Patel v. U.S. I.N.S., 85-4888

Decision Date28 May 1986
Docket NumberNo. 85-4888,85-4888
PartiesBhima Nathubhai PATEL, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Marshall M. Taheri, Houston, Tex., David H. Lambert, Dist. Director, I.N.S., New Orleans, La., Paul B. O'Neill, Dist. Director, Houston, Tex., for respondent.

Robert L. Bombough, Madelyn E. Johnson, Allen W. Hausman, Millicent Y. Clarke, Robert Kendall, Jr., Washington, D.C., for petitioner.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before RUBIN, JOHNSON, and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge:

Bhima Nathubhai Patel appeals the order of deportation entered, in absentia, by the immigration law judge and affirmed by the Board of Immigration Appeals. Because we find Patel's due process challenge to the proceeding meritless, we AFFIRM.

Patel, a native of India and a citizen of England, was summoned to a deportation hearing after exceeding two authorized stay periods. Patel was notified, on May 19, 1985, of the hearing which was scheduled for June 19, 1985. Patel's first attorney requested a continuance because of a schedule conflict, which was subsequently resolved. Patel's replacement attorney, upon being retained about a week before the hearing, also requested a continuance, which was denied. The hearing commenced as scheduled, but neither Patel nor his attorney appeared. The immigration judge proceeded in absentia, and after reviewing the documentary evidence, ordered Patel deported to England, or alternatively to India.

On appeal to this court, Patel first urges that, by proceeding in absentia, the immigration judge impermissibly violated his fifth amendment right to due process as well as his sixth amendment and statutory right to counsel of his choice. Because deportation is a purely civil proceeding, "various protections that apply in the context of a criminal trial do not apply in a deportation hearing." INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 3484, 82 L.Ed.2d 778 (1984). Patel does have a statutory right to representation (but not at government expense) pursuant to section 242 of the Act, 8 U.S.C. Sec. 1252(b). Contrary to his assertion, however, his constitutional claim is rooted not in the sixth amendment right to counsel, but in the fifth amendment right to due process. Ramirez-Osorio v. INS, 745 F.2d 937, 944 (5th Cir.1984); Barthold v. INS, 517 F.2d 689, 690 (5th Cir.1975). The question whether his due process rights have been abridged depends on whether he was afforded a fair hearing. The fact that the hearing was held in absentia is not per se violative of due process. Shah v. INS, 788 F.2d 970 (4th Cir.1986). See also United States v. Dekermenjian, 508 F.2d 812 (9th Cir.1974).

Section 242(b), which sets forth the test for when an in absentia proceeding is permissible, provides, in pertinent part:

If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present. (emphasis added).

Patel was clearly afforded a "reasonable opportunity to be present." He and his first attorney received notice of the hearing the month before the scheduled date. His second attorney became apprised of the hearing date no later than a week before the hearing, on July 11, when he submitted a request for continuance. Further, the notice contained clear warnings of the consequences to Patel for failing to appear, including the possibility of an in absentia hearing as well as an order of deportation being entered.

Patel's failure to appear may be excused if he demonstrates "reasonable cause" for his absence. In his appeal to the Board, however, Patel offered no reason for not appearing, and in his appeal to this court, he elaborates that he did not attend the hearing at the advice of his attorney. Patel's counsel contends that...

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