Nelson v. Immigration & Naturalization Service

• Decision Date: 11 September 2000
• Docket Number: No. 99-2283,99-2283
• Citation: 232 F.3d 258
• Parties: (1st Cir. 2000) LAEILA NELSON, STEPHANIE NELSON, PHIL NELSON, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 258

232 F.3d 258 (1st Cir. 2000)

LAEILA NELSON, STEPHANIE NELSON, PHIL NELSON, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-2283

United States Court of Appeals, First Circuit.

Heard Sept. 11, 2000.

Decided October 27, 2000.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

[Copyrighted Material Omitted]

Alan M. Pampanin, with whom Pampanin Law Offices was on brief, for petitioners.

Lisa M. Arnold, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Terri Jane Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Torruella, Chief Judge, Stahl and Lipez, Circuit Judges.

TORRUELLA, Chief Judge.

Laeila Nelson, a citizen of Suriname, appeals a final order of the Board of Immigration Appeals (BIA) affirming a deportation order which denied her application for asylum and withholding of deportation. ¹ She claims that the BIA's failure to grant her a new hearing violated her right to due process, specifically her right to counsel. Nelson also claims that the BIA erred in its finding that she was ineligible for asylum and withholding of deportation under 8 U.S.C. 1101(a)(42), 1158(a), and 1253(h). Because we find these arguments unpersuasive, we affirm the BIA's decision.

BACKGROUND

Laeila Nelson left Suriname in December of 1994 and settled in Somerville, Massachusetts. Within two months of her arrival, she applied for political asylum and withholding of removal pursuant to the Immigration and Nationality Act (INA) 208(a) and 243(h), 8 U.S.C. 1158(a), 1243(h). Her application was made without the assistance of counsel.

The Immigration and Naturalization Service (INS) began deportation proceedings against Nelson and her two children, charging them with deportability under INA 241(a)(1)(B), 8 U.S.C. 1251(a)(1)(B), for remaining in the United States beyond the time permitted under their non-immigrant visas. At an initial deportation hearing on January 2, 1996, Immigration Judge Patricia Sheppard (the "Immigration Judge") informed Nelson of her right to be represented by counsel "at no cost to the government," provided her with a list of pro bono attorneys, and continued the hearing until April 24, 1996, so that Nelson would have time to find adequate counsel if she chose to do so.

On April 24, 1996, Nelson again appeared without counsel. The Immigration Judge asked Nelson if she had retained an attorney; Nelson responded in the negative. The Immigration Judge then told Nelson that she would have to represent herself. Upon determining that Nelson had stayed beyond the expiration of her temporary visa, the Immigration Judge found that her deport ability had been established, and continued the asylum hearing until March 17, 1997. The judge again told Nelson that she would have the interim period to find counsel.

At the March 17, 1997 hearing, Nelson again appeared without the assistance of counsel. The Immigration Judge proceeded to ask her questions about her asylum claim. Nelson then indicated that she had a severe headache, which hindered her ability to answer questions related to her claim. At times, Nelson took more than five minutes to answer the Immigration Judge's queries; and at one point, Nelson noted that "my memory . . . is bad and so I forget things and get pain. I'm not capable of defending myself." After admonishing Nelson that she would not be entitled to further continuances, the Immigration Judge continued the case until April 2, 1997. No admonishment with respect to retaining counsel was made at this time.

At her final hearing before the Immigration Judge, on April 2, 1997, again lacking counsel, Nelson testified as to the facts forming the basis for her asylum claim. The Immigration Judge found that her testimony lacked sufficient specific evidence to support her application, and that even if the evidence was viewed in the light most favorable to Nelson, she had not shown either "persecution" or a "well-founded fear of persecution," as required for asylum under 208. Nelson also did not meet the more stringent standard required for withholding of deportation under 243. ² Nelson and her family were granted their request for voluntary departure, giving them 30 days to leave the United States of their own accord.

After retaining counsel, Nelson appealed the Immigration Judge's decision. Despite considering new evidence adduced by Nelson on appeal and conducting a de novo review of the prior record, the BIA concluded that Nelson did not qualify for asylum under 208.

DISCUSSION

I. Violation of Due Process

We first examine Nelson's claim that the Immigration Judge effectively denied her statutory rights to counsel and a full and fair hearing, and thus violated her Fifth Amendment right to due process. Because deportation is a civil proceeding, rather than a criminal one, the Sixth Amendment does not create a right to government-provided counsel for prospective deportees. See INS v. L≤pez-Mendoza, 468 U.S. 1032, 1038-39 (1984). However, an alien is afforded the right to counsel at his own expense. See, e.g., Ros-Berros v. INS, 776 F.2d 859, 862 (9th Cir. 1985).

Nelson makes three separate but related due process claims, and we evaluate each in turn.

A. Mental Incompetence

Nelson suggests that the Immigration Judge's failure to account for her mental incompetence by requesting a custodian or other party to appear on her behalf was a violation of her right to due process. The INS has specifically provided for custodial or other representation of incompetent aliens in Regulation 240.4. ³ Nelson claims that her March 17, 1997 statement that her "memory . . . is bad," that she "forget[s] things and . . . get[s] pain," and thus that she was "not capable of defending [her]self" was a statement of mental incompetency; and as such, that the Immigration Judge was required to request a representative for her. However, Regulation 240.4 is not applicable to this case, simply because Nelson's health-related complaints do not rise to the level of mental incompetence contemplated by Regulation 240.4. Cf. Nee Hao Wong v. INS, 550 F.2d 521, 522 (9th Cir. 1977) (Regulation 240.4 used to deport institutionalized petitioner).

B. Failure to Follow INS Statutory Regulations

An agency has the duty to follow its own federal regulations, even when those regulations provide greater protection than is constitutionally required. See Accardi v. Shaughnessy, 347 U.S. 260, 265-68 (1954) (applying doctrine for first time to immigration case). Failure to follow applicable regulations can lead to reversal of an agency order and a new hearing. See id. at 268. The Second Circuit has noted some confusion over whether a litigant claiming that an agency failed to follow its own regulations must prove that the failure was prejudicial. See Montilla v. INS, 926 F.2d 162, 166-69 (2d Cir. 1991) (deciding that, at least where the right to counsel was touched by the regulation in question, proof of prejudice was not necessary); Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994) (limiting Montilla to "fundamental" constitutional or statutory rights). We need not determine whether a fundamental right was at issue, nor whether Nelson must show prejudice, because we find no evidence that the Immigration Judge violated any INS regulation.

Appellant makes much of Regulation 240.4, discussed above. Given the limited nature of Nelson's symptoms at the March hearing, we can not conclude that the Immigration Judge violated this regulation. Finally, the record indicates that the Immigration Judge followed the specific requirements of Regulation 240.10, 8 C.F.R. 240.10, as they pertain to the conduct of the deportation hearing.

C. Failure to Follow Immigration Judge Benchbook

Nelson similarly claims that the Immigration Judge's failure to follow her Benchbook guidelines deprived Nelson of her right to counsel and thus is a violation of due process. Even if a failure to follow Benchbook guidelines can, like a failure to follow agency regulations, lead to reversal, and even if Nelson need not show prejudice to gain reversal for a violation of Benchbook guidelines, we find no such violation here.

The key Benchbook provision in question is III.D.3, which instructs the Immigration Judge, in relevant part, to:

[E]xplain the right to counsel, emphasizing that free legal services may be available. Impress upon the respondent that he/she must decide whether to retain counsel. . . . The explanation of the right to counsel must be a meaningful one and you must tailor the explanation to the individual respondent. . . . If the respondent is undecided as to counsel, it may be proper to grant a short postponement.

Appellant reads this provision as requiring an Immigration Judge to "admonish" a potential deportee, at any and every hearing, that she may want to retain counsel. The record indicates, and appellant admits, that Judge Sheppard adequately explained the right to counsel more than once. Judge Sheppard also postponed Nelson's hearing several times to allow her to find counsel, an action suggested, but not mandated, by the Benchbook. Cf. Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986) (upholding refusal to grant second continuance where petitioner had "adequate opportunity to obtain counsel" and had simply been unable to do so). In sum, the Immigration Judge adhered to the Benchbook rules.

II. Eligibility for Asylum

An alien may be eligible for asylum if she "is a refugee within the meaning of [8 U.S.C. ] 1101(a)(42)(A). . . ." 8 U.S.C. 1158(b)(1). "Refugees" are defined as persons "unable or unwilling to return [to their country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. . . ." 8 U.S.C. 1101(a)(...