Miguel Tejeda-Mata v. Immigration and Naturalization Service
626 F.2d 721
9th Cir.
1980
Check Treatment

*2 FERGUSON, Circuit and Before CHOY BARTELS,* Judges; Judge. District and BARTELS, Judge: District Petitioner appeals Miguel Tejeda-Mata Ap- Board of order of the dismissing peals dated November Judge’s his appeal from an under section finding deportability Nationali- Immigration and 241(a)(2) of the Act, granting and ty 1251(a)(2), 8 U.S.C. § principal him voluntary departure.1 Bartels, Any . (a) . . alitn in the United *The Honorable United States R. John General, shall, Attorney Judge upon District York, New the order for the Eastern District of deported sitting by who— designation. 1. Section States Code 1251(a)(2) provides: Title 8 of designated spection (2) entered [******] or at the United States time Attorney or place General other without than in- (1) whether presented issues are the Immi- At his hearing held on Febru- finding sufficiency as to gration Judge’s ary 7, 1978,petitioner, through counsel, supported by evidence was reasona- denied each the allegations contained in substantial, evidence, ble, probative the order to cause, show and he refused to pe- the administrative authorities denied admit deportability. Through reaching titioner due of law language interpreter, petitioner testified re- *3 deportability. ultimate of We conclusion garding the surrounding events his arrest affirm. on February he but refused to any questions answer concerning his citizen- Background I. ship entry into the States on United the Petitioner is a native of Mexico and ground might that the tend to answers in- charged entered the having United criminate him. Upon by the questioning Ysidro, States near California without San INS attorney, petitioner trial ad- inspection in While driv- November telling mitted Spence prior Officer to his Connell, ing through parking a store lot in arrest that he came from Mexico. Petition- Washington February on Immi- er’s requested counsel the testimony of gration Spence Jimmy Officer Spence, Officer the only witness offered by an alien whom previously he had arrested government, for translated his client who granted depar- and had been voluntary Spanish by into interpreter. the official ture from the approximately United States When request by was denied the Immi- parking three weeks earlier. After his ve- gration Judge, petitioner’s counsel offered hicle so that it blocked the exit of the to translate the himself so testimony vehicle, approached alien’s be- Spence and petitioner would have benefit of simul- gan open on of the door the driver’s side taneous translation of testimony petitioner the alien’s ran Suddenly, car. against This request him. was also denied. car, Spanish toward in what was asked During the course of Spence’s testimony, happening, English heavy and with a said Form 1-213 INS was admitted into accent, my in- Spanish Spence “It’s car.” petitioner’s over evidence objection. formed him that was an he At hearing, conclusion of the Im- officer and who was. petitioner asked he migration Judge petitioner found that petitioner When appeared not to under- Spence stand, voluntarily had before Spence told Officer he asked in where Mexico; (2) arrest he be- was from from, responded petitioner and admission, petitioner cause of this had the came from Mexico. time, proving burden of and manner place, vehicle, persons in placing After both his of which bur- entry into the United whether had Spence Officer asked either (3) petitioner’s den carry; he failed to and family or possessions United States. clear, deportability had been established changed “no,” petitioner Both answered evidence. He convincing, unequivocal and his mind to the affirmative fifteen minutes granted of volun- petitioner privilege Othello, Washington. jail en route to the tary departure. petitioner subsequently When refused to Immigration Appeals dis- sign request voluntary departure for Board form, four-page in a Spence petitioner’s an order to show missed appeal obtained decision, concluding and and prepared cause an arrest warrant Alien, Judge’s Record of I- of Form Deportable INS Form into evidence admission the document proper 213.2 1-213 was because 2. Information included or in United States in violation of [*] contained [*] any # name, violation of this other law of on the [*] local INS Form [*] address, the United chapter [*] per- manent address ments by and the circumstances of and addresses of his INS Officer made thereafter. The citizenship (“Mexico”); Spence. (“Caguallana, wife, his child, form was arrest and Mich., Mexico”), and the names parents; signed state- regu- petitioner the time made the trustworthy prepared statement no business; had failed petitioner made, lar course of arrest had been no curtailment time, place, proving liberty imposed, to meet his burden had been into the entry and manner threat to do so had been made Officer States; was authorized to Spence Spence. willingly ad petitioner Because a warrant question petitioner without mitted alienage under such circumstanc pro- failed to his arrest because es, he cannot now his statement claim that did not duce evidence that product was the illegal search or suspicion that a reasonable seizure. Cordon de Ruano v. alien; regulations and since the illegal deporta- that the requirement contained no Migrant Illinois Council Spanish, proceedings tion be recorded Pilliod, process by petitioner was not denied in part rehearing modified en require failure to Immigration Judge’s banc, 548 F.2d 715 More such transcription. *4 over, 287(a)(1) Immigration section Act, and appeal

This followed. Naturalization 8 U.S.C. 1357(a)(1), any authorizes INS officer to § Sufficiency II. Evidence interrogate any person without a warrant challenges sufficiency Petitioner right to his believed to be an alien as First, grounds. of the evidence on several 1070; or remain in the Id. at United States. inadmissi he asserts that Form 1-213 was Ojeda-Vinales and Naturali Immigration v. hearsay ble because of its character and 286, Service, (2d zation 523 F.2d 287 Cir. authenticated. properly because it was not 1975); Cheung Wong Immigration Tin v. considered and re Similar contentions were Service, 1123, 468 F.2d jected by this court in Trias-Hernandez v. (D.C.Cir.1972); Immigra 1128 Au Yi Lau v. Service, Immigration and Naturalization Service, tion and 445 F.2d Naturalization 366, (9th 528 F.2d 369 Cir. where we 217, denied, (D.C.Cir.), 223 cert. 404 U.S. upheld of Form 1-213 admissibility 864, (1971). 64, 92 108 In 30 L.Ed.2d upon probative our was finding that this case, of Officer the reasonableness entry on the issue of into the petitioner’s Spence’s supported by a number of belief is (2) fundamentally United fair. and petitioner example, circumstances. For case, In this the information on contained alien, spoke was with illegal with a known name, address, g., the form —e. country of accent, and had trouble distinct arrest, of citizenship, etc.— circumstances addition, ap he understanding English. was there is no probative, and undoubtedly proached interrupt sought Spence and to basis in the to conclude that record speak he was car door to trying open to anyone information obtained from oth was alien, ap with he illegal the known and er petitioner any way than or that it was in peared Spence he heard shocked when product of coercion or duress. More an officer. the basis of these cir INS On over, authenticity of the document was cumstances, Spence’s we believe Officer testimony established of sufficiently questioning petitioner brief of concerning Officer who identified it as the Spence, his origin clearly name and of 1-213 prepared by shortly form him after justified, conclude, therefore, and we Othello, arriving Washington jail at the alienage prop statement of 19, February 1977. erly Judge.3 Immigration admitted Second, petitioner contends that his admission to overturn came seeks to Finally, from Mexico basis of suppressed finding deportability should have been on the because it was the contrary, coerced. On at allegedly illegal arrest. Section 3. Immigration Petitioner’s Naturalization contention that Miranda warn Hernandez v. and ings required Service, 366, (9th at the time of his arrest has 528 F.2d previously rejected by been in Trias- this court

725 287(a)(2) Service, 8 authorizes an 370; Title U.S.C. INS 528 F.2d at 8 U.S.C. By “any officer to arrest without warrant his refusal to testify either or offer States, if he has evidence with respect questions, reason to those alien United burden, carry failed to his so arrested is in believe that the alien the Immigration Judge properly draw could in violation such law adverse inferences from silence. likely escape regulation and is before Cuevas-Ortega v. Immigration and Natural a warrant can be obtained for his arrest Service, ization 588 1274 at 1278 F.2d phrase “has reason be Hoonsilapa lieve” has been equated the constitu 737; Service, Naturalization 575 F.2d at requirement probable tional cause. Chavez-Raya and Naturali Cantu, United States v. 496 Service, zation Cir.), denied, 423 U.S. cert. 1975). Thus, we to overturn decline (1975); Au Yi Lau L.Ed.2d 409 findings respect below with to the sufficien v. Immigration and Naturalization cy of the evidence. 445 F.2d at 222. the circum In this justification stances listed supra III. Due Process Spence’s petitioner, togeth interrogation of Petitioner next asserts INS er with admission that he his uncoerced failed to of its own comply regula- with one Mexico,” clearly “came from constitute a tions, 242.2(e), requiring C.F.R. that the sufficient basis for warrantless arrest. his agency inform an alien of or her whole, as a Considering the record diplomatic communicate with consular or we findings conclude of the Immi that the officials country.4 of his or her own *5 gration Judge by reasona supported were government apparently concedes its own ble, substantial, probative evidence. noncompliance, argues Woodby Immigration v. and Naturalization way prejudiced in no thereby Service, 282, 483, 486, 276, 385 87 U.S. part hence that error its was harm- (1966); 17 L.Ed.2d 362 Garcia-Jaramillo v. less. Immigration Service, and Naturalization Calderon-Medina, 591 In United States v. 1236, 604 (9th 1979); F.2d 1238 Cir. Lavoie 529, (9th F.2d 531 court held Cir. Service, v. Immigration and Naturalization regulation renders a of a “[violation 732, (9th 1969); 418 F.2d 735 Cordon de Cir. deportation only if the violation unlawful Ruano v. Immigration and Naturalization the alien prejudiced the interests Service, 944, 1977); (9th 554 F.2d 947 Cir. protected regulation.” In con- by Immigration Trias-Hernandez v. and Natu sidering precisely the same a violation of 370; Service, ralization F.2d at 8 528 U.S.C. regulation been violated in claimed to have 1105a(a)(4). alienage Once we stated as follows: was established —as his admission it was cases made district courts in these proof burden of to these aliens finding of harm specific —the prove time, shifted him to place, and resulting of notice of their from lack manner of entry. Hoonsilapa Immigra v. with the Mexican communicate tion and Service, appellees Naturalization 575 F.2d Consul. Nor did evi- identify 735, 737 Cir.), on other dence of modified such harm in the record. There- grounds, fore, 586 dismissing we (1978); Trias-Her reverse 755 the orders nandez v. indictments. Immigration and Naturalization appropriate 242.2(e) Section immediate communication of Title 8 of Code Regulations pertinent part, diplomatic provides, Federal consular officers whenever na- (sic) as follows: tionals are detained in exclusion of ex- pulsion proceedings, request- whether or not (e) Privilege Every of communication. de- alien, and, fact, ed even if the alien may tained alien shall be notified that requests that no communication be under- diplomatic communicate with the consular or * * * * taken in his behalf: Mexico *. nationality officers of the of his Existing require the United treaties States.

726 aliens should be allowed timony against

On remand the offered him. Although we prejudice opportunity to demonstrate do not language believe that dual transcrip regulation resulting from the INS viola- tion of the required, record was inexpli will tions. The district courts determine cable refusal of Immigration Judge to 242.2(e) whether of 8 C.F.R. permit violations simultaneous translation the tes way harmed the aliens’ interests such a timony against petitioner by either the offi potentially as to affect outcome of cial interpreter or petitioner’s counsel seems proceedings. their deportation unquestionably to be an abuse his discre true, tion. It is government points as the Id. at 532. out, proceedings have been Although might we be inclined to deemed nature, civil in rather than crimi remand this case purpose for the stated in nal, and hence that all the due Calderon-Medina, princi it is an established protections accorded to a in a defendant ple that this court does sit as an admin criminal proceeding apply do not in this istrative agency purpose for the of fact- context. Abel v. United 362 U.S. instance, finding in the first peti and if a 217, 237, 683, 696, 80 S.Ct. 4 L.Ed.2d 668 tioner preserve ap wishes to an issue for (1960); Immigration Whetstone v. and Nat peal, he must proper first raise it in the Service, 1303, 1306 (9th uralization 561 F.2d administrative Der-Rong forum. Chour v. 1977). Cir. established, equally It is well Service, Immigration and Naturalization charged that when an alien is 464, (2d 1978); 578 F.2d 468 Cir. Cisternas- with having entered United States ille Estay v. and Naturalization gally, he or she is entitled to full and fair Service, 155, (3d 1976); 531 F.2d 160 Cir. hearing prior deportation, Wong Yang Leung Sung McGrath, 33, 49-51, 339 U.S. Service, (3d 531 F.2d (1950); 94 L.Ed. 616 Garcia- Sheng Holton, Chi Liu v. 297 F.2d Jaramillo v. Immigration and Naturaliza 1961); Chung Young Chew v. tion and this F.2d at Boyd, court and repeatedly others have nothing There is in the record of this case suggesting petitioner, who has at all fairness of such a if counsel, represented by times been raised the alien speak English fluently. cannot the question noncompliance by the INS *6 See Niarchos Immigration v. and Naturali with its consular regulation communication Service, zation (7th 511 393 F.2d Cir. before either the Immigration Judge or the 1968); Immigration Ramirez and Natu v. Immigration Board of Appeals. Petition Service, ralization F.2d 565 n. 5 550 er’s failure to raise this issue sig below is (9th Cir. Orozco-Rangel Immigra v. nificant because the factual record neces Service, tion and Naturalization 528 F.2d sary proper by review this only court can 224 1976); Leung Immigration be by Judge. made There 168; 531 F.2d at fore, in justifying the absence of reason any Haidar v. Coomey, F.Supp. 720 petitioner’s decision to raise for the first Where, (D.Mass.1974). here, as the official time in alleged this court issue interpreter present hearing at the in failure of comply INS to with C.F.R. order to petitioner’s translate own testimo 242.2(e), we conclude that his failure to ny offered to assist counsel exhaust on this is administrative remedies if necessary, Immigration Judge’s deni precludes sue our consideration of it at this al of the request for simultaneous transla stage of the proceedings. tion of Spence’s testimony was finally Petitioner contends that he plainly improper. was denied process by due the failure of the Immigration Judge require a an abuse discre Faced such tion, language rule, transcription would, of the record and to feel general as a permit compelled of the tes- simultaneous translation and remand this case reverse specific to the jority process 2. The ble under all the tunity of the and held; to cross-examine witnesses Government; .... (1) present majority correctly place the alien shall the alien [******] to examine the evidence charges against evidence in his own at which shall circumstances, of the nature have a reasonable be the given him and proceedings presented *7 notice, that an alien behalf, against of the time reasona- will oppor- and to him, the be 3. In neous translation in this Tejeda-Mata not must An official the courtroom translate mony counsel ture would holding have to decide whether the denied provide for the court. offered to translate for have accrued interpreter that due permission. No further to interpreter In process addition, Tejeda-Mata’s right had the Tejeda-Mata’s testi- at its already present in required judge his client own enjoyed court government expense. expendi- simulta- allowed would him- *8 Attorney re-entry 4. supra. See footnote tion for without the General’s permission. 1182(a)(16). See 8 U.S.C. § 5. deportation The existence of the order earlier significant precluded applica- because it an the in- it addressed issuance,6 but the court affirmed grant the of after its a recog- which it in in dictum terpreter issue petition for a corpus by habeas defendant resulting from a harm per the se nized trial, convicted of murder. At the defend- translation: provide to failure English, ant’s into testimony was translated of an inter- the absence that We think testimony but the was not trans- witnesses’ contrary is to preter at the The court Spanish.7 lated into held that provide fundamen- our law to the aim of the trial lacked the basic and fundamental proceedings. tal fairness in administrative required by process fairness the due clause. discretionary power essential Despite the conclusion, reaching the court deter- that dealing in officials of the only deprived mined Negron that not provision crewman with violations right of his to be by adverse confronted not with- clearly it would seem . . witnesses, effectively deprived but was also to conduct an in the discretion Service’s right to be of the even more fundamental interpreter, inquiry, official without if the present. explained that inquiry the can subject of language a the any meaning, right present to be is to have We there- speak. neither understand nor ability to consult encompass must the express hope the fore in this dictum to re- permission seek regarding should adverse testi- lawyer one’s enter, Attorney . . General . view, mony. Id. at 389. In the court’s light petition will consider these were intolerable: denials of the 1962 shocking circumstances Negron’s specific to incapacity respond to hearing.” deportation inevitably testimony would hamper surrounding Id. at 511. The circumstances conduct effec- capacity of his counsel to shocking. equally the instant case are only for the tive Not cross-examination. also has The Seventh Circuit cross-examination, how- sake of effective deportation to counsel right ever, simple a humane- as matter of funda important “too proceedings is ness, to sit Negron deserved more than by a right a to be circumscribed mental incomprehension total pro- trial as the Castaneda-Delgado v. harmless rule.” error ceeded. I&NS, Negron, de- Tejeda-Mata, like Id. at 390. right Castaneda involved the denial served more. 1252(b). The granted by to counsel as provisions granting court noted that civil am, course, I aware fully integral counsel “are an right aliens the It proceedings. nature of deportation to which part procedural process hear deportation however, undeniable, Id. at 1302. Similar the alien is entitled.” consequences serious ings “fraught with are integral is an ly, right present I&NS, Castaneda-Delgado v. to the alien.” rights granted part of the due Supreme 1301. 525 F.2d at The Castaneda aliens that same statute. Court has noted pro unwilling eviscerate these court was a technically is not [tjhough error stan harmless by applying visions great it visits proceeding, criminal to follow their dard. We would do well deprives hardship on the individual example. stay and live and him of the Circuit, Cir- like the Seventh The Second de- work That freedom. this land of cuit, it would not tolerate has held that a most times portation penalty is a non-English denial of an —at Meticu- doubted. serious one—cannot speaking Negron ex rel. In U.S. defendant. proce- lest exercised lous care must be (2d State New York, effectively re- could these summaries 1105a(c). 6. See 8 U.S.C. § place 389-90. simultaneous translation. Id. at Negron of witnesses’ did receive summaries recognized, testimony. The court *9 addition, In by deprived Spanish. dure which he is form, of that the 1-213 com- pleted liberty not meet the essential in English by standards Officer after Tejeda-Mata’s of fairness. arrest and admitted into evi- dence at deportation hearing, contains Wixon, Bridges U.S. at statements similarly enlarge upon S.Ct. at 1452.8 those by petitioner.9 statements admitted to question There can be no but that Tejeda-Mata might have been point able to immigration judge failed to exercise “me- out these conflicting descriptions of his ad- unwillingness ticulous His care” here. mission to counsel had he been aware of deprived Tejeda-Mata allow translation them, and penalize we cannot properly him participate to understand and in for his counsel’s failure to observe these his deportation hearing. As demonstrated conflicting reports. Negron As the court above, courts this court and other emphasized, inability respond to tes- stressed the timony inevitably hampers ability counsel’s these rights. nothing Their denial can be to conduct an effective cross-examination. per other than se harmful. U.S. ex Negron York, rel. v. State New

supra, 434 F.2d at 390. II. In decision, his oral judge concluded that both the Even if the harmless error standard were birth in a foreign country and his Mexican applicable here, the refusal to allow simul- citizenship had been his own established taneous translation into was not conclusions, admission. In reaching these harmless error. As enunciated the Su- judge clearly Spence’s relied on Officer preme Court, that standard demands that testimony. As a result, to allow the failure “before a federal constitutional error can be Spence’s Officer testimony to be translated harmless, held must be able hardly can as harmless be- characterized beyond declare a belief it was harmless yond majority a reasonable doubt. The errs Chapman reasonable doubt.” v. Califor- in stating that reversal and remand for a nia, supra, 386 at 828. U.S. at new hearing would amount to no more than A close reading of the record convinces me gesture; is, fact, futile a new that the error undoubtedly here was harm- an absolute necessity. ful. I therefore dissent. assertions, Contrary it is majority’s not clear alienage. admitted

He did admit telling Spence that he Officer 33). immigra- “from (R. Mexico.”

tion judge later this testimo- characterized

ny as [Tejeda-Mata] follows: “He testified

that he asked him where Spence] [Officer

he was born he was born in and he said (R.

Mexico.” Spence testified

that Tejeda-Mata arrest stated before

“he (R. 49). was a Mexican citizen.” Nei-

ther nor judge’s characterization

Spence’s testimony was translated into Carmichael, Delgadillo 8. See also 332 U.S. 9. Those comments include an assertion that the 388, 391, (1947): 92 L.Ed. 17 illegal presence admitted to an “[D]eportation equivalent can addition, be the of banish- given States. Mexico is ment or exile.” birth, and a Mexican city petitioner’s permanent is listed as resi- dence. Limited notes hearing. requirement, for a new includ- and points circumstances of this out that “this court and others the untrans- that fact particular, in ing, have repeatedly recognized the confirmed testimony only lated of an fair- interpreter to the fundamental conclude, alienage, we own admission ness of alien cannot hearing such a if the reluctantly, albeit speak majority The im- English fluently.” and that a new harmless Judge’s error was plicitly the denial of acknowledges2 no more than a futile hearing would Tejeda-Mata’s interpreter request for an gesture. a process, constituted denial of due set forth for the reasons Accordingly, holds that harmless. I sub- the denial was above, of Immi- of the Board the decision mit process that a which is as denial of due gration Appeals is affirmed. fundamental as the sub- denial here ject to review for harmless error. Further- FERGUSON, Judge, dissenting: Circuit more, if error even the harmless standard I here, must dissent. appropriate the error at issue undoubtedly harmful. process the due It is well established applies clause of the fifth amendment requires proceedings and I. hearing. full and fair granted an alien be authority sup- majority cites I&NS, 560, 563 Ramirez v. port harmless error application its 1977). requisites1 statutory Unless the wholly standard That omission is not here. satisfied, alien been hearings such inter- surprising, denial of an because the process protection has not received the due category should fall within that preter3 Wixon, Bridges v. to which he is entitled. exempted ap- from the violations which are 1443, 1452-1453, 65 S.Ct. U.S. by of the harmless error rule I&NS, plication (1945); Hirsch v. 89 L.Ed. 2103 Chapman v. Supreme holding The ma- Court’s pertinent part:

Notes

deportation,” right “entitled to

See 8 which the alien shall have reasonable Determination of proceeding ble for shall be made tunity be in accordance with such alien’s mental ceedings ing inconsistent with this ney tions shall include under the

is derived

General shall to be U.S.C. him before a before a

a full and fair but fails to

present, provisions incompetency only upon

from the

1252(b), special deportability requirements that— present, prescribe. Such special inquiry unless chapter,

notes due

a record made in a

point

inquiry this section shall

hearing prior

it is regulations, not . reason of the

out that this

provides impractica- officer act- the Attor- officer, . . Pro- regula- oppor-

clause.

case at

to

judge’s under the Fifth full and fair points non-English fairness” of portance 563: “Constitutional due edges ly majority’s See, facts of plication

pate in the self—the

improper” e. Ramirez that a out g., refusal absent simultaneous

right

this court’s conclusion

proceeding.

this due particular case. speaking

the same

merely represents deportation hearings involving hearing.” to allow translation Amendment are satisfied

fully

process requirement cannot I&NS, aliens, recognition

understand

process When the to the comport translation. it thus acknowl- its requirements of the “im- 550 F.2d at implicit ap- with due majority

partici-

“plain-

824, 17 87 S.Ct. alien have a California, opportunity U.S. reasonable Chapman, the Court (1967). present, In given L.Ed.2d 705 that he be notice of the are some constitu- him, that “there charges against privi- that he have the their infraction basic that rights tional so lege counsel, of being represented by that as harmless error.” can never be treated he have opportunity a reasonable to exam- 827-828. An alien’s Id. at at against ine the evidence him and to cross- proceedings against right to understand the Id. examine at 862. On subse- witnesses.4 category, within this for him must fall quent court, review by explained we understanding, rights without this that finding compli- Board’s of lack of evidence, and to present, to examine cross- 1252(b) ance with referred “to the failure guaranteed of which are to an examine —all to inform hearing at the 1954 meaningless. alien statute —are rendered that counsel he was entitled to and to the 1252(b); I&NS, Hirsch v. See U.S.C. § ability failure to ascertain his to understand supra, 308 F.2d at 566-67. I am certain English, being interpreter present.” Id. that the never have allowed majority would at 862 n. The failure to reintroduce decision to stand judge’s hearing peti- a crucial “at which evidence Tejeda-Mata had not been allowed to be tioner process,” had been accorded due id. Yet, present hearing. deportation at the held, deporta- at required we that refusal to allow simultaneous translation tion order be set aside. Tejeda-Mata very effectively denied I&NS, In 528 F.2d 224 Orozco-Rangel v. right. meaning have no Presence can ab- 1976), we presence noted the comprehension. right sent to under- interpreter hearing in deportation at a hold must, then, category stand fall into that ing petitioners were accorded rights so that their denial can- process. holding, In so we relied on the not be characterized harmless. See presence of an whose official California, Chapman 380 U.S. at provided services were aliens, 23, 87 at 827-828. counsel’s and his assist fluency Furthermore, previously this court has ance in Significantly, we translation. Id. indicated its concern over the absence of found it out these factors necessary point adequate deportation translation at hear- despite petitioners our “ad conclusion ings. Chung Young Boyd, Chew v. charges upon mitted the essential F.2d 857 we held that re- [deportation] were based.” Id. orders opened hearings provide could not basis Other have also stressed the circuit courts deportation peti- order because of simultaneous translation tioner’s due been violated process rights had ruling on similar to the case below. cases (1954) hearing. at the The record of initial I&NS, Niarchos v. 393 F.2d 509 peti- hearing first revealed that 1968), is illustrative of these courts’ reac- tioner had not been advised of his interpreters tions to the absence of at de- provided and was not with the serv- counsel portation non-English proceedings involving review, ices of an interpreter. On peti- speaking The Niarchos Board of individuals. Immigration Appeals held that the tioner hearing evidence had adduced at the 1954 asked to reverse an earlier the court been subsequent considered at did improperly order because he not have interpreter.5 proceedings. proba- qualified That evidence was not the services of a tive, held, preclud- failed to noted that the since that comply validity ed of the or- provisions challenging of 8 U.S.C. from 1252(b), which requires, departed der because he part, the United States