# Maria Socorro Delgado-Corea and Aminta Espino-Delgado v. Immigration and Naturalization Service > Court of Appeals for the Fourth Circuit · October 20, 1986 · 804 F.2d 261 URL: https://www.frixlaw.com/law-library/cases/9475507 ## Case - **Full name:** Maria Socorro DELGADO-COREA, and Aminta Espino-Delgado, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** October 20, 1986 - **Citations:** 804 F.2d 261; 93 A.L.R. Fed. 535; 1986 U.S. App. LEXIS 32401 - **Precedential status:** Published - **Opinion:** Dissent by Butzner - **Judges:** Widener, Wilkinson, Butzner - **Cited by:** 45 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475507 ## How later opinions describe it (automated extraction) - holding noncitizens must establish prejudice to obtain relief on a claim that they were not properly advised about “the availability of free legal services” as required by federal regulations (quotation marks removed) - holding that prejudice from the denial of a statutory right to counsel must be demonstrated to warrant relief in immigration cases - describing two categories of cases in which the Board has said that “prejudice may be presumed” (quoting Matter of Garcia-Flores, 17 I. & N. Dec. 325, 329 (B.I.A. 1980)) - finding no prejudice demonstrated from failure to provide respondents with list of attorneys in violation of INS regulations ## Opinion text 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. 8 C.F.R. § 242.1 (c). The government’s attorney mistakenly told the immigration judge, in answer to his inquiry, that the Delgados had been furnished the list of attorneys .required by the regulations. Having received this misim formation, the judge proceeded with the hearing. It is unlikely that he would have done so if he had been correctly advised, for surely he had some purpose in asking whether the Delgados had been provided the list to which they were entitled. The Board, of Immigration Appeals recognized that the violated regulation “is an integral part of a procedural 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 relinquishment 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. “[Mjeticulous care must be exercised to insure that a waiver of this right is competently and understandingly made.” Matter of Guttierez, 16 I & N Dec. 2587 at 228 (BIA 1977). The purpose of the regulation in question is to assure that any 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 understanding^ made with knowledge of the existence of free legal services in Los Angeles. *265 The Delgados also claim that they were prejudiced because without counsel’s assistance they were unable to present their asylum claim at the deportation hearing. The government urges us to reject this argument on the ground that the Delgados have not presented on appeal sufficient grounds on which asylum could be granted. 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 the Board’s decisions is limited to the administrative record on which the deportation order is based. 8 U.S.C. § 1105 (a)(4). The government’s argument wrongfully suggests that this court should decide an issue that Congress left in the first instance to the Attorney General. See 8 U.S.C. § 1158 . It is possible that with appropriate legal guidance, the Delgados would have presented a successful petition for asylum to avoid being subjected to the current government of Nicaragua. Other courts, albeit in other contexts, have recognized the importance of affording an alien a reasonable opportunity to present a claim for asylum. See, e.g., Leung v. INS, 531 F.2d 166, 168 (3d Cir.1976); Kovac v. INS, 407 F.2d 102, 108 (9th Cir.1969). Because the outcome of the deportation proceeding could have been different had the Delgados been afforded an opportunity to consult an attorney in accordance with 8 C.F.R. § 242.1 (c), they are entitled to a new hearing. Partible v. INS, 600 F.2d 1094, 1096 (5th Cir.1979). I respectfully dissent. . In support of its ruling the Board cited Matter of Santos, Interim Decision 2969 (BIA June 26, 1984), which, however, does not support the conclusion that the Delgados’ waiver was valid. Santos, in contrast to the Delgados, was given information about the existence of free legal assistance and the address of “Legal Aid" before his deportation hearing. Consequently, the Board concluded he was not prejudiced by the immigration judge’s failure personally to advise him of the availability of legal services. . Section 208.10 of 8 C.F.R. provides that a request for asylum in a deportation hearing shall be made on form 1-589. When the form is filed, the hearing must be adjourned for the purpose of requesting an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs of the Department of State. Because the court is not privy to the State Department’s information about the practices of the present Nicaraguan government, I cannot confidently predict that an advisory opinion would recommend denial of asylum to the Delgados. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475507. Public record. Not legal advice.