Pilapil v. Immigration and Naturalization Service, No. 270-69.

• Citation: 424 F.2d 6
• Decision Date: 27 April 1970
• Docket Number: No. 270-69.
• Parties: Procio Rivero PILAPIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

424 F.2d 6 (1970)

Procio Rivero PILAPIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 270-69.

United States Court of Appeals, Tenth Circuit.

March 20, 1970.

Rehearing Denied April 27, 1970.

John A. Kintzele, Denver, Colo., for petitioner.

Leonard W. D. Campbell, Denver, Colo. (James L. Treece, U. S. Atty., and Gordon L. Allott, Jr., Asst. U. S. Atty., Denver, Colo., with him on the brief) for respondent.

Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS,^* District Judge.

HICKEY, Circuit Judge.

This case arises out of a petition to review an order of The Board of Immigration Appeals as provided for by Section 106(a) of the Naturalization and Immigration Act of 1952 (hereinafter the Act), 8 U.S.C. § 1105a¹ as amended (1961). The Board order dismissed an appeal from the decision of a Special Inquiry Officer in a deportation proceeding which found that "after admission as a nonimmigrant student under Section 101(a) (15) of said act he failed to comply with the conditions of the nonimmigrant's status under which he was admitted," that he was therefore deportable pursuant to Section 241(a) (9) of the Act, and that he was not eligible for requested permission to remain permanently as an immigrant with a worldwide quota preference. The officer also denied Pilapil's application for voluntary departure.

Pilapil conceded his deportability under Section 241 of the Act and does not here contest this aspect of the officer's finding. Likewise, he does not argue that the Special Inquiry Officer and the Board of Immigration Appeals abused their discretion in denying him the right of voluntary departure from the country. Instead, Pilapil has consolidated the twelve points relied on in his petition for review to the following four issues:

1. Whether petitioner had a right to counsel in the deportation hearing and whether that right was violated?

2. What evidence of, or notice of, the conditions allegedly not complied with must be taken at the administrative hearing or made part of the record?

3. Whether the statutory subsection 8 U.S.C. § 1251(9) is too vague and does it involve an unconstitutional delegation?

4. Does it violate due process to prohibit a lawfully admitted "nonimmigrant" student from working without first obtaining permission to do so from the Immigration and Naturalization Service?

None of these issues were specifically raised in the hearing which was conducted pursuant to the provisions contained in 8 U.S.C. § 1252(b) and consequently are not specifically reflected in the record upon which the order is based. 8 U.S.C. § 1105a(a) (4)² limits us to consideration of the administrative record in ruling on the petition. Thus, we must decide initially whether or not under the limited review statute issues not presented in the administrative record to the executive officer to whom authority has been delegated is outside the record and not reviewable by us.

At the outset it is clear that Pilapil could get judicial review of these issues by writ of habeas corpus when taken into custody pursuant to the deportation order. 8 U.S.C. § 1105a(a) (9).³ Foti v. Immigration and Naturalization Service, 375 U.S. 217, 231, 84 S. Ct. 306, 11 L.Ed.2d 281 (1963). It is not clear, however, that the availability of habeas corpus takes consideration of these issues beyond our reach.

The jurisdictional reach of § 1105a has been considered on three occasions by the Supreme Court. Acknowledging the statutory language "the procedure * * * shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * made against aliens within the United States * * * except that —," the court expanded the reach of the exclusive jurisdiction in the Court of Appeals to include a request made in the course of a section 242(b) deportation proceeding, 8 U.S.C. § 1252(b), for a suspension of deportation under section 244(a) (5), 8 U.S.C. § 1254(a) (5), (1964). Foti,supra. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) decided that the Court of Appeals also has exclusive jurisdiction to review a denial of a motion to reopen a section 242(b) proceeding. In Cheng Fan Kwok v. Immigration & Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968) it was held that the exclusive jurisdiction of the Court of Appeals was limited to orders arising from the proceedings for deportation provided in section 242(b). We are limited by these to review of questions arising from the proceedings as reflected in the administrative record.

Thus, if Pilapil were protesting the factual determination that he is deportable or the refusal to grant him the privilege of voluntary departure, our jurisdiction would be clear. In that case, the petitioner, to have the decision overturned, would have to show that the decision is without rational basis and is arbitrary, capricious or an abuse of discretion. Foti, supra.

The tenor of the issues raised by Pilapil, however, is not that the deportation order is not called for by the facts given, but rather that to deport him under the circumstances here would be unconstitutional. Recognizing that these issues could be raised in a habeas corpus proceeding, we do not feel that this precludes the court from considering them.

As was stated by the Ninth Circuit in reviewing an exercise of discretion by an immigration official, "the function of this court is limited to insuring that this discretion is not abused, and that petitioner has been afforded a full and fair hearing that comports with due process." Antolos v. Immigration and Naturalization Service, 402 F.2d 463, 464 (9th Cir. 1968). See also, Jarecha v. Immigration and Naturalization Service, 417 F.2d 220, 225 (5th Cir. 1969), Yiannopoulos v. Robinson, 247 F.2d 655, 656-657 (7th Cir. 1957).

The facts needed to treat the issues raised by Pilapil are set out in the administrative record. Nothing in the limited jurisdictional statute is explicit in directing that only issues raised at the hearing may be raised on a petition for review. While the issues raised do not question Pilapil's deportability under the statute, if they are well taken, the order itself would be voided. See Ferrante v. Immigration and Naturalization Service, 399 F.2d 98, 103 (6th Cir. 1968) and cases cited. Because constitutional issues are concerned and because of the outcome we reach, we hold that we are not precluded from considering the issues raised by Pilapil.

The administrative record reflects that Pilapil appeared without counsel for a deportation hearing on January 28, 1969. He was advised he had a right to counsel at his own expense and exercised the right. The hearing was postponed for the purpose of permitting him to obtain a lawyer. Approximately 30 days thereafter, on February 25, 1969, petitioner appeared with Mr. Daniel H. Schoedinger, who identified himself as follows: "I am a law student at the University of Denver. I am here on behalf of the Legal Aid Society for Mr. Pilapil."

Section 242(b) (2) of the Act provides "the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as he shall choose; * * *." It is contended by petitioner that Schoedinger did not satisfy the requirements of a "counsel" because he was not authorized to act as an attorney in a deportation hearing.

2 Colo.Rev.Stat. § 12-1-19 (1963): "Students of any law school which has been continuously in existence for at least ten years prior to the passage of this section and which maintains a legal aid dispensary where poor persons receive legal advice and services, shall when representing said dispensary and its clients and then only be authorized to appear in court as if licensed to practice."

Pilapil argues that the foregoing provision does not qualify the law student to act as counsel in Federal Immigration proceedings. The contention may be true because deportation proceedings are administrative rather than judicial. Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082 (1939).

8 C.F.R. § 292.1(c) (1958) provides: "Accredited representatives. A person may be represented by an accredited representative of an organization described in section 1.1(j) of this chapter."

8 C.F.R. 1.1(j) (1965) provides: "The term `representative' means a person representing a religious, charitable, social-service, or similar organization established in the United States and recognized as such by the Board, or a person described in § 292.1(b), (d), or (h) of this chapter." At the hearing now questioned the petitioner's representative identified himself in the record as being there "on behalf of the Legal Aid Society."

Legal Aid Society is "an organization providing free help in legal guidance and service to persons who cannot afford a lawyer." Random House Dictionary, p. 818 (Unabridged ed. 1966). Thus, Pilapil's representative qualifies.

The thrust of present counsel's complaint against "the law student" is that he permitted an admission of deportability. However, the Supreme Court in Foti, supra 375 U.S. at 227, 84 S.Ct. at 313 footnote 13, recognized "deportability is conceded in about 80% of the cases." It is therefore evident that the strategy of the petitioner's counsel in representing his client places him with the great majority of experienced representatives. The argument is without merit in view of the record made by the petitioner's legal aid counsel, and in view of the fact that Pilapil himself when testifying conceded the elements of deportability.

The specifics of the order to show cause answer the second issue above set forth. In the order, Pilapil is identified as a native and citizen of the Philippines, not a citizen or national of the United States. Violation of section 241(a) (9) of the Immigration and Naturalization Act is charged, "in that after admission as a nonimmigrant under section 101(a) (15) of said...