Interim Decision #2587
MATTBR OF GU'lltalRE
In Deportation Proceedings
A-31404629
Decided by Board May 26, 1977
(1) Where the record showed that the immigration judge took scrupulous care to inform
respondent of his right to be represented by counsel and old the availability of Legal Aid
counsel at no charge to respondent and the immigration judge offered to adjourn the
hearing to enable respondent to obtain counsel but respondent nonetheless desired to go
ahead with the hearing, the respondent was sufficiently informed of his right to be
represented by counsel at the hearing in compliance with 8 C.F. R. 242.16(a) and 8 C.F.R.
242.10.
(2) Where respondent's statements revealed en ennfecine ny• misunderstanding about the
nature of the proceedings or of his right to be represented by counsel and there was no
evidence that the respondent lacked a clear understanding of his right to be represented, the availability of Legal Aid counsel free of charge, or the consequences of
Proceeding without counsel, respondent's waiver of CO, 171SPi was keewingly, intelligently and competently made.
(3) Where respondent's waiver of counsel was an effective arid competent waiver, respondent's contention that failure of the immigration judge to appoint counsel at Government expense was a denial of due process, is without merit.
CHARGE:
Order: Act of 1952---,Section 241(a)(11) [S U.S.C. 1251(a)(11)]--Convicted of any law or
regulation relating to the illicit possession ur trafficking in
marihuana
011 BEHALF OF RESPONDENT: Robert Guerra, Esquire
Legal Aid Foundation of Los Angeles
5228 Whittier Boulevard
Los Angeles, California 90022
Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
The lawful permanent resident respondent, a native and citizen of
Mexico, was found deportable under section 241(a)(11) of the Immigratiom and Nationality Act, as an alien convicted of a crime relating to the
illicit possession of marihuana, at a hearing before the immigration judge
on December 9, 1976. Upon finding that no relief from deportation was
a-vailahle, the immigration judge ordered the respondent deported to
Yiexico. The respondent now appeals the finding of deportability, alleg-
226
Interim Decision #2587
ing that his lack of counsel at the hearing resulted in a denial of due
process of law. The appeal will be dismissed.
The respondent was admitted for permanent residence as the spouse
of a United States citizen on January 25, 1972. This marriage apparently
ended in divorce. On March 1, 1976, the respondent was convicted in
United States District Court for the Southern District of California
upon a plea of not guilty to the offense of possession of 30 pounds of
marihuana with intent to distribute. He was sentenced to imprisonment
for a period of one year, and was required to serve a special parole term
of five years. On appeal to the United States Court of Appeals for the
Ninth Circuit, this judgment was affirmed on August 5, 1976. On October 22, 1976, the respondent was served with an Order to Show Cause
charging him with deportability under section 241(a)(11) of the Act. At
the December 9, 1976 hearing, the respondent waived the right to
counsel, despite being advised by the immigration judge of the availability of Legal Services counsel at no charge to the respondent and despite
the immigration judge's offer to continue the hearing to allow the
respondent to seek legal assistance. The respondent conceded all the
allegations in the Order to Show Cause, but denied deportability. The
immigration judge found him deportable, and found that he was ineligible for any form of discretionary relief. The immigration judge therefore
ordered the respondent deported to Mexico.
On appeal, the respondent, through counsel, contends that the immigration judge failed to advise him of his right to counsel, in violation of 8
C.F.R. 242.16. He also contends, that the waiver of his right to counsel
was not voluntary, understanding or competent. Last, he claims that
the failure of the immigration judge to appoint counsel at the Government's expense denied him a fair hearing. The respondent argues that
these deficiencies, taken separately or together, resulted in a denial of
his right to procedural due process of law under the Fifth Amendment
to the United States Constitution.
A deportation hearing is not a criminal proceeding. Zakonaite v.
Wolf, 226 U.S. 272 (1912). Therefore, any right to counsel derives not
from the Sixth Amendment, but from the Fifth Amendment right to a
fair hearing. Barth°ld v. INS,
517 F.2d 689 (5 Cir. 1975). 8 C.F.R.
242.10 and 8 C.F.R. 242.16(a) provide that an alien shall have the right
to counsel in a deportation proceeding at no expense to the Government,
and that the immigration judge shall inform him of that right.
Counsel contends that the immigration judge's conduct at the hearing
represented only a "feeble attempt" to inform the respondent of his
right to be represented by counseL We disagree. We note first that the
Order to Show Cause served on the respondent contained a notification
of the right to counsel at the deportation hearing. Murgia-llifelend-rez -v.
INS,
407 F.2d 207 (9 Cir. 1969). Second, even a cursory reading of the
227
Interim Decision #2587
transcript of the hearing reveals that the immigration judge took
scrupulous and commendable care to inform the respondent of his right
to be represented, the availability of legal counsel from Legal Aid at no
charge to the respondent, and his willingness to adjourn if the respondent desired to secure Legal Aid counsel (Tr. p. 1). The respondent,
however, expressed his desire to "go ahead with the hearing" (Tr. p. 2).
We find that the respondent was sufficiently informed of his right to be
represented at the hearing.
Counsel next alleges that the immigration judge did not "attempt to
ascertain whether the respondent was competent to make the waiver"
of counsel (Respondent's Brief, p. 5). The right to counsel outlined in 8
C.F.R. 242.10 may be waived by the alien_ Milian Garcia v. INS, 343
-
F.2d 825 (9 Cir. 1965); Dentico v. INS, 280 F.2d 71 (2 Cir. 1960); see
Appleman, I., "Right to Counsel in Deportation Proceedings," 14 San
Diego L.R. 130 (1976). However, since the right to counsel is an important right often essential to the fundamental fairness of a hearing,
meticulous care must be exercised to insure that a waiver of this right is
competently and understandingly made. De Souza v. Barber,
263 F.2d
470 (9 Cir.), cert. denied
359 U.S. 989 (1959); Bridges v. Wison,
326
U.S. 135 (1945). It is the duty of the immigration judge to insure that a
waiver of the right to counsel is competently and understandingly made.
Kovac v. INS,
407 F.2d 102 (9 Cir. 1969); U.S. ex rel. Castro-Lonzan v.
Zimmerman,
94 F. Supp. 22 (E.D. Pa. 1950). The criteria for determining whether the right to counsel .has been competently waived are
identical to those employed to determine the competency of a confes
sion. Murgia Melendrez v. INS, supra. Therefore, in assessing the
-
competency of a waiver of the right to counsel, the respondent's age,
intelligence, education and ability to comprehend must be considered.
Murgia Melendrez v. INS, supra.
-
-We have reviewed the record transcript, and find no evidence that the
respondent lacked a clear understanding of his right to be represented,
the availability of Legal Aid counsel free of charge, or the consequences
of proceeding without counsel. The respondent is 28 years old and has
lived and worked in the United States for four years. Although he has
had only four years of education, the hearing was conducted in the
respondent's native Spanish, and the respondent's statements reveal nn
confusion about or misunderstanding of the nature of the proceedings or
of this right to be represented. The immigration judge is not required to
state for the record that he finds the respondent competent to waive
counsel. Our review of the record satisfies us that the respondent's
waiver of counsel was knowingly, intelligently and competently made.
Rurquez v. INS, 513 F.2d 751 (10 Cir. 1975). We therefore find that the
riepondent's second contention is without merit.
Counsel's last contention, that the immigration judge's failure to
228
Interim Decision #2587
appoint counsel at the Government's expense, is also without merit in
this forum.. While the validity of the rule in Section 292 of the Act that
counsel in a deportation hearing shall be at no expense to the Government has been recently questioned, Aguilera-Enriquez v. INS, 516
F.2d 565 (6 Cir. 1975); Barthold v. INS, supra; Rosales-Caballero v.
INS,
472 F.2d 1158 (5 Cir. 1973); Henriques v. INS,
465 F.2d 110 (2 Cir.
1972), we are precluded from entertaining constitutional challenges to
the Act itself. Moreover, the respondent's effective and competent
waiver of any right he might have had to counsel renders any such claim
insubstantial in this case. In Barthold v. INS, supra, the court, in a case
involving similar facts, stated: "Lack of counsel in this case does not
constitute a denial of due process because (the respondent) was offered
an opportunity to obtain counsel he could afford . . . [W]hatever the
scope of an alien's right to counsel (the respondent) by his actions
effectively waived such right."
517 F.2d at 691-692. We find that the
respondent's waiver of his right to counsel negates any claim of a denial
of due process through lack of appointed counsel at the deportation
hearing. Our review of the record satisfies us that the hearing was fair,
that deportability was established by clear, convincing, and unequivocal
evidence, and that the respondent's waiver of his right to counsel was
knowingly- , intelligently, and competently made. We therefore shall
dismiss the appeal.
ORDER: The appeal is dismissed, and the respondent is ordered
deported to Mexico in accordance with the terms of the immigration
judge's decision.
Regardless of the enclosed decision, you may be allowed to stay in the
United States because of a recent court ruling if you registered with an
American consul for an immigrant visa before January 1, 1977, and
entered the United States prior to March 11, 1977. The court ruling
relates to the case of Silva v. Levi, 76 C 4268 (N.D. Ill.). Please contact
your attorney or authorized representative or an INS office for further
information.
Irrespectivamente de la decisio'n que se incluye, usted puede estar
autorizado a permancer en los Estados Unidos a causa de una reciente
determinacion judicial si usted se registro con un consul Americano
para una visa de inmigrante antes del primer° de Enero de 1977, y
entro' a los Estados Unidos previo al 11 de Marzo de 1977. La determinacio'n judicial se refiere al caso de Silva v. Levi, 76 C 4268 (N.D.
Favor de comunicarse con su abogado, o su representante autorizado o una oficina del Servicio de Inmigracidn y Naturalization
para mas information.
229
