Montilla v. I.N.S.

• Decision Date: 12 February 1991
• Docket Number: D,No. 411,411
• Citation: 926 F.2d 162
• Parties: Rafael MONTILLA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 90-4058.
• Court: U.S. Court of Appeals — Second Circuit

Page 162

926 F.2d 162

59 USLW 2514

Rafael MONTILLA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 411, Docket 90-4058.

United States Court of Appeals,

Second Circuit.

Argued Oct. 3, 1990.

Decided Feb. 12, 1991.

Maria E. Liz, New York City (Liz & Botshon, New York City, of counsel), for petitioner.

Diogenes P. Kekatos, Asst. U.S. Atty., S.D. New York (Marla Alhadeff, Asst. U.S. Atty., Otto G. Obermaier, U.S. Atty. S.D. New York, New York City, of counsel), for respondent.

Before CARDAMONE and MINER, Circuit Judges, and POLLACK, District Judge ^*.

CARDAMONE, Circuit Judge:

This appeal presents one central issue for review: to what degree must an immigration The notion of fair play animating that amendment precludes an agency from promulgating a regulation affecting individual liberty or interest, which the rule-maker may then with impunity ignore or disregard as it sees fit. The INS may not fairly administer the immigration laws on the notion that on some occasions its rules are made to be broken. Because in our view the immigration judge did not adhere strictly to the INS regulations in this case, we grant the petition for review and remand the matter to the INS for a new hearing.

judge comply with INS regulations designed to safeguard an alien's right to counsel, even when those regulations may be more stringent than required by the due process clause of the Fifth Amendment. The constitution guarantees only those "minimal historic safeguards" which persons are entitled to receive, summarized under the Fifth Amendment as due process of law. See McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943) (Frankfurter, J.).

FACTS

Rafael Montilla petitions for review of a final order of deportation of the United States Immigration and Naturalization Service's (INS) Board of Immigration Appeals (Board or Board of Appeals) dated March 22, 1990. Petitioner, a 44-year-old citizen of the Dominican Republic, entered the United States as a lawful permanent resident on March 17, 1973, and has resided here continuously--except for a brief visit home in 1979--for the past 17 years. On November 4, 1986 Montilla was convicted after a jury trial in the Southern District of New York (Broderick, J.) of conspiracy to possess cocaine with intent to distribute it in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(B), and sentenced to a six-year term of imprisonment. We affirmed the conviction in an unpublished opinion dated October 2, 1987. Six months later, on May 4, 1987, while petitioner was in prison, the INS served upon him an order to show cause and notice of hearing, alleging that his cocaine conviction rendered him deportable under Sec. 241(a)(11) of the Act. 8 U.S.C. Sec. 1251(a)(11) (1988).

A deportation hearing was held on January 25, 1989 before an immigration judge at the Oakdale Detention Facility in Oakdale, Louisiana. The judge, noting that petitioner was present at the hearing without counsel, informed him of the nature of the proceedings and of certain rights he had throughout the deportation process, including the right to have an attorney represent him in the proceedings at no expense to the government. The judge gave petitioner a list of attorneys who might be able to represent him at little or no fee. When Montilla was then asked if he wished to have an attorney or to proceed without one, he responded

In reality I really don't know what to do. I am unfamiliar with the laws of Immigration. This is the first time that I find myself in this type of situation. As I indicated I am not really sure what to do. I would consider that you are an honorable person and Honorable Judge and I really don't know what I should do.

The judge thereupon adjourned the hearing to allow petitioner more time to consider what he wanted to do.

The judge opened the resumed hearing on February 10, 1989 stating

Mr. Montilla, we met on the 25th day of January, 1989, and I read all your rights to you at that time. At that time sir, you asked for more time to determine what you wanted to do. Now I note that you have been a resident since 1973?

With that opening, the hearing began in earnest, and no further mention or inquiry was made regarding petitioner's wishes with respect to his right to counsel. Although Montilla had twice moved unsuccessfully to vacate his conviction, pursuant to 28 U.S.C. Sec. 2255, the drug conviction is considered final and a basis for deportation when appellate review of the judgment--not including collateral attacks--has become final. See Marino v. INS, 537 F.2d 686, 691-92 (2d Cir.1976). Upon petitioner's conceding that he had been convicted of a narcotics violation, the immigration At the same hearing, petitioner submitted an application for a waiver of inadmissibility pursuant to Sec. 212(c) of the Act, which provides, in pertinent part:

judge properly found deportability established.

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1)-(25), (30) and (31) of subsection (a) of this section.

8 U.S.C. Sec. 1182(c) (1988). Paragraphs 1-25, 30 and 31 of Sec. 1182(a), list grounds of exclusion from the United States--including paragraph (9) convictions for narcotics offenses. Although facially limited to exclusion proceedings, the waiver provision has been applied in deportation proceedings to lawful permanent residents who meet the seven-year eligibility requirements, but who have not departed from the United States. See Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976); Matter of Silva, 16 I & N Dec. 26, 30 (BIA 1976). Thus, the waiver provision is applicable to Montilla. The immigration judge adjourned the hearing until March 6, 1989, intending to take up petitioner's Sec. 212(c) waiver application at that time.

When the hearing resumed on March 6, the judge again noted petitioner was present without counsel. Montilla's application for Sec. 212(c) relief was admitted into evidence. Included with it were supporting documentary proof, including letters from previous employers indicating he held both a day and a night job prior to his arrest in 1986, a certificate indicating he had participated in the prison's chapel worship program, and a memorandum from the Head Chaplain at the prison stating his belief that Montilla was a "hard worker," "a most active participant in our chapel worship programs," and a man "determined to improve his position in society." Petitioner testified to his family relationships and to the presence of several relatives in the U.S., including a wife and several children. During subsequent questioning, petitioner denied any involvement in narcotics trafficking, despite his previous concession regarding his outstanding conviction.

The immigration judge ruled from the bench that petitioner's deportability was established by evidence that was "clear, convincing, and unequivocal." After balancing the factors in Montilla's favor--long-term residence in the United States, majority of family in the country including immediate family, stable employment history, and active church membership--against the single factor against him--conviction for a narcotics offense, described as an "extremely serious act"--the court found that the negative factors outweighed the positive ones and denied relief under Sec. 212(c) of the Act.

Montilla appealed the immigration judge's decision to the Board of Appeals contending that he had been denied due process because he did not knowingly waive his right to counsel. On March 22, 1990 the Board dismissed the appeal, with one member dissenting. It observed that Montilla had been provided with a list of immigration lawyers practicing in the area where the hearing took place, had been afforded a two-week continuance in order to obtain an attorney, and did not request an opportunity to secure counsel when the hearing reconvened. The Board held petitioner had effectively waived his right to counsel.

It further noted that were it improper to proceed without further inquiry by the judge regarding the waiver of counsel, "respondent would be required to demonstrate prejudice before we would grant a new hearing, and he has not done so." After an analysis of the factors set forth in Matter of Marin, 16 I & N Dec. 581 (BIA 1978), and the evidence presented at the deportation hearing, the Board concluded that even if an "attorney could have assisted the petitioner in demonstrating additional factors" militating in favor of relief under Sec. 212(c) of the Act, a heightened demonstration of unusual equities had to be made in a case such as petitioner's, where an On appeal, petitioner's sole contention is that the immigration judge did not follow the applicable regulation protecting an alien's right to counsel, 8 C.F.R. Sec. 242.16(a) (1990), and that this error constituted a denial of due process. The INS asserts that petitioner waived his right to counsel or, in the alternative, that in any event he suffered no prejudice from lack of counsel.

alien has been convicted of a serious drug trafficking offense. The Board also stated that Montilla had not demonstrated rehabilitation or contrition since he had continued to deny any involvement in narcotics trafficking. The dissenting Board member would have remanded for a new hearing based on the immigration judge's failure to make sufficient inquiry regarding petitioner's right to counsel.

DISCUSSION

I INS Regulations

We turn first to the regulations at issue in this case. Because a deportation proceeding is civil, not criminal, in nature, various constitutional protections are not required. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483-84, 82 L.Ed.2d 778 (1984)...