Trevor A. Waldron v. Immigration and Naturalization Service

WALKER, Circuit Judge,

concurring:

I agree with the majority that the BIA’s deportation order must stand notwithstanding the IJ’s failure to notify petitioner of his right to contact consular authorities and to certify an appeal to the BIA because the petitioner must demonstrate prejudice and has not done so. I also feel, however, that Montilla’s broad ruling that reversal follows per se whenever the INS fails to adhere to a regulation that implicates' a fundamental right cannot be supported. Because the rule may someday be revisited, I express my views separately.

I have no quarrel with the result in Mon-tilla — a reversal where petitioner was not told of his right to be represented by retained counsel. It is entirely consistent with a rule of prejudicial error to hold that some procedural failures, ie., those that affect fundamental constitutional rights, are so serious that prejudice will be presumed. Yet I believe that even in such situations the government could rebut the presumption of prejudice by establishing that the violation could not possibly have altered the result.

I am convinced that Montilla’s articulation of a strict no prejudice standard even on the facts of that case is unsound and in conflict with the precedent of this court. In Economic Opportunity Commission v. Weinberger, 524 F.2d 393 (2d Cir.1975), we examined the issue of whether the Department of Health, Education & Welfare’s failure to adhere strictly to hearing procedures mandated by the Equal Opportunity Act required reversal of the resulting proceedings. In holding that strict compliance was not required, we noted that

“an administrative agency is not a slave of its rules- In a particular case an administrative agency may relax or modify its procedural rules and its action in so doing will not be subjected to judicial interference in the absence of a showing of injury or substantial prejudice.”

Id. at 400 (emphasis added) (quoting Sun Oil Co. v. F.P.C., 256 F.2d 233, 239 (5th Cir.) (citations omitted), cert. denied, 358 U.S. 872 , 79 S.Ct. 111 , 3 L.Ed.2d 103 (1958)). Similarly, in Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.), cert. denied, 382 U.S. 861 , 86 S.Ct. 121 , 15 L.Ed.2d 99 (1965), we held that “Although the harmless error statute, ’28 U.S.C. § 2111, is not in terms applicable to review of administrative action, we perceive no reason why the salutary principle embodied in it should not be so applied....” The holding in Montilla is also at odds with the law in several other circuits. See Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir.1993) (“Harmless errors no more justify reversal in a deportation case than in a criminal case.”); Arzanipour v. INS, 866 F.2d 743, 746 (5th Cir.) (refusing to reverse where IJ’s failure to inform petitioner of his right to appeal “did not result in substantial prejudice”), cert. denied, 493 U.S. 814 , 110 S.Ct. 63 , 107 L.Ed.2d 30 (1989); Delgado-Corea v. INS, 804 F.2d 261, 263 (4th Cir.1986); United States v. Cerda-Pena, 799 F.2d 1374 , 1377 & n. 3 (9th Cir.1986).

It is interesting to note that when we held in Weinberger that an agency need not always strictly adhere to its regulations, we distinguished United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954), the case primarily relied upon by the Montilla majority. In Accardi, the BIA allegedly failed to follow regulations requiring it to exercise its own discretion in reviewing Accardi’s application to suspend *520 deportation, after the Attorney General circulated to the BIA a list of persons, including Accardi, that he wanted deported. The Weinberger court pointed out that in Accar-di, “the administrative decision-making process was conducted in a patently undelibera-tive manner and prejudiced substantial interests of the complaining party.” Weinberger, 524 F.2d at 400 n. 9 (emphasis added); see also McCallin v. United States, 180 Ct.Cl. 220, 234 , 1967 WL 8869 (1967) (citing Accardi as a case “involving substantial noncompliance with regulations which greatly prejudiced plaintiffs therein and, in effect, denied them procedural due process”). Thus, Weinberger cites Accardi as a prejudice case, yet Accardi was used to support Montilla’s proposition that an agency’s failure to follow its own rules requires reversal even absent a showing of prejudice.

I think Weinberger’s view of Accardi is closer to the mark. The alleged actions of the Attorney General and the BIA in Accardi involved intentional circumvention of the applicable regulations, a circumstance not present in Montilla. In any event, Accardi provides scant support for the holding in Mon-tilla.

Our holding in Weinberger also relied, in part, on the judicial review provisions of the APA, which expressly require reviewing courts to take due account of the rule of prejudicial error. See 5 U.S.C. § 706 ; Weinberger, 524 F.2d at 399. Although the Immigration and Nationality Act contains separate procedures for judicial review of deportation and exclusion orders, see 8 U.S.C. § 1105a, the rule of prejudicial error embodied in the APA must still inform our review of INS orders. Consolidated Gas Supply Corp. v. FERC, 606 F.2d 323, 328-29 (D.C.Cir.1979), cert. denied, 444 U.S. 1073 , 100 S.Ct. 1018 , 62 L.Ed.2d 755 (1980). In fact, given that the clear purpose of § 1105a was to expedite the deportation process by eliminating dilatory litigation practices, judicial review of INS orders that does not account for harmless errors cannot be reconciled with that enactment. See H.Rep. No. 1086, 87th Cong., 1st Sess. (1961), reprinted in 1961 U.S.C.C.AN. 2950, 2969, 2973-74; Foti v. INS, 375 U.S. 217, 226 , 84 S.Ct. 306, 312 , 11 L.Ed.2d 281 (1963).

Even if the rule of prejudicial error were not required by statute, Montilla’s per se regime unjustifiably rejects the “salutary principle” embodied in harmless error review; namely, “to preserve review as a check upon arbitrary action and essential unfairness in trials ... without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.” Kotteakos v. United States, 328 U.S. 750, 760 , 66 S.Ct. 1239, 1245 , 90 L.Ed. 1557 (1946). In its place we have substituted a technocratic rule that requires reversal even when the alien was not prejudiced by the procedural deviation or denied the right to correct any perceived errors on administrative review. It is indeed anomalous that a deportee already convicted of a crime can obtain automatic reversal of a deportation order when an IJ fails to follow a regulation derived from constitutional or statutory origin, while a criminal defendant, who enters the system presumed to be innocent, remains subject to the rule of harmless error even when raising a violation of the Constitution itself. See Arizona v. Fulminante, 499 U.S. 279, 306 , 111 S.Ct. 1246, 1262 , 113 L.Ed.2d 302 (1991); Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431, 1438 , 89 L.Ed.2d 674 (1986).

I think that where INS procedures have deprived an alien of a fundamental right, the presence of prejudice will be so clear that it may be presumed, and the court may act accordingly in providing a remedy to the aggrieved alien. However, in many, if not most cases, the lack of prejudice resulting from a procedural error will be so self-evident that reversing the INS’s decision and postponing deportation is a circuitous and wasteful route to the same result. See Nani v. Brownell, 247 F.2d 103, 104 (D.C.Cir.) (per curiam), cert. denied, 355 U.S. 870 , 78 S.Ct. 119 , 2 L.Ed.2d 75 (1957); see also INS v. Abudu, 485 U.S. 94, 107-08 , 108 S.Ct. 904, 913-14 , 99 L.Ed.2d 90 (1988). Perpetuating the per se rule of Montilla-Waldron as it presently stands can only continue to squan *521 der judicial and executive resources, and will simultaneously accord aliens unprecedented rights in the immigration arena — an area over which the executive and legislature have virtually plenary control. See Jay v. Boyd, 351 U.S. 345, 353-54 , 76 S.Ct. 919, 924-25 , 100 L.Ed. 1242 (1956) (relief from deportation order is in all cases a matter of grace); cf. Landon v. Plasencia, 459 U.S. 21, 34-35 , 103 S.Ct. 321, 330-31 , 74 L.Ed.2d 21 (1982) (“The role of the judiciary [in deportation proceedings] is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.”).

I concur.