Norma C. Diric v. Immigration & Naturalization Service
400 F.2d 658
9th Cir.
1968
Check Treatment

*2 without counsel. CHAMBERS, Before HAMLIN and Judges. Circuit On December petitioner’s ap- officer denied HAMLIN, Judge: plication adjustment of status and Diric, petitioner ineligible Norma herein, C. is a found her de- Philippines. parture. native and citizen of the He therefore ordered her de- 1255(a) provides: 1254(e). Attorney 1. 8 § “The Gen- * * * may, discretion, permit status an alien in- who was eral in his spected paroled and admitted or into the alien * * * under adjusted may depart voluntarily United States the At- from the torney General, in his discretion and un- United States at his own in lieu regulations may prescribe, der such as he if such alien shall estab- lawfully Attorney to that of an alien admitted for lish to the satisfaction permanent (1) is, been, person residence alien General that he and has application adjustment, makes an for such moral character for at least five (2) years immediately preceding applica- the alien is an im- receive migrant voluntary departure visa and is admissible tion for this permanent residence, United States subsection.” (3) visa is applica- available to him at the time his approved.” tion is prior to ported arrival States, living had been Thereafter obtained the United out man, proceedings. of wedlock with a married moved leaving January four about Philippines months before On abortion. motion. Petitioner had had an denied the denying appealed order mo- whether she then she was asked *3 Board, May 5, 1967, and such and tion to the had made a statement whether readily appeal it true. the Board the dismissed. was She admitted that ordered appeal is she had made it from the latter order the statement and that that juris- was taken court which true. to this was 1105a. diction place stamp approval We do our upon type ques- procedure establishes without the used at times record by petitioner tion He that the In the should have fact, testify petitioner not con- called witnesses to rather than counsel does argue, merely petitioner tend however, ask if otherwise. Petitioner does certain state- petitions in that the denial of her ments their were letters true. Such shortcutting (adjust- may deny petitioner for relief under section 1255 the status) 1254(e) ment of and section to confront and cross- (voluntary departure) upon examine these based witnesses is therefore improper disagree. improper. improper If evidence. We evidence were the basis for the of the action attorney the the trial officer we would remand questioned petitioner concerning certain hearing. the letters and in her statements that were even if all such were immigration file. One such letter was disregarded admitted, or had not been sponsored from aunt who had ample there still basis the denial her arrival into the United an- discretionary Philip- other was from her father in the pines; and one was from her sister. petitioner Under section 1255 These among things letters indicated that there was must establish other that family disapproval immigrant of her in conduct the she is for an visa and States; particularly regard immigrant in to that an visa alleged relationship illicit with a available The record shows that her. preference married man. quota asked no had the statements contained in these letters that replied non-preference were in portion effect that quota true. of the some of them chargeable were others not. were to which she was over unavailable, She was also asked whether desired subscribed and immigrant and that an brought her aunt hearing uncle visa was not therefore availa replied to confront her. She prevent ble. This in itself would her any that she didn’t want being to see them statutorily eligible from adjust attorney more. produced The trial ment of status. an affidavit made man married Upon request her petitioner any and asked whether she had departure, requirement in addition to the objection replied to it. She that she had prove her character, moral objection. no The affidavit described regulations require applicant petitioner activities of and the married depart “has immediate means to man in the United States while voluntarily from the United States.” 8 employ; specifically any in it denied C.F.R. 244.1. Petitioner testified that part petitioner. misconduct on the money pay way she had no back investigation by In .the course of the Immigration and Naturalization Service, petitioner had For types made a statement both of relief investigator to an in burden was while she was on the to establish hearing. deny reopen the bring her motion to her- relief and a basis made after This motion was requirements self within the and stated that had obtained counsel produced such evidence. no statute. She would, forward- come new The record before good moral of her upon evidence basis devoid of motion, however, made character. The action could be taken. which favorable Immigration would be statement As stated Santos v. visa able to establish that Service, F.2d Naturalization immediately available, or that she extraordinary (9th 1967), Cir. depart had obtained funds sufficient provided in Section not, therefore, voluntarily. could granted Act 245 of the can granting always from cases; have benefited meritorious burden is motion to ac- upon the alien to establish that his *4 cordingly find no error in its denial. plication for such merits favorable consideration." argues Finally, petitioner argues Petitioner also im statement and right was denied her to counsel at the properly not admitted because right given warning keeping Such with Miranda granted by 1252(b) (2).3 Arizona, U.S.C. § v. State of 384 U.S. S.Ct. find (1966). no merit this contention. The L.Ed.2d 694 This was record shows that at questioning; the first Miranda-type peti not special inquiry custody, of and no tioner was not ficer advised that she had a criminal were involved. We right represented by nothing progeny counsel of her or find in Miranda its expense own selection exclusionary and at no to the apply would its rule which government. proceed hearings. She elected to without counsel. Petitioner asserts of the record in A careful examination given there was no similar instruction convinces us that has case 12,1966. the second on December setting established basis for the not since the second deportation. aside of the order of merely first, a continuation of above instruction affirmed. order is therefore waiver of counsel clearly applicable. Moreover, only requires statute (concurring): Judge right told of her to counsel vis-a-vis a I result reached While with the deportability. on the issue of majority opinion, in the I am satisfied deport- first case majority’s gentle reprimand ability completely made out I Government’s government; the second should condemned believe that we have review motions stronger Thus, if the even his conduct in terms. dis- apply waiver of counsel does not depart our tresses me that an alien must 12, petitioner’s on December country justified impression with the right to counsel was not abused. that the Government of through advocate, alleges over-zealous that it special inquiry unnecessarily was error unkind, for the been if not abusive. 1252(b) (2) provides ment) by prac- 3. 8 U.S.C. that “the authorized to privilege being rep- alien shall have the tice in as he shall * * (at resented to the Govern- choose