stating that the Accardi doctrine is a “long-settled principle that rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency” and “is premised on fundamental notions of fair play underlying the concept of due process”
How later courts described this case
- stating that the Accardi doctrine is a “long-settled principle that rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency” and “is premised on fundamental notions of fair play underlying the concept of due process”
- recognizing that “the cases are not uniform in requiring that every time an agency ignores its own regulation its acts must subsequently be set aside,” but holding that “[t]he doctrine has continued vitality, particularly where a petitioner’s rights are ‘affected’ ”
- holding that “an alien claiming the INS has 6 failed to adhere to its own regulations regarding the right to counsel in a 7 deportation hearing is not required to make a showing of prejudice before he is 8 entitled to relief”
- holding that the INS must adhere to the requirements of 8 C.F.R. § 242.10, which governs the manner in which an alien must be informed of his right to counsel at a deportation hearing
Written by the judges who cited it.
Distinguished
Distinguished by You Ping Jiang v. Holder, 310 F. App'x 468 (2009)
Id. However, Montilla is distinguishable where, as in this case, the BIA recognized the IJ’s error in failing to adjudicate Jiang’s request for CAT relief, and then cured that error by finding that Jiang was ineligible for that relief because he had not so much as alleged that he was likely to be tortured if returned to China.
Distinguished by Trevor A. Waldron v. Immigration and Naturalization Service, 17 F.3d 511 (1994)
The INS contends that a new hearing is not warranted because neither of the INS regulations in question, namely, 8 C.F.R. § 242.2(g), entitled “Privilege of communication,” and 8 C.F.R. § 3.7, entitled “Notice of certification,” apply to Waldron.7 In the alternative, the INS argues that Montilla is easily distinguishable from the facts herein, and that, based upon its interpretation of its holding, Montilla should be…
The opinion
MINER, Circuit Judge,
dissenting:
Because I am convinced that the Immigration Judge fully complied with the INS regulation regarding the right to counsel, I respectfully dissent.
Deportation proceedings before an Immigration Judge must be conducted “in accordance with such regulations ... as the Attorney General shall prescribe[ ],” and the regulations must include a requirement that
the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
8 U.S.C. § 1252 (b)(2) (1988).
The INS regulation in question goes beyond the statutory requirement. It directs the Immigration Judge to
advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice ... in the proceedings and require him to state then and there whether he desires representation; advise the respondent of the availability of free legal services programs ....
8 C.F.R. § 242.16 (1990).
It seems to me that the Immigration Judge scrupulously complied with the regulation in this case. At their first meeting, *171 he advised Montilla of his right to an attorney, provided him with a list of Legal Aid lawyers, advised him of his right to present evidence in the form of witnesses, and discussed the hearing procedure, the object of the hearing and the right to appeal. The Judge specifically asked Montilla whether he wanted time to prepare or to find an attorney. When Montilla replied that he “really [didn’t] know what to do,” the Judge told him he could not advise him and then adjourned the matter for two weeks so that Montilla could “talk about this with an attorney.”
The Judge performed the duty imposed upon him by the INS regulation — he required Montilla to state whether representation was desired after fully advising him of his right to be represented. The regulation does not command that the answer to the inquiry be responsive. According to my brethren, the Immigration Judge failed to comply with the regulation because “Montilla never faced and decided [the] question.” At p. 169. I disagree with that statement in two respects. First, I think that Montilla “faced” the question because he apparently understood that he had the right to an attorney at his own expense; I think that he “decided” the question because he appeared on the adjourned date without counsel, prepared to proceed. Second, the regulation does not mandate a particular form of response or any response at all, so it cannot be said that the Judge failed to comply with the regulation because the answer to his question was not responsive. Montilla was entitled to stand mute if he wished to do so. The regulation focuses on the Immigration Judge, not on the respondent, at the hearing. That Mon-tilla indicated an uncertainty about how he desired to proceed does not gainsay the fact that the Judge fully complied with the regulation by advising Montilla of the right to counsel and asking whether he wanted one.
Rios-Berrios v. INS, 776 F.2d 859 (9th Cir.1985), said by Montilla to “bear a striking resemblance to this case,” is not to the contrary. The record in that case did not disclose that petitioner was advised at the first deportation hearing “of his right to counsel of his own choice or of the availability of free legal counsel.” Id. at 860-61 . The record merely contained a statement of the Immigration Judge adjourning the hearing for one working day “in light of petitioner’s statement that he needed time to find a lawyer.” Id. at 861 . Petitioner appeared without counsel on the adjourned date and stated that he had called a friend who was in contact with a lawyer. The Judge gave petitioner another 24-hour adjournment and admonished him that the hearing would proceed even if no counsel were present. The hearing did in fact go forward without any further reference to counsel. The Ninth Circuit, finding that the Immigration Judge failed to comply with the regulation and the statute, predicated its decision on a totality of circumstances analysis:
We merely say that his transfer [to Florida], combined with the unexplained haste in beginning deportation proceedings, combined with the fact of petitioner’s incarceration, his inability to speak English, and his lack of friends in this country, demanded more than lip service to the right of counsel declared in statute and agency regulations, a right obviously intended for the benefit of aliens in petitioner’s position.
Id. at 863 .
The main difference between the case at bar and Rios-Berrios lies in the failure of the Immigration Judge in the latter case to comply with the regulation in the first instance by furnishing the specific advice and making the specific inquiry required. The advice was furnished and the inquiry was made in the case at bar. Montilla has resided in the United States for 17 years, has family and friends in this country, and is familiar with the English language. Moreover, he was afforded a two week adjournment to secure counsel, but the alien in Rios-Berrios was afforded only two 1-day adjournments for that purpose. Having been convicted of conspiracy to possess cocaine with intent to distribute it after a jury trial, it would seem that Mon-tilla was well aware of the benefits of *172 counsel and chose not to have one in the deportation hearing.
In view of the foregoing, I see no need to revisit the Accardi doctrine, to adopt or reject a “prejudice test” or to decide this case on constitutional grounds.