MATTER OF SANTOS
In Deportation Proceedings
Decided by Board June 26, 1984
Interim Decision #2969
A-24879910
An alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated. - In cases arising outside of the United States Courts of Appeals for the Seventh Circuit and the District of Columbia Circuit, a violation of the right to counsel in a deportation proceeding may be disregarded as harmless error so long as the violation is not fundamentally unfair and does not demonstrably prejudice the alien.
- The scheduling of a deportation hearing on less than 7 days’ notice does not violate either the notice requirement of
8 C.F.R. § 242.1(b) (1984) or the constitutional guarantee of due process when the district director finds the public interest requires shorter notice, the notice is reasonable under the circumstances of the case, and the alien is nоt prejudiced.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
ON BEHALF OF RESPONDENT:
Harold Green, Esquire
6917 Old Seward Highway
Anchorage, Alaska 99502
ON BEHALF OF SERVICE:
David B. Hopkins
General Attorney
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The respondent has appealed from the December 30, 1982, summary decision of an immigration judge finding him deportable as an overstay pursuant to section 241(a)(2) of the Immigration and Nationality Act,
The respondent is a 48-year-old male native and citizen of the Philippines. He entered the United States at San Francisco, California, on Junе 2, 1982, as a nonimmigrant visitor for pleasure who was authorized to remain in this country until August 30, 1982. He failed to depart by that date. On November 16, 1982, prior to the institution of deportation proceedings, the Immigration and Natu-
A deportation hearing was convened before the immigration judge 1 day later, on December 28, 1982. At that hearing the respondent requested an opportunity to secure counsel and was granted a continuance of 1 day to do so. At the reconvened hearing on December 29, 1982, the respondent, who had been unable to retain an attorney, waived his right to counsel and, testifying in response to questions put to him by the immigration judge, admitted the factual allegations in the Order to Show Cause. In a summary decision the immigration judge found the respondent deportable as charged on the basis of his admissions. Upon ascertaining that the respondent wished to depart voluntarily instead of being deported, the immigration judge granted the respondent voluntary departure until December 30, 1982, or any extension beyond that date that may be granted by the district director. The respondent waived his right to appeal the immigration judge‘s decision.
On January 3, 1983, the respondent, with the assistance of counsel, filed this appeal. He contests the legality of his waivers of counsel and of appeal, challenges the sufficiency of the evidence of deportability, and contends that the Service and the immigration judge violated not only various regulations, but the fifth amendment‘s guarantee of due process. We shall assume jurisdiction over the case by certification as provided in
As a preliminary matter, we will address the respondent‘s argument that the evidence in the case is insufficient to support the finding of deportability. When an alien is charged with being deportable as an overstay pursuant to section 241(a)(2) of the Act, there must be “clear, unequivocal, and convincing evidence,” Woodby v. INS, 385 U.S. 276, 286 (1966), that the alien was admitted as a nonimmigrant fоr a temporary period, that the period elapsed, and that he did not depart. Ho Chong Tsao v. INS, 538 F.2d 667, 668 (5th Cir. 1976), cert. denied, 430 U.S. 906 (1977); Milande v. INS, 484 F.2d 774, 776 (7th Cir. 1973); see also Torabpour v. INS, 694 F.2d 1119, 1122 (8th Cir. 1982); Cabuco-Flores v. INS, 477 F.2d 108, 110 (9th Cir.), cert. denied, 414 U.S. 841 (1973). The respondent freely admitted, under oath, that he entered the United States as a nonimmigrant, that he was authorized to remain until August 30, 1982, that he received an extension until December 15, 1982, and that he did not depart by that date. These admissions are clear, unequivocal, and convincing and prove each of the elements of the charge of deportability. See, e.g., Milande v. INS, supra. Thus, we find them wholly sufficient to support the order of deportation.
The respondent contends that we should reverse the order of deportation because his right to counsel was violated at his deportation hearing, thereby denying him due process. Specifically, the respondent argues that he was not given an adequate opportunity to obtain counsel and that hе did not effectively waive his right to counsel once the hearing commenced. We do not believe the respondent was denied the privilege of counsel at his hearing. The immigration judge granted the respondent‘s request for a continuance so that he could have an opportunity to obtain counsel and, at the reconvened hearing, the respondent did not request more time to seek counsel or indiсate he still wished to secure representation. See Millan-Garcia v. INS, 343 F.2d 825, 829 (9th Cir.), vacated and remanded on other grounds, 382 U.S. 69 (1965). In addition, the respondent‘s waiver of counsel appears to have been voluntary, knowing, and intelligent. There is no indication, whatsoever, that he waived counsel because of undue Government influence, nor do his statements at the time of the waiver reveal any confusion about the nature of the proceedings, his privilege of being represеnted, or his rights to present evidence, cross-examine witnesses, and object to the Government‘s evidence. See Burquez v. INS, 513 F.2d 751, 755 (10th Cir. 1975); Matter of Gutierrez, 16 I&N Dec. 226 (BIA 1977). Moreover, the immigration judge sufficiently informed the respondent of his privilege of counsel. See United States v. Barraza-Leon, 575 F.2d 218, 222 (9th Cir. 1978); Matter of Gutierrez, supra.
Nevertheless, even if the respondent was not given sufficient time to obtain counsel or did not effectively waive counsel, it does not automatically follow that he has been denied constitutional due process. We have held an alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated. Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980). This is consistent with the rule that an alien must have been prejudiced by a procedural defect in his deportation proceeding before he will be found to have suffered a denial of due procеss. See Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir. 1981); United States v. Calles-Pineda, 627 F.2d 976, 977-78 (9th Cir. 1980); Tejeda-Mata v. INS, 626 F.2d 721, 727 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982); see also United States v. Vega-Mejia, 611 F.2d 751, 752 (9th Cir. 1979); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238-39 (9th Cir. 1979), cert. denied, 449 U.S. 828 (1980); Bowe v. INS, 597 F.2d 1158 (9th Cir. 1979); Nicholas v. INS, 590 F.2d 802, 808-10 (9th Cir. 1979); United States v. Barraza-Leon, supra, at 221; Orozco-Rangel v. INS, 528 F.2d 224 (9th Cir. 1976); Chung Young Chew v. Boyd, 309 F.2d 857, 864-65 (9th Cir. 1962). We consider this rule to apply with equal force to the contention that an alien has been denied due process in his deportation proceeding because of conduct that amounts to a violation of his right to counsel.
The “right” to counsel does not arise by operation of the sixth amendment, for deportation proceedings are not criminal prosecutions. Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977); Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974); Murgia-Melendrez v. INS, 407 F.2d 207, 209 (9th Cir. 1969). Rather, this “right” is the opportunity, created by the Act and the regulations, of being represented by qualified counsel of choice, at no expense to the Government. See, e.g., Ramirez v. INS, supra; see also sections 242(b), 292 of the Act,
The respondent argues, however, that the privilege of counsel is so fundamental that its violation can never be considered harmless error. This position has been accepted by the United States Courts of Appeals for the Seventh Circuit and the District of Columbia (“D.C.“) Circuit, both of which have held that a violation of the privilegе of counsel in deportation proceedings is inherently prejudicial and is not subject to the harmless error doctrine. Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Yiu Fong Cheung v. INS, 418 F.2d 460 (D.C. Cir. 1969). These courts, which relied exclusively on decisions in criminal cases to support their position, did not address the distinction between deportation proceedings and criminal trials. See, e.g., Woodby v. INS, supra, at 285-86; Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952). Moreover, these courts based their decisions upon the premise, rejected in United States v. Morrison, supra, and Moore v. Illinois, supra, that violations of the right to counsel may never be considered harmless, even where no prejudice ensues. For these reasons, we decline to follow the position of the Seventh and the D.C. Circuits outside of those circuits. Since the respondent‘s case arises in the Ninth Circuit, we hold that a deprivation of counsel does not amount to a denial of due process so long as it was harmless error, i.e., so long as it was not unfair or did not demonstrably prejudice the respondent.1
At the deportation hearing the respondent readily admitted the facts which make him deportable as charged. He has not denied those facts nor has he challenged the legality of his admissions.2 In
The respondent has also raised a number of other procedural objections to his deportation hearing. Several of these objections are frivolous. The objection that the respondent was neither provided with nor given an opportunity to secure an interpreter ignores the fact that there was no apparent need for an interpreter becаuse the respondent did not request one and appeared to understand and speak English well. The objection that the respondent was not advised that his statements might be used against him, in violation of
The respondent has also argued that the Service‘s regulations were violated, thereby denying him due рrocess, because he was not advised of the availability of a free legal services program. The regulations require an immigration judge at the opening of a deportation hearing to advise an alien of the availability of such programs and to ascertain whether the alien has received a list of them.
The respondent‘s final procedural objection is that he was not given sufficient notice of his deportation hearing, in violation of
The respondent has received all of the basic prerequisites of a fundamentally fair hearing: he was notified of the charge against him 2 days before he chose to proceed with his hearing; he was given the opportunities to retain counsel, to be heard, and to produce evidence and witnesses to refute the evidencе against him; and his case was decided by an unbiased immigration judge and by the Board based upon substantial evidence of record. See Whitfield v. Hanges, 222 F. 745 (8th Cir. 1915). Thus, inasmuch as none of the alleged procedural defects, individually or in the aggregate, affected the outcome of the respondent‘s case or the validity of the deportation order, we cannot agree that he has been denied constitutional due procеss. Accordingly, the appeal will be dismissed.
We note that the respondent has contested the immigration judge‘s grant of voluntary departure. We need not decide whether it was reasonable for the immigration judge to grant the respondent 1 day to arrange his departure inasmuch as he has now been
ORDER: The appeal is dismissed.
FURTHER ORDER: In lieu of deportation, the respondent is permitted to depart voluntarily from the country without expense to the Government within 15 days from the date of this order, or any extension beyond that date as may be granted by the district director and under such conditions as he may direct. In the event of failure so to depart, the respondent shall be deported as provided in the immigration judge‘s order.