Matter of Santos
| Citation | 19 I&N Dec. 105 |
| Decision Date | 26 June 1984 |
| Docket Number | A-24879910.,Interim Decision Number 2969 |
| Parties | MATTER OF SANTOS. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has appealed from the December 30, 1982, summary decision of an immigration judge finding him deportable as an overstay pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982). The appeal will be dismissed.
The respondent is a 48-year-old male native and citizen of the Philippines. He entered the United States at San Francisco, California, on June 2, 1982, as a nonimmigrant visitor for pleasure who was authorized to remain in this country until August 30, 1982. He failed to depart by that date. On November 16, 1982, prior to the institution of deportation proceedings, the Immigration and Naturalization Service granted the respondent the privilege of departing voluntarily from the United States before December 15, 1982. He again failed to depart within the time allotted. On December 27, 1982, the Service arrested the respondent in Anchorage, Alaska, and commenced deportation proceedings against him by issuing an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) charging him with deportability pursuant to section 241(a)(2) of the Act for remaining in the United States longer than permitted.
A deportation hearing was convened before the immigration judge 1 day later, on December 28, 1982. At that hearing the respondent requested an opportunity to secure counsel and was granted a continuance of 1 day to do so. At the reconvened hearing on December 29, 1982, the respondent, who had been unable to retain an attorney, waived his right to counsel and, testifying in response to questions put to him by the immigration judge, admitted the factual allegations in the Order to Show Cause. In a summary decision the immigration judge found the respondent deportable as charged on the basis of his admissions. Upon ascertaining that the respondent wished to depart voluntarily instead of being deported, the immigration judge granted the respondent voluntary departure until December 30, 1982, or any extension beyond that date that may be granted by the district director. The respondent waived his right to appeal the immigration judge's decision.
On January 3, 1983, the respondent, with the assistance of counsel, filed this appeal. He contests the legality of his waivers of counsel and of appeal, challenges the sufficiency of the evidence of deportability, and contends that the Service and the immigration judge violated not only various regulations, but the fifth amendment's guarantee of due process. We shall assume jurisdiction over the case by certification as provided in 8 C.F.R. § 3.1(c) (1984), thus mooting the issue of whether the respondent effectively waived his right to appeal.
As a preliminary matter, we will address the respondent's argument that the evidence in the case is insufficient to support the finding of deportability. When an alien is charged with being deportable as an overstay pursuant to section 241(a)(2) of the Act, there must be "clear, unequivocal, and convincing evidence," Woodby v. INS, 385 U.S. 276, 286 (1966), that the alien was admitted as a nonimmigrant for a temporary period, that the period elapsed, and that he did not depart. Ho Chong Tsao v. INS, 538 F.2d 667, 668 (5th Cir. 1976), cert. denied, 430 U.S. 906 (1977); Milande v. INS, 484 F.2d 774, 776 (7th Cir. 1973); see also Torabpour v. INS, 694 F.2d 1119, 1122 (8th Cir. 1982); Cabuco-Flores v. INS, 477 F.2d 108, 110 (9th Cir.), cert. denied, 414 U.S. 841 (1973). The respondent freely admitted, under oath, that he entered the United States as a nonimmigrant, that he was authorized to remain until August 30, 1982, that he received an extension until December 15, 1982, and that he did not depart by that date. These admissions are clear, unequivocal, and convincing and prove each of the elements of the charge of deportability. See, e.g., Milande v. INS, supra. Thus, we find them wholly sufficient to support the order of deportation.
The respondent contends that we should reverse the order of deportation because his right to counsel was violated at his deportation hearing, thereby denying him due process. Specifically, the respondent argues that he was not given an adequate opportunity to obtain counsel and that he did not effectively waive his right to counsel once the hearing commenced. We do not believe the respondent was denied the privilege of counsel at his hearing. The immigration judge granted the respondent's request for a continuance so that he could have an opportunity to obtain counsel and, at the reconvened hearing, the respondent did not request more time to seek counsel or indicate he still wished to secure representation. See Millan-Garcia v. INS, 343 F.2d 825, 829 (9th Cir.), vacated and remanded on other grounds, 382 U.S. 69 (1965). In addition, the respondent's waiver of counsel appears to have been voluntary, knowing, and intelligent. There is no indication, whatsoever, that he waived counsel because of undue Government influence, nor do his statements at the time of the waiver reveal any confusion about the nature of the proceedings, his privilege of being represented, or his rights to present evidence, cross-examine witnesses, and object to the Government's evidence. See Burquez v. INS, 513 F.2d 751, 755 (10th Cir. 1975); Matter of Gutierrez, 16 I&N Dec. 226 (BIA 1977). Moreover, the immigration judge sufficiently informed the respondent of his privilege of counsel. See United States v. Barraza-Leon, 575 F.2d 218, 222 (9th Cir. 1978); Matter of Gutierrez, supra.
Nevertheless, even if the respondent was not given sufficient time to obtain counsel or did not effectively waive counsel, it does not automatically follow that he has been denied constitutional due process. We have held an alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated. Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980). This is consistent with the rule that an alien must have been prejudiced by a procedural defect in his deportation proceeding before he will be found to have suffered a denial of due process. See Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir. 1981); United States v. Calles-Pineda, 627 F.2d 976, 977-78 (9th Cir. 1980); Tejeda-Mata v. INS, 626 F.2d 721, 727 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982); see also United States v. Vega-Mejia, 611 F.2d 751, 752 (9th Cir. 1979); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238-39 (9th Cir. 1979), cert. denied, 449 U.S. 828 (1980); Bowe v. INS, 597 F.2d 1158 (9th Cir. 1979); Nicholas v. INS, 590 F.2d 802, 808-10 (9th Cir. 1979); United States v. Barraza-Leon, supra, at 221; Orozco-Rangel v. INS, 528 F.2d 224 (9th Cir. 1976); Chung Young Chew v. Boyd, 309 F.2d 857, 864-65 (9th Cir. 1962). We consider this rule to apply with equal force to the contention that an alien has been denied due process in his deportation proceeding because of conduct that amounts to a violation of his right to counsel.
The "right" to counsel does not arise by operation of the sixth amendment, for deportation proceedings are not criminal prosecutions. Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977); Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974); Murgia-Melendrez v. INS, 407 F.2d 207, 209 (9th Cir. 1969). Rather, this "right" is the opportunity, created by the Act and the regulations, of being represented by qualified counsel of choice, at no expense to the Government. See, e.g., Ramirez v. INS, supra; see also sections 242(b), 292 of the Act, 8 U.S.C. §§ 1252(b), 1362 (1982); 8 C.F.R. § 242.10 (1984). An erroneous violation of this statutory privilege is not, as a matter of law, so egregious or inherently unfair that it amounts to a per se denial of due process. For example, the ineffective assistance of counsel in a deportation proceeding does not amount to a denial of due process unless it has been unfair or has prevented an alien from reasonably presenting his case. Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir.), cert. denied, 467 U.S. 1205 (1984); Paul v. INS, 521 F.2d 194, 199 (5th Cir. 1975). Similarly, the absence of counsel at a deportation hearing does not constitute a denial of due process without some showing of prejudice to the alien. Ramirez v. INS, supra, at 562, 565; Aguilera-Enriquez v. INS, 516 F.2d 565, 569 (6th Cir. 1975); Burquez v. INS, supra, at 755; Martin-Mendoza v. INS, supra, at 922; Villanueva-Jurado v. INS, 482 F.2d 886, 888 (5th Cir. 1973); Henriques v. INS, 465 F.2d 119, 120-21 (2d Cir. 1972), cert. denied, 410...
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