Ramirez v. Immigration and Naturalization Service

• Decision Date: 25 March 1977
• Docket Number: No. 76-2113,76-2113
• Citation: 550 F.2d 560
• Parties: Maria RAMIREZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 560

550 F.2d 560

Maria RAMIREZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 76-2113.

United States Court of Appeals Ninth Circuit.

March 25, 1977.

Antonio H. Rodriguez, submitted on briefs, Eiden, Rodriguez & Silbiger, Los Angeles, Cal., for petitioner.

William D. Keller, U.S. Atty., submitted on briefs, Los Angeles, Cal., Brian H. Simpson, Trial Atty., I&NS, San Francisco, Cal., Richard Thornburgh, Asst. Atty. Gen., Crim. Div., Dept. of Justice, Washington, D.C., Bernard S. Karmiol, Regional Counsel, I&NS, San Pedro, Cal., Bernard J. Hornbach, District Director, I&NS, Los Angeles, Cal., for respondent.

Petition to Review a Decision of the U.S. Immigration & Naturalization Service.

Before ELY, CHOY and SNEED, Circuit Judges.

SNEED, Circuit Judge:

Petitioner seeks review by this Court of an order of deportation and a denial of her application for voluntary departure. We affirm.

Petitioner, a citizen and native of Guatemala, paid $250 to be smuggled into the United States. She made her illegal entry near San Ysidro, California, in September 1974, without being inspected or admitted by an immigration officer. Petitioner was arrested by immigration officials on September 5, 1975, and an Order to Show Cause was issued, charging her with deportability under section 241(a)(2) of the Immigration and Nationality Act (8 U.S.C. § 1251(a)(2) (1970)), as having entered the United States without inspection. Petitioner gave her maiden name and stated that she was single when interviewed by the immigration investigator, although she was in fact married and her husband was also the subject of deportation proceedings.

A deportation hearing was held October 22, 1975, at which time petitioner again gave only her maiden name. Petitioner did not appear with counsel at this hearing although a notice of appearance had been filed by an attorney. Petitioner was accompanied by a Stephen Hollopeter, not an attorney, and was advised off the record by the immigration judge that Hollopeter was not qualified to represent her under the current agency regulations. Petitioner was informed that she had the right to be represented by counsel of her choice, qualified to appear at immigration proceedings, at no expense to the Government. She replied that she did not have the money to retain counsel but was willing to proceed without counsel. The immigration judge thereupon provided petitioner with a list of organizations which might represent her without charge and adjourned the hearing until October 30, 1975, in order to allow her to arrange for proper representation.

At the second hearing, petitioner again appeared without counsel and accompanied by Hollopeter. She explained that she had not been able to secure counsel without charge, although she failed to contact at least two of the organizations referred to her by the immigration judge. She further indicated that she desired to be represented only by Hollopeter because he had attempted to represent her husband in deportation proceedings and because "he has defended other cases, and I know that he can." (Record at 18.) The immigration judge ruled that Hollopeter was not qualified to represent others in deportation proceedings and ordered that the hearing proceed without counsel inasmuch as petitioner was apparently unwilling to be represented by anyone other than Hollopeter.

During the course of this hearing petitioner admitted the truth of all the allegations of fact contained in the Order to Show Cause and was found deportable as charged. The immigration judge refused her the privilege of voluntary departure because she had deliberately tried to avoid the immigration laws and had made intentional misrepresentations to the immigration investigator. The Board of Immigration Appeals affirmed the decision of the immigration judge and dismissed petitioner's appeal. Petitioner timely filed this Petition for Review and this court has jurisdiction by 8 U.S.C. § 1105a (1970).

Petitioner contends that she was denied her due process rights under the Fifth Amendment when the immigration judge refused to allow her to be represented by Hollopeter. This contention rests on alternative assertions, viz. either that the Fifth Amendment permits her to be represented by anyone of her choice at deportation proceedings, or that Hollopeter was a qualified representative under the applicable regulations and the refusal to permit him to represent the petitioner was an abuse of discretion. This denial of her due process rights entitles her to a new hearing, the petitioner insists, without regard to whether harmful error exists. However, should harmful error be a prerequisite to relief she insists that she was prejudiced by not being informed of her right to remain silent, by some remarks at the hearing not being translated, and by not being prepared to present the equities favoring the granting of voluntary departure.

The majority hold the petitioner was not deprived of her due process rights under the Fifth Amendment. The Amendment does not permit the petitioner to be represented by anyone of her choice and Hollopeter was not qualified under the applicable regulations to represent the petitioner. We further hold that the petitioner received a full and fair hearing and was not denied due process because of the absence of counsel. The petitioner, thus, is not entitled to a new hearing. Finally, the majority hold that the denial of voluntary departure was not an abuse of discretion.

I.

Right to Counsel In Deportation Proceedings.

The rules prescribing who may represent another in deportation proceedings are presently covered by 8 C.F.R. § 292.1 (amended 1975). ¹ Under these rules representation may be by an attorney or, subject to certain restrictions, a law student, a law graduate, or a "reputable individual." One of the restrictions applicable to all, other than attorneys, is that "his appearance is permitted by the official before whom he wishes to appear." 8 C.F.R. § 292.1(a)(2)(iii), (3)(iv). The issue before us is whether these rules insofar as they deprive the petitioner of the power to be represented by anyone of her choice contravene the Fifth Amendment.

We begin by repeating once more that a deportation hearing is a proceeding that is civil, not criminal, in nature. Trias-Hernandez v. I&NS,528 F.2d 366, 368 (9th Cir. 1975). See Woodby v. I&NS, 385 U.S. 276,87 S.Ct. 482, 17 L.Ed.2d 362 (1966); Harisiades v. Shaughnessey, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Ah Chiu Pang v. I&NS, 368 F.2d 637 (3rd Cir. 1966). Constitutional due process requirements under the Fifth Amendment are satisfied by a full and fair hearing. Cf. Antolos v. I&NS,402 F.2d 463 (9th Cir. 1968). The Sixth Amendment's guarantee of the right to counsel is not applicable to deportation proceedings. Martin-Mendoza v. I& NS, 499 F.2d 918 (9th Cir. 1974); Murgia-Melendrez v. I&NS, 407 F.2d 207 (9th Cir. 1969). Mr. Justice Brandeis, in an opinion concerned with whether a deportation proceeding conformed to the Fifth Amendment, observed:

"To render a hearing unfair the defect, or practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process."

Bilokumsky v. Tod, 263 U.S. 149, 157, 44 S.Ct. 54, 57, 68 L.Ed. 221 (1923).

The rules prescribing representation set forth in 8 C.F.R. § 292.1 do not render a hearing unfair under this standard. Vesting authority in the "official before whom (the representative) wishes to appear" to grant or deny permission to appear to one not an attorney is consistent with the need of the Service to ensure that those who appear are responsible and not likely to abuse its processes. It is reasonable to assume that attorneys, each of whom is subject to professional discipline, meet these requirements. Such an assumption cannot be made with respect to anyone the alien might choose. Screening prior to granting permission to appear is reasonable and sound administrative practice. The same can be said for the Attorney General delegating the authority to screen to the official before whom the non-attorney will appear. These rules do not contravene the Fifth Amendment.

They are, moreover, consistent with the governing statutes which are8 U.S.C. §§ 1103 and 1362 (1970). In finding such consistency we are mindful that the Supreme Court places a heavy burden on those who would overturn an administrative regulation. "A regulation . . . should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority and employed means that are not at all appropriate to the end specified in the act of Congress." Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 706, 44 L.Ed. 846 (1900), followed in Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364 (1949), and Cermeno-Cerna v. Farrell, 291 F.Supp. 521 (C.D.Cal.1968).

No such palpable inconsistency exists in this instance. The Attorney General under 8 U.S.C. § 1103(a) is charged with the administration and enforcement of all immigration laws and is authorized to promulgate all regulations necessary for carrying out this authority. The right to counsel at deportation proceedings is governed by 8 U.S.C. § 1362 ² which provides as follows:

In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned 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.

This statute unmistakably limits the alien's choice of counsel to those "authorized to practice...