Rios-Berrios v. I.N.S.

• Decision Date: 15 November 1985
• Docket Number: P,RIOS-BERRIO,No. 84-7275,84-7275
• Citation: 776 F.2d 859
• Parties: Nestor Rodrigoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 859

776 F.2d 859

Nestor Rodrigo RIOS-BERRIOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7275.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1985.

Decided Nov. 15, 1985.

Howard Dawson, Los Angeles, Cal., for petitioner.

Evelyn Matteucci, Los Angeles, Cal., for respondent.

Petition to Review a Decision of the United States Immigration & Naturalization Service.

Before CHAMBERS, TANG and WIGGINS, Circuit Judges.

CHAMBERS, Circuit Judge:

Rios-Berrios petitions for review of the decision of the Board of Immigration Appeals (B.I.A.) ordering his deportation and denying his application for asylum or withholding of deportation. While he argues that the evidence is not sufficient to support the decision, he also contends that he was denied the opportunity to obtain counsel of his own choice in violation of applicable statutes and regulations and in violation of his guarantee of a fair trial under the Due Process Clause of the Fifth Amendment. As the legal representation issue is of primary concern to us, we will set out the facts in some detail.

FACTUAL BACKGROUND

Petitioner was arrested at San Ysidro, near San Diego, California, on Saturday, January 22, 1983. At about 5:00 p.m. that day he was served with an order to show cause, charging him with being a citizen of El Salvador who had entered this country without inspection on January 22, 1983, and directing him to appear at "Krome N. Florida, Miami Florida," without date or time specified, to show cause why he should not be deported. On the back of the order to show cause were several notices to petitioner informing him of his right to be represented by counsel of his own choice, of the necessity to have his documents and witnesses present at the hearing, and of bail having been set at $4,000. He indicated that he wished to have bail redetermined. He also signed his name to a statement saying, "To expedite determination of my case, I request an immediate hearing and waive any right I may have to more extended notice." There is an indication at the bottom of the form that the "above advisement" had been read to petitioner in Spanish and "Form I-618" and the "Legal Services notice" had been served. Neither document is in the record.

The record does not disclose when, or by what means, petitioner was removed from San Ysidro to the Krome Processing Center in Florida, or when he received any notice of the date and time of his deportation hearing. It is clear, however, that he was in custody at all relevant times and that the deportation hearing was begun the following Friday, on January 28, 1983, in effect five working days from the time of his apprehension. The record does not disclose that he was advised at that hearing of his right to counsel of his own choice or of the availability of free legal counsel. It merely contains a statement of the immigration judge that in light of petitioner's statement that he needed time to find a lawyer, the hearing would be continued to 9:00 a.m. on Tuesday, February 1, 1983, in effect one working day thereafter, and he was warned that the hearing would go forward with or without counsel. Petitioner appeared without counsel on February 1, and stated that he had called a friend who had been in contact with a lawyer and a bail bondsman, but that he had heard nothing more. The immigration judge instructed him that the hearing would be continued for an additional 24 hours but again warned that if he appeared the next day without counsel, the hearing would proceed. On the following day petitioner appeared without counsel. There was no inquiry as to his expressed wish to be represented by counsel; the taking of evidence commenced immediately.

In response to questions of the immigration judge and the government attorney, petitioner admitted that he was a citizen of El Salvador and that he had entered the country without inspection on January 22, 1983. He was immediately found to be deportable but, when the immigration judge asked the country to which he wished to be deported, petitioner responded that he did not wish to return to El Salvador and that he wanted to apply for asylum. The government attorney provided the necessary form, instructed him that it had to be on file by February 14, 1983, and that interpreters at the camp were available to help him. The deportation hearing was then adjourned to await the hearing on the application for asylum.

Petitioner filed a timely application for asylum, without the assistance of counsel, on February 10. On February 25 the State Department was asked for its advisory opinion and an undated response contains no reference to the facts of the petitioner's case but concludes, using the words of 8 U.S.C. Sec. 1101(a)(42)(A), that the applicant failed to establish "a well-founded fear of being persecuted in El Salvador on account of race, religion, nationality, membership in a particular social group, or political opinion." The deportation hearing was reconvened at the Krome Processing Center on March 17, 1983, to consider the asylum application. Petitioner is shown as appearing in propria persona and nothing was said of his earlier declaration of his wish to be represented by counsel. The immigration judge proceeded immediately to take evidence on the asylum issue. Petitioner was asked if he had read the State Department advisory. He replied that he had not and it was translated for him. Following questioning of petitioner, the immigration judge ruled from the bench that he was not eligible for asylum. He also instructed petitioner that he had the privilege of voluntary departure if he could establish good moral character for the preceding five years, and if he had sufficient funds to pay his own way. He was asked if he believed he qualified for this. He responded "No." There was no further inquiry on the matter.

Petitioner was advised of his right to appeal. He did so, signing a document that had been furnished him in which he waived oral argument.

It is unclear from the record when an attorney first entered his case, but there is correspondence from a government official to his attorney dated in mid-June 1983. At about the same time petitioner secured his release from custody on bond. The attorney represented petitioner at a hearing before the B.I.A., but the denial of asylum was affirmed and his "other contentions" were found to be without merit, i.e. the B.I.A. held that the two continuances were "reasonable and sufficient" to permit petitioner time to obtain counsel, and that his denial of voluntary departure was knowingly and intelligently made.

What we know of petitioner, on this record, is of course very limited. He was 29 years of age, had a 10th grade education, spoke only Spanish, had been employed in El Salvador as a security guard, exterminator, or produce packer, and when apprehended at San Ysidro was en route to Los Angeles where his minor son resided with the son's mother. He had no other friends or relatives in this country.

RIGHT TO COUNSEL

An alien is entitled to due process under the Fifth Amendment in his deportation hearing. United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.1978). Although a deportation hearing is not a criminal matter and he had no Sixth Amendment right to appointment of counsel at government expense, United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir.1975), due process mandates that he is entitled to counsel of his own choice at his own expense under terms of the Immigration and Nationality Act. Section 292 of the Act, 8 U.S.C. Sec. 1362 (1982), makes that privilege explicit. Section 242(b) of the Act, 8 U.S.C. Sec. 1252(b), directs the Attorney General to adopt regulations to assure the integrity of the deportation process (e.g. reasonable notice of charges, reasonable opportunity to present and examine evidence, sufficiency of evidence to support deportability, etc.). The Act specifically requires the adoption of regulations to assure the right of counsel of one's choice. 8 U.S.C. Sec. 1252(b)(2).

Regulations in effect at the time of petitioner's deportation hearing (and references herein to Title 8 C.F.C. are to those regulations revised as of January 1, 1983) stated this right to counsel, 8 C.F.R. Sec. 242.10, at no expense to the government, 8 C.F.R. Sec. 242.10(c), and provided that the alien be notified of his right to such counsel and be given a list of available free legal services at three specific times: when he is served with the order to show cause, 8 C.F.R. Sec. 242.1(c), when the warrant is served, 8 C.F.R. Sec. 242.2, and at the deportation hearing, C.F.R. Sec. 242.16(a). Another regulation required at least seven days notice of the date and time of the deportation hearing except when less notice was requested by the alien, or was necessary for purposes of security. 8 C.F.R. Sec. 242.1(b).

Section 242.13 of 8 C.F.R. states that a continuance to permit the petitioner to obtain counsel "shall not be granted more than once unless sufficient cause for the granting of more time is shown."

Applications for asylum, 8 U.S.C. Sec. 1158(a), and for mandatory withholding of deportation, 8 U.S.C. Sec. 1253(h), are considered and decided within the deportation hearing when filed after that hearing has begun. 8 C.F.R. Secs. 208.3(b) and 208.10. Statutory and regulatory provisions applicable to deportation hearings are thus...