a narcotics conviction. The Immigration Judge (IJ) found Drobny deportable and denied him a waiver under section 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1182 (1988), and the Board of Immigration Appeals (BIA) denied his appeal. Drobny now contends that his deportation hearing violated due process because (i) his English was so poor that he could not understand the proceedings; (ii) his mother, who speaks no English but was at the hearing to testify, was not furnished an interpreter; and (iii) the IJ excluded all testimony by and about Drobny's girlfriend, including her possible pregnancy with Drobny's child.

I.

Drobny, a citizen of Poland, was admitted to the United States as a lawful permanent resident on August 27, 1979, when he was sixteen. His testimony indicated that in Poland he finished grammar school and one year of high school and in the United States he went to night school for one year to learn English. He has lived with his mother, who is also a legal alien. He stated that he does not use or deal in drugs. At the time of the hearing he was not employed, but he has held previous jobs, including a recent stint as a butcher. He last saw his father, who is in Poland and divorced from his mother, when he was two years old.

In the fall of 1986 Drobny was convicted, pursuant to a guilty plea, of delivering about five grams of cocaine to an undercover policeman in January 1985. He received a sentence of three years probation, the first year of which included weekends in jail. Since then, Drobny's only other brushes with the law were a speeding violation and the discovery of a marijuana cigarette in a car in which he was a passenger (no charges were filed). Drobny recalled being arrested for theft in 1983, but the charges were dropped. R. 100.

The INS charged Drobny with deportability under section 241(a)(11) of the Act. ¹ At his hearing Drobny admitted the conviction but requested a waiver of deportation under section 212(c), ² which vests the Attorney General with discretionary authority to admit or suspend deportation of a permanent resident who has resided in the United States for at least seven years.

At the hearing Drobny's attorney, who showed up forty-five minutes late, began asking Drobny about his relationship with Anna, his girlfriend. The IJ refused to permit the inquiry on the basis that Drobny and Anna were not married and that their relationship was not a "status" recognized under the Act. The IJ refused to permit Anna to testify for the same reason and also refused to permit testimony regarding Anna's possible pregnancy. The IJ characterized both the possibility of the couple's marrying and the possibility of pregnancy as nascent equities, neither of which is a current "status" relevant for waiver consideration.

Drobny's mother, Helen, who speaks little or no English, also appeared at the hearing to testify. When Drobny's attorney introduced Helen, suggesting that Anna interpret, the IJ, dismayed at not having been alerted earlier to the need for an interpreter, refused to let Anna interpret because of her relationship to Drobny. The IJ accepted this offer of proof from the attorney:

Your Honor, the witness would testify that ... substantiating the facts that Mr. Drobny has not seen his father since he was two years old. The elderly condition of the grandmother who partially raised him and would have also testified as to the fact that while Mr. Drobny was employed he did contribute towards his support. When he lived with his mother while he was employed he paid room and board to his mother.

R. 107. Helen did not thereafter testify.

The IJ found Drobny deportable for his narcotics conviction. The decision also denied Drobny's request for 212(c) relief, based on a balancing of favorable and unfavorable factors pursuant to In re Marin, 16 I & N Dec. 581 (BIA 1978). Whatever factors Drobny had in his favor, concluded the judge, were outweighed by the seriousness of the crime and the absence of ties Drobny had established in his community. The judge determined that because Drobny had been convicted of a "serious crime," he needed--and failed--to show "unusual or outstanding equities" to be eligible for 212(c) relief under In re Buscemi, 19 I & N Dec. 628 (BIA 1988). The opinion mentions Drobny's relationship with his mother but does not refer to Anna or the possible pregnancy. "[H]e does not have a wife or child who are dependent upon him for support." R. 46. The judge also felt that Drobny made no "affirmative showing" of rehabilitation and had not expressed regret or remorse for his crime. "In short, he has not shown that he has endeavored to make a meaningful change in his life since his conviction." R. 47.

Drobny appealed to the BIA, which affirmed the IJ. The Board's opinion first holds that Drobny's deportability was established by "clear, unequivocal and convincing evidence," pursuant to Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The opinion also upheld the denial of Drobny's 212(c) motion but noted that rehabilitation was not a prerequisite for section 212(c) relief but merely one of several factors to be taken into account, citing In re Edwards, Interim Decision 3134 (BIA 1990). The Board emphasized that

whether or not it is in the best interest of the United States to allow the respondent to remain in this country, the respondent's case should be simply a balancing of the favorable and adverse factors he presents in support of his application for a waiver. Whether or not there are any "outstanding equities" required under Matter of Buscemi, in order for an alien to be granted a waiver is of no bearing in this case.

Op. at 3. The opinion concludes, despite the IJ's possible Buscemi error, that the balance of equities supported Drobny's deportation. "The evidence presented displays nothing to persuade us that it is in the best interest of the country to allow an alien who has violated our laws, particularly a narcotics violation, to remain here as a lawful permanent resident." Id. From this decision Drobny now appeals.

II.

A. Standard and Scope of Review

Judicial review is provided by 8 U.S.C. § 1105a(a)(4) (1988), which provides, "[T]he petition [for review] shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." All issues of law we review de novo. Barraza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir.1990). We must decide whether the absence of a translator for Drobny or his mother violated procedural rights ensured by the Act or the due process clause. We must also assess whether the IJ was correct in excluding consideration of Drobny and Anna's relationship, including the possibility of pregnancy, as a factor to be considered by the IJ under section 212(c).

B. Entitlement to Translator

1. Drobny

It is well established that the subject of a deportation hearing enjoys due process rights. Japanese Immigrant Case, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.1991). Congress has set by statute certain standards a fair hearing must include, 8 U.S.C. § 1252(b) (1988), among which is the requirement that

the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; ...

8 U.S.C. § 1252(b)(3). In addition, INS regulations require that the alien have the opportunity to present and understand evidence. 8 C.F.R. § 236.2 (1990) ("The Immigration Judge shall ... advise [the alien] that he will have a reasonable opportunity to present evidence in his own behalf, to examine and object to evidence against him, and to cross-examine witnesses presented by the Government.").

Drobny first claims that his English was too poor for the hearing to be conducted without a translator. As part of the right to present evidence and to cross-examine witnesses, an alien who does not understand English has the right to a translator. Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982); Niarchos v. INS, 393 F.2d 509, 511 (7th Cir.1968). But the decision whether an alien needs translation services is clearly within the discretion of the immigration judge, a decision we will not overturn absent an abuse of discretion. Cf. El Rescate Legal Services, Inc. v. Executive Office for Immigration Review, 727 F.Supp. 557, 560 (C.D.Cal.1989) ("Unless they can hear in their own language what transpires, the aliens' ability to participate in and respond to the proceedings is doubtful and their right to be present is meaningless."), rev'd, 941 F.2d 950 (9th Cir.1991) (affirming "reasonable opportunity to be present, to examine and present evidence" but holding state not obligated to provide translation of entire proceeding). The IJ directly checked at least twice whether Drobny understood English well enough to proceed.

Q: Sir, when I spoke to...