Murgia-Melendrez v. United States Immigration & Nat. Serv.
Decision Date | 05 February 1969 |
Docket Number | No. 22428.,22428. |
Parties | Faustino Rafael MURGIA-MELENDREZ, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
William James Zumwalt (argued), San Diego, Cal., for appellant.
James Stotter II (argued), Asst. U. S. Atty., Wm. M. Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Los Angeles, Cal., Joseph Sureck, Reg. Counsel, San Pedro, Cal., Stephen M. Suffin, INS, San Francisco, Cal., Ramsey Clark, Atty. Gen., Washington, D. C., for appellee.
Before BARNES, DUNIWAY and ELY, Circuit Judges.
Petitioner, a native and citizen of Mexico, was convicted on April 25, 1967, in the Superior Court of the State of California in and for the County of San Diego, of possession of marijuana, a violation of § 11530 of the Health and Safety Code of that State. He was then nineteen years old. On June 26, 1967, a deportation hearing was convened. Appellant attended unrepresented by counsel and was found deportable, because of his conviction, under section 241(a) (11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (11).
Petitioner, through counsel, challenged the decision in the Board of Immigration Appeals which, pointing out that remanding the case would be fruitless since no discretionary relief was available to petitioner, dismissed the appeal. Petitioner seeks review in this court under 8 U.S.C. § 1105.
The challenge to the Board's decision is purely procedural; petitioner makes no exception to the state conviction or its consequences. Two assignments of error are summarized from petitioner's analysis of the original proceedings: (1) That 8 U.S.C. § 1252(b) (2), which requires an alien to obtain counsel at his own expense, violates petitioner's Sixth Amendment rights; (2) that petitioner did not make a knowing waiver of counsel.
Our review of the record and examination of controlling case law compels us to reject both of these points; we affirm the holding of the Board of Immigration Appeals.
At the hearing, petitioner was informed of his rights by the Special Inquiry officer, pursuant to 8 U.S.C. § 1252 and 8 C.F.R. § 242.16(a):
Petitioner, who admits he speaks and comprehends English, and who does not claim to be an indigent, argues that these measures are inadequate under the Sixth Amendment mandate. It is petitioner's position that these proceedings, because of their potential consequences, are of a criminal nature, like those faced by a juvenile in the In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) situation. It follows, contends petitioner, that because a stringent standard of due process must be observed, effective representation can only be obtained through counsel. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) are evidence of the premium placed on adequate legal representation by the Supreme Court. Petitioner reasons that he should have received instructions that counsel would be provided — at government expense if necessary — if he desired it.2
We decline to endorse petitioner's position because of compelling case law which has rejected this line of reasoning. The Supreme Court has repeatedly held that a deportation proceeding is not a criminal prosecution. Woodby v. Immigration Service, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923); Diric v. Immigration & Nat. Serv., 400 F.2d 658 (9th Cir. 1968). It follows, inevitably, that petitioner cannot rely on criminal case law. Nason v. Immigration & Nat. Serv., 370 F.2d 865, 868 (2d Cir. 1967); Ah Chiu Pang v. Immigration & Nat. Serv., 368 F.2d 637, 639 (3d Cir.), cert. denied 386 U.S. 1037, 87 S.Ct. 1490, 18 L.Ed.2d 601 (1966). The first assignment of error is without merit.
Petitioner's second contention is that his failure to enploy an attorney was not a knowing waiver of petitioner's right to counsel. Petitioner argues that he was not informed that he faced deportation or that he would receive only one hearing on the merits of his case.
The show cause order received by petitioner is titled "In Deportation Proceedings under Section 242 of the Immigration and Nationality Act" and reads, in the center of its first page, "it is charged that you are subject to deportation. * * *" Before asking petitioner whether or not he had counsel, the hearing examiner posed this question which was answered in the affirmative:
The opinion of the Board of Immigration Appeals states:
(R.T. at 3.)
Viewed against this background, petitioner's claim of his being unaware of the nature and consequence of the proceedings is unpersuasive. Since "it is clear that the privilege of being represented by counsel expressed in...
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