Mаria Socorro DELGADO-COREA and Aminta Espino-Delgado, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 85-1582.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 3, 1985. Decided Oct. 20, 1986.
804 F.2d 261
Having determined that Buckner‘s claim arises under the Medicare Act and that she has not exhausted her administrative remedies, we conclude that the district court properly dismissed her declaratory judgment action against the Secretary.
AFFIRMED.
Barbara K. Strack (Richard G. Parker, O‘Melveny & Myers, on brief), for petitioners.
Joan E. Smiley, Office of Immigration Litigation, Civ. Div., Dept. of Justice (Richard K. Willard, Acting Asst. Atty. Gen., Dawn MacPhee, Assistant Director, Millicent Y. Clark, on brief), for respondent.
Before WIDENER and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
WIDENER, Circuit Judge:
Maria Socorro Delgado-Corea and her daughter, Aminta Esрino-Delgado, seek review of an order of the Board of Immigration Appeals dismissing their appeal from the decision of an immigration judge finding them deportable and ordering that they be deported back to Nicaragua. Mrs. Delgado and her daughter claim that the Immigration аnd Naturalization Service (INS) violated its own regulations by not providing them with a list of free legal services available for the place where the deportation hearing was to be held. The INS concedes that the regulation in question was violated when Mrs. Delgado and her daughter were provided lists of attorneys available in Tucson, Phoenix, and San Diego rather than a list for Los Angeles where their hearing was conducted. The INS argues, however, that Mrs. Delgado and her daughter have shown no prejudice result-
Mrs. Delgado and her daughter are natives and citizens of Nicaragua. They entered the United States in November 1983 without inspection by border officials in violation of
A joint deportation hearing was held in Los Angeles on November 29, 1983. Mrs. Delgado and her daughter appeared pro se. The immigration judge questioned the two about proceeding without counsel. The following is that colloquy:
Q. The purpose of this hearing is to determine whether or not you should be deported from the United States. Do you both understand?
A. Yes (by both).
Q. At this hearing you have the right to be represented by an attorney or some other person authorized to appear before the Service. Have either of you retained anyone to represent you at this hearing?
A. We will go on.
Q. You mean you want to go ahead without an attorney. Is that what you‘re saying?
A. Yes.
JUDGE:
Ms. Jambor, were these people given lists of legal services?
MS. JAMBOR:
They were both given lists, your Honor.
JUDGE:
Both given lists; all right. Oh, I notice on the backs of the Orders to Show Cause they were given lists, too.
At the hearing, both Mrs. Delgado and her daughter admitted deportability and chose Nicaragua as their country of deportation. Following the hearing, the immigration judge issued his order of deportation for the two.
Following that hearing, Mrs. Delgado and her daughter obtained legal representatiоn. They appealed the deportation order to the Board of Immigration Appeals, claiming error in the INS’ failure to provide them with a list of legal services available in Los Angeles. They claimed that they were denied their right to seek political asylum because they did not have an attorney at their hearing.
The Board of Immigration Appeals affirmed the action of the immigration judge after concluding that Mrs. Delgado and her daughter had shown no prejudice from failure to receive the correct list of legal services since they waivеd their right to counsel.
An alien has the privilege of legal representation at a deportation hearing at no expense to the government.1
Both sides agree that INS violated
Appellants’ reliance upon these cases for the proposition that prejudice need not be shown is misplaced. In Calderon-Medina, the aliens claimed that deportation orders against them should be set aside because the INS violated a regulation that required the alien to be notified that he may communicate with the diplomatic officer of the country of his nationality. The district court hаd agreed. It concluded that the deportation orders were invalid because the INS violated its own regulations and that the alien need not show prejudice in such a case.
The Ninth Circuit reversed. That court found that violation of a regulation can serve to invalidate а deportation order when the regulation serves a purpose to benefit the alien. Such a violation, however, will invalidate the deportation order “only if the violation prejudiced interests of the alien which were protected by the regulation.” Calderon-Medina, supra at 531.
The Board of Immigration Appeals relied upon Calderon-Medina when it decided In re Garcia-Flores. In that case, thе alien challenged the introduction of an incriminating statement at her deportation hearing on the ground that the immigration officer who took the statement had not advised her of her right to an attorney during questioning, in violation of
It is important to note that the Boаrd refused to presume prejudice from the violation of the regulation in Garcia-Flores. While that case would allow such a presumption of prejudice in certain cases, it does not require it. The Board in the instant case correctly concluded that as a general rule prejudice must be shown by the alien. The Board affirmed the deportation order specifically because Mrs. Delgado and her daughter were unable to show prejudice. We find no error in the reasoning or conclusion of the Board regarding the prejudice requirement.
Mrs. Delgado аnd her daughter argue that even if prejudice is required, they successfully proved it. We disagree for two reasons. First, no prejudice is shown because the Delgados waived their right to have counsel present. While the immigration judge was misadvised during his questioning that the Delgados had been supрlied the proper list of attorneys, the record reveals no facts from which we could conclude that the Delgados did not understand the judge‘s questions nor did not voluntarily choose not to have counsel present. An alien can choose to waive counsel and such a waiver will be upheld if voluntarily given. Barthold v. U.S. Immigration and Nat. Serv., 517 F.2d 689 (5th Cir.1975). We therefore find that the Board correctly found that no prejudice was present because Mrs. Delgado and her daughter waived having counsel present at the hearing.
Additionally, we reject the Delgados’ claim that they were prejudicеd by want of an attorney in that they were deprived of their right to petition for asylum. However, they have not presented sufficient grounds upon which asylum could be granted. The Delgados seek asylum based upon the conscription of two of Mrs. Delgado‘s children into the Nicaraguan military. She desires to protect her daughter from also being drafted to work in a camp harvesting the coffee and cotton crops and possibly being forced into military service. The Delgados presented a New York Times article to support their belief that the Nicara-
The petition for review is accordingly DENIED.
BUTZNER, Senior Circuit Judge, dissenting:
The decisive fact in this appeal is that Mrs. Delgado and her 15-year-old daughter were not given information about free legal assistance available to them in Los Angeles, the site of their deportation hearing, as required by law.
The Board of Immigration Appeals recognized that the violated regulation “is an integral part of a procеdural framework designed to insure a fair deportation hearing....” Nevertheless, it held that the Delgados were not prejudiced because they waived their right to counsel at the deportation hearing.
In order to be valid, the Delgados’ waiver must have been “an intentional relinquishmеnt or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The sound principle of Johnson v. Zerbst is expressly made applicable to immigration proceedings. “[M]eticulous care must be exercised to insure that a waiver of this right is competently and understandingly made.” Matter of Guttierez, 16 I & N Dec. 226 at 228 (BIA 1977). The purpose of the regulation in question is to assure that аny waiver of counsel is made knowingly and intelligently. The Delgados’ acquiescence in proceeding without counsel at their deportation hearing was not an intelligent relinquishment of a known right because they were not advised that they, as indigents, had access to free legal advice in the city where their hearing was conducted.
The immigration judge made no finding that the Delgados knew free legal advice was available to them in Los Angeles. He merely relied on the government attorney‘s mistaken assurance that they had been furnished the necessary information. The Board, of course, conducted no hearing to determine the extent and nature of the Delgados’ knowledge about the availability of free legal advice. It ruled on the basis of abstract principles without any factual foundation. Its ultimate conclusion was stated as follows: “The failure to receive the correct list of free legal services is without significance given the waiver of counsel.”3 The flaw in this reasoning is the lack of proof that the waiver was competently and understandingly made with knowledge of the existence of free legal services in Los Angeles.
It is inappropriate for this court to evaluate a potential claim for asylum which for lack of counsel was not presented at a deportation hearing.4 Our review of thе Board‘s decisions is limited to the administrative record on which the deportation order is based.
I respectfully dissent.