Waldron v. I.N.S.

• Decision Date: 22 February 1994
• Docket Number: D,No. 604,604
• Citation: 17 F.3d 511
• Parties: Trevor A. WALDRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 92-4021.
• Court: U.S. Court of Appeals — Second Circuit

Page 511

17 F.3d 511

Trevor A. WALDRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 604, Docket 92-4021.

United States Court of Appeals Second Circuit.

Argued Nov. 24, 1992.

Decided May 19, 1993.

Amended Opinion Feb. 22, 1994.

Joshua D. Rievman, Esq., New York, N.Y. (Douglas F. Broder, Coudert Brothers, New York, N.Y., of counsel), for Petitioner.

Diogenes P. Kekatos, Assistant United States Attorney, New York, N.Y. (Otto G. Obermaier, United States Attorney for the Southern District of New York, Gabriel W. Gorenstein, Assistant United States Attorney, James A. O'Brien, III, Special Assistant United States Attorney, New York, N.Y., of counsel), for Respondent.

Before: PIERCE, MINER and WALKER, Circuit Judges.

PIERCE, Circuit Judge:

Petitioner sought to have this Court review a decision of the Board of Immigration Appeals (the "BIA" or the "Board"), which upheld a decision of an immigration judge ("IJ"), which, in turn, found petitioner deportable because of two drug convictions and also denied his applications for suspension of deportation and registry. In an opinion, reported at 994 F.2d 71 (2d Cir.1993), we granted the petition for review, reversed the decision of the BIA and remanded the matter

to the Immigration and Naturalization Service (the "INS") for further proceedings. Post-filing submissions have caused us to reexamine the decision in this case. For the reasons set forth below, the earlier opinion is withdrawn and it is the decision of the panel that the action of the Board is upheld.

BACKGROUND

In April 1970, Waldron, a native of Trinidad and a citizen of Trinidad and Tobago, entered the United States at Charlotte Amalie, in the United States Virgin Islands. It is unclear whether he entered with inspection. In April 1985, while Waldron was serving a prison sentence at the Fishkill Correctional Facility, the INS served him with an Order to Show Cause and Notice of Hearing, alleging that he had entered the United States without inspection, and charging him as deportable from the United States under Sec. 241(a)(2) of the Immigration and Nationality Act of 1952 (the "Act"), 8 U.S.C. Sec. 1251(a)(2) (1988). The INS subsequently lodged a Notice of Additional Charges of Deportability under Sec. 241(a)(11) of the Act, 8 U.S.C. Sec. 1251(a)(11) (1988), alleging that Waldron had been convicted twice of possession of marijuana. ¹

Waldron's first deportation hearing was held on July 19, 1988, ² before an IJ. Waldron appeared pro se, although he was reminded at the start of the proceedings by the IJ of his right to be represented by counsel. Waldron testified that he was currently incarcerated for a weapons possession conviction. He offered various reasons why he should not be deported and asked the IJ to allow him to remain in the United States because he had family in this country. Counsel for the INS then read into the record Waldron's criminal record. In an oral decision, the IJ determined that Waldron was deportable. The IJ also determined that, due to Waldron's criminal convictions, he was ineligible for any relief under the Act, specifically, suspension of deportation and registry, because he was unable to demonstrate "good moral character," as required by Sec. 244 ³ and Sec. 249, ⁴ respectively.

Waldron, proceeding pro se, appealed from the IJ's decision to the BIA, arguing that he had not been afforded a fair hearing. On October 16, 1990, the BIA issued its decision stating that, since it was unable to determine from the record when the additional written factual allegations had been served on Waldron and whether he was advised, at that time, of his right to counsel, it could not ascertain if Waldron had made a knowing and intelligent waiver of his right to counsel and whether he should have been afforded additional time to meet the newly lodged factual allegations and charges. The BIA also noted that Waldron had not been given a proper opportunity to designate a country of deportation. Accordingly, further proceedings were ordered. In addition, the BIA directed that, in the event the decision on remand was adverse to Waldron, an appropriate order should be entered and the record certified to the BIA for review.

A second deportation hearing was held on January 31, 1991 at the Downstate Correctional Facility in Fishkill, New York, where Waldron was incarcerated. Once again, Waldron appeared pro se. He was served anew with the INS's Order to Show Cause and Notice of Additional Charges of Deportability, which lodged additional grounds of deportability against Waldron based upon his two marijuana convictions. Since Waldron indicated his desire to be represented by counsel, the hearing was adjourned to allow him the opportunity to obtain an attorney. The hearing resumed on March 14, 1991, but was again adjourned because Waldron had been unable to secure counsel.

Eventually, Waldron obtained legal representation and, on July 11, 1991, the hearing resumed. The INS did not pursue the charge that Waldron entered the country without inspection. Instead, the INS relied on Waldron's two marijuana convictions as the basis for deporting him. Waldron contested those convictions, at one point claiming that he could not recall whether he had been convicted, and at another point stating that he refused to "concede" the charges. The IJ, relying upon two court convictions in conjunction with Waldron's "rap sheet," determined that Waldron's deportability had been established under Sec. 241(a)(11) of the Act. Waldron designated the United Kingdom as the country of deportation. Waldron then applied for a suspension of deportation, pursuant to Sec. 244, registry, pursuant to Sec. 249, and an adjustment of status, pursuant to Sec. 245. ⁵ However, because Waldron had been incarcerated continuously since April 1987 for criminal possession of a weapon, the IJ determined that Waldron was ineligible for registry and suspension of deportation relief because he was unable to demonstrate ten years of "good moral character." Moreover, according to the IJ, Waldron was ineligible to receive an adjustment in status because of his two marijuana convictions. Accordingly, Waldron was ordered deported from the United States.

Waldron, proceeding pro se, again appealed the IJ's decision to the BIA, this time alleging, inter alia, that the INS and the IJ abused their discretion by not notifying him of his right to contact diplomatic officials of his native Trinidad and by failing to certify his case to the BIA as directed by the BIA in its October 16, 1990 decision. On January 14, 1992, the BIA issued its decision dismissing the appeal. The BIA rejected all the grounds asserted by Waldron. With respect to the alleged failure of the INS and the IJ to notify Waldron of his right to contact consular authorities, the BIA concluded that since Waldron had failed to demonstrate that the preparation of his defense to the deportation charges had been prejudiced, he was not entitled to any relief. The Board further Waldron now petitions this Court to review the BIA's decision.

noted, in a footnote, that the failure to certify the case to it, as ordered by its October 16, 1990 decision, was harmless error. Finally, the BIA agreed with the IJ's conclusion that Waldron was not entitled to any relief under the Act because his continuous incarceration rendered him unable to demonstrate the requisite "good moral character." ⁶

DISCUSSION

On appeal, Waldron contends that a reversal of the BIA's decision is mandated under this Court's decision in Montilla v. INS, 926 F.2d 162 (2d Cir.1991), because the INS failed to follow its own regulations. The INS contends that a new hearing is not warranted because neither of the INS regulations in question, namely, 8 C.F.R. Sec. 242.2(g), entitled "Privilege of communication," and 8 C.F.R. Sec. 3.7, entitled "Notice of certification," apply to Waldron. ⁷ In the alternative, the INS argues that Montilla is easily distinguishable from the facts herein, and that, based upon its interpretation of its holding, Montilla should be limited in its reach.

I. Application of Regulations to Waldron

Section 242.2(g) provides in pertinent part:

Every detained alien shall be notified that he may communicate with the consular or diplomatic officers of the country of his nationality in the United States. Existing treaties require immediate communication with appropriate consular or diplomatic officers whenever nationals of the following countries are detained in exclusion or expulsion proceedings, whether or not requested by the alien, and, in fact, even if the alien requests that no communication be undertaken in his behalf[.] ⁸

The INS contends that Sec. 242.2(g) cannot be interpreted as affording aliens, detained by authorities other than the INS, the right to notification of the privilege to contact diplomatic consular officials. Since Waldron was serving a criminal sentence in the custody of New York State at the time of his deportation proceedings, he was not, according to the INS, in the INS's apprehension, custody or detention and therefore the INS was not obligated to notify Waldron of his right to contact consular or diplomatic authorities of his native Trinidad and Tobago. In support of this position, the INS relies on two cases, Severino v. Thornburgh, 778 F.Supp. 5 (S.D.N.Y.1991) and Fernandez-Collado v. INS, 644 F.Supp. 741 (D.Conn.1986), aff'd without opinion, 857 F.2d 1461 (2d Cir.1987).

However, the INS's reliance on these cases is misplaced. In both Severino and Fernandez-Collado, the petitioners were incarcerated prisoners against whom detainers had been lodged by the INS, indicating that their convictions might subject them to deportation. Both petitioners sought writs of habeas corpus under 28 U.S.C. Sec. 2241 to have the INS detainers removed. See Severino, 778 F.Supp. at 6; Fernandez-Collado, 644 F.Supp. at 742. Both courts found that the mere lodging of a detainer...