Trench v. I.N.S.
| Decision Date | 14 February 1986 |
| Docket Number | No. 85-1466,85-1466 |
| Citation | 783 F.2d 181 |
| Parties | Steve Anthony TRENCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Laurie Brooke Seidenberg, of Seidenberg & Galvan, Laramie, Wyo., for petitioner.
Alison R. Drucker, Atty. (Richard K. Willard, Acting Asst. Atty. Gen., and Richard M. Evans, Asst. Director, with her on brief), Civil Div., Dept. of Justice, Washington, D.C., for respondent.
Before McKAY and SEYMOUR, Circuit Judges. *
An immigration judge found Steve Anthony Trench deportable under section 241(a)(4) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1251(a)(4), 1 because petitioner had been convicted of three crimes involving moral turpitude. Although the immigration judge gave petitioner several opportunities to secure counsel, petitioner, an indigent, was unable to do so and therefore represented himself at the deportation hearings and before the Board of Immigration Appeals, which dismissed his appeal. Petitioner secured counsel for his appeal to this court.
Petitioner raises two issues: First, whether the lack of counsel at his deportation hearings amounted to a deprivation of petitioner's fundamental right to due process; second, whether petitioner was denied his sixth amendment right to effective assistance of counsel because his attorneys at the underlying criminal proceedings failed to advise him of the possibility of deportation as a result of his guilty pleas to criminal offenses.
In a deportation hearing, due process requires that the alien be afforded a full and fair hearing. Wong Yang Sung v. McGraph, 339 U.S. 33, 49-51, 70 S.Ct. 445, 454-55, 94 L.Ed. 616 (1950). Section 242(b) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1252(b)(2) (1982), provides that in such a hearing, "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." However, there is no right to appointed counsel in deportation proceedings, and "the fact that an alien is without counsel is not considered a denial of due process, if he does not show that he was prejudiced thereby." Burquez v. INS, 513 F.2d 751, 754 (10th Cir.1975). Thus, our inquiry is simply whether petitioner was prejudiced at the deportation hearings because he did not have counsel.
Petitioner contends he was prejudiced by the lack of counsel for the following reasons. First, an attorney could have applied for a withdrawal of petitioner's guilty pleas to the underlying criminal convictions and for judicial recommendations against deportation. Such action, however, would not be related to the administrative deportation hearing per se, but rather would be an attempt to secure collateral relief from the judicially-imposed convictions. As demonstrated hereafter, petitioner cannot collaterally attack the legitimacy of his state criminal convictions in the deportation proceedings. Thus, it is irrelevant for our purposes that an attorney might successfully have applied for the withdrawal of the guilty pleas or the judicial recommendations against deportation.
Second, petitioner contends that a lawyer could have prevented petitioner's "rap sheet" from being admitted into evidence. He maintains that had this evidence not been admitted, the government might not have sustained its burden of proving the requisite convictions. This argument fails to recognize that the immigration judge had before him other evidence, such as conviction records, sufficient to establish that petitioner had been convicted of three crimes involving moral turpitude. Moreover, petitioner did not contest the truthfulness of the evidence admitted; in fact he admitted committing the offenses listed on his rap sheet. For these reasons we conclude that the admission into evidence of petitioner's rap sheet was not prejudicial.
Third, petitioner claims that an attorney could have presented evidence establishing that petitioner's two Colorado convictions arose out of the same criminal scheme; thus, petitioner argues, the government would have failed to establish the statutory requirement that an alien be convicted of two crimes "not arising out of a single scheme of criminal misconduct...." 8 U.S.C. Sec. 1251(a)(4) (Supp.1985). But this argument fails to recognize that even if the two Colorado convictions arose out of the same criminal scheme, the government also established that petitioner had been convicted of a third crime committed in Maryland, thus meeting the statutory requirement for deportation.
Petitioner's final argument is that an attorney could have done a better job in presenting his case to the Board of Immigration Appeals by submitting a legal brief, by providing case law to bolster petitioner's arguments, and by raising issues other than those raised by petitioner. However, in his appeal to this court, petitioner's counsel has submitted a brief raising new legal arguments. Having considered the issues that might have been raised with the assistance of counsel in petitioner's appeal to the Board, we conclude that petitioner's failure to assert those issues on his own was not prejudicial. Because petitioner has failed to demonstrate that he was prejudiced by the lack of counsel during his deportation hearings, we hold that he was not denied due process.
Petitioner contends he was denied his Sixth Amendment right to effective assistance of counsel in the predicate state criminal proceedings because his attorneys failed to advise him of the possibility of deportation as a result of his guilty pleas to criminal offenses.
The courts are divided on the question whether the failure to inform an alien of the immigration consequences of his guilty plea constitutes ineffective assistance of counsel. Compare Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223, 224-25 (1982) (ineffective assistance found), and Edwards v. State, 393 So.2d 597, 599 (Fla.Dist.Ct.App.) (ineffective assistance found under state constitution), petition denied, 402 So.2d 613 (1981), with United States v. Santelises, 509 F.2d 703, 704 (2d Cir.1975) (per...
To continue reading
Request your trial
-
In re Carachuri-Rosendo
...v. United States, 396 F.3d 1322, 1330 (11th Cir. 2005) (citing Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981)); see also Trench v. INS, 783 F.2d 181 (10th Cir. 1986). 20. And would not be, under the respondent's submission, even if such a hypothetical defendant had incurred numerous huge qua......
-
U.S. v. Bodre, 91-1134
...which are part of the criminal sentencing process, and not grounds for deportation. The Tenth Circuit, 9 in Trench v. Immigration and Naturalization Service, 783 F.2d 181 (10th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986), held that the appellant who challenged th......
-
Lewis v. Glickman
...in the denial of a continuance.) "The harmless error rule applies to judicial review of administrative proceedings. Trench v. INS, 783 F.2d 181, 183 (10th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986)." All Indian Pueblo Council v. United States, 975 F.2d 1437, 144......
-
United States v. Madrid-Quezada
...Amendment right to counsel in such proceedings. See Michelson v. I.N.S. , 897 F.2d 465, 467 (10th Cir. 1990) ; see also Trench v. I.N.S. , 783 F.2d 181, 183 (10th Cir.), cert. denied , 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986).III. Statements While in Custodya. Generally Under Mira......
-
An immigration Gideon for lawful permanent residents.
...INA § 292). (36.) Id. (emphasis added). (37.) 8 C.F.R. § 1240.10(a)(1) (2012). (38.) Id. § 1240.10(a)(2). (39.) See, e.g., Trench v. INS, 783 F.2d 181, 183 (10th Cir. 1986); Barthold v. INS, 517 F.2d 689, 690-91 (5th Cir. (40.) See, e.g., Aguilera-Enriquez v. INS, 516 F.2d 565, 568-69 (6th ......