Interim Decision #2969

Interim Decision #2969

MATTER OF SANTOS

In Deportation Proceedings

A-24879910

Decided by Board June 26, 1.984

(1) 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.

(2) 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 vioianon is not fundamentally unfair and dues nut. demonstrably- prejudice the alien.

(3) 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 not prejudiced.

CHARGE

Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. §1251(aX2)]--Nonimmigrant—remained longer than permitted

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; Mania's, Dunne, Morras' , and Vnees, %aril 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, 8 U.S.C. § 1251(a)(2) (1982). The appeal will be dismissed.

The respondent is a 48-year-old male native and citizen of the

Philippines. He entered the United States at San Francisco, California, on June 2, 1982, an 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-

Interim Decision #2969

ralization Service granted the respondent the privilege of departing

voluntarily from the United States before December 15, 1982. He

again failed to depart within the time allotted. On December 27,

1982, the Service arrested the respondent in Anchorage, Alaska,

and commenced deportation proceedings against him by issuing an

Order to Show Cause, Notice of Hearing, and Warrant for Arrest of

Alien (Form I-221S) charging him with deportability pursuant to

section 241(a)(2) of the Act for remaining in the United States

longer than permitted.

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 8 C.F.R. § 3.1(c) (1984), thus

mooting the issue of whether the respondent effectively waived his

right to appeal.

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 for 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 (19T1); Mi

lands 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

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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 90, 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 he 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 indicate he still wished to secure representation.

See Milian Garcia v. INS, 343 F.2d 825, 829 (9th Ch.), 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 represented,, or his rights to present evidence, cross-examine witnesses,

and object to the Government's evidence. See Burquez v. IN% 513

F.2d 751, 755 (10th Cir. 1975); Matter of Gutierrez, 16 I&N Dec. 226

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(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 GarciaFlores, 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 process. See Ka Stung Chan INS, 624

AFf

Interim Decision #2969

F.2d 248, 258 (5th Cir. 1981); United States v. Calles-Pinecla, 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, 694 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`, 59D 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); MartinMendoza v. ma 499 F.2d 918, 922 (9th Cir. 1974); Murgia-Melencis es 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. IN& supra; see also sections

242(b), 292 of the Act, 8 U.S.C. §§ 1252(b), 1362 (1982); 8 C.F.R.

§ 242.10 (1984). An erroneous violation of this statutory privilege is

not, as a matter of law, so egregious or inherently unfair that it

amounts to a per se denial of due process. For example, the ineffective assistance of counsel in a deportation proceeding does not

amount to a denial of due process unless it has been unfair or has

prevented an alien from reasonably presenting his case. Thorsteins-

son v. INS, 724 F.2d 1365, 1367 (9th Cir.), cert. denied, 467 U.S. 1205

(1984); Paul v. INS, 521 F.2d 194, 199 (5th Cir. 1975). Similarly, the

absence of counsel at a deportation hearing does not constitute a

denial of due process without some showing of prejudice to the

alien. Ramirez v. WS, supra, at 562, 565; Aguilera-Enriquez v. INS,

516 F.2d 565, 569 (6th Cir. 1975); Burquez v. INS, supra, at 755;

Martin-Mendoza v. INS, supra, at 922; Villanueva-Jurado v. INS,

482 F.2d 886, 888 (5th Cir. 1973); Henriques v. INS, 465 F.2d 119,

120-21 (2d. Cir. 1972), cert. denied, 410 U.S. 968 (1973); Sumio Madokoro v. Del Guercio, 160 F.2d 164, 167 (9th Cir.), cert. denied, 332

U.S. 764 (1947); Matter of Escobar, 18 I&N Dec. 412 (BIA 1983). The

Supreme Court has recently acknowledged that even violations of

the right to counsel in criminal proceedings may be disregarded as

harmless error in appropriate cases. United States v. Morrison, 449

U.S. 361, 365 (1981); see also Moore v. Illinois, 434 U.S. 220, 232

(1977). If this is the rule in criminal proceedings where the right to

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counsel is grounded in the specific guarantee of the sixth amendment, it is, a fortiori, the rule in deportation proceedings where the

statutory privilege of counsel is grounded in the due process concept of fairness. That concept necessarily includes consideration of

the harm or prejudice caused by erroneous conduct.

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

privilege of counsel in deportation proceedings is inherently prejudicial and is not subject to the harmless error doctrine. CastanedaDelgado 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 exclu-

sively 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 he 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.'

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 admissiona. 2 In

Our holding is distinguishable from the decision in Castro Nunn v. INS, 577 F.2d

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577 (9th Cir. 1978), in which the Ninth Circuit reversed an order of deportation

when an immigration judge failed to continue an alien's deportation hearing until

such time as counsel retained by the alien could be present. In that case, the Ninth

Circuit held that the immigration judge had denied the alien his statutory privilege

of counsel and thereby had committed a reversible abuse of discretion. Id. at 579.

There was no contention in that case, however, that the violation of the privilege of

counsel was harmless error. Thus, the Ninth Circuit did not address the issue.

2 This is not a case in which counsel validly could have advised the respondent

that he had a fifth amendment privilege to remain silent in response to the questions about his alienage and his failure to depart within the authorized time. The

fifth amendment privilege against compelled self-incrimination exists only when a

person is asked to testify to incriminatory facts, i.e., facts which could make him

Continued

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the appellate stage of these proceedings the respondent has received the assistance of counsel in presenting his procedural objections to the order of deportation. Counsel has not advanced any arguments which refute the finding of deportability nor has he

shown that the respondent was eligible for any form of discretionary relief from deportation other than that which he received, vol-

untary departure. Thus, this is a case in which the operative facts

are undisputed, deportability is clear, and the respondent has been

given a fair opportunity to challenge the deportation order on

appeal and has failed to show how the presence of counsel would

have changed the outcome. Under these circumstances, any erroneous violation of the privilege of counsel that may have occurred

was neither unfair nor prejudicial to the respondent and therefore

did not amount to a denial of due process requiring a new hearing.

See Henriques v. INS, supra, at 121.

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 because

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 8 C.F.R. §§ 242.1(c) and 242.2(a) (1982), is unsupported by the

record. The regulations cited pertain to advice an alien is to receive

before a deportation hearing commences, either upon service of an

Order to Show Cause or upon arrest, and the record contains no

information whatsoever about the Service's conduct at this point in

the proceedings. Moreover, once the respondent was placed under

oath at his deportation hearing, he had no right to remain silent to

nonincriminating questions, see supra note 2, and he was under an

obligation to answer any questions truthfully or suffer the adv erse

inferences that could be drawn from his silence. United States ex

rel. Vajtauer v. Commissioner, 273

States ex rei Bilohum.sky v. Tod,

U.S. 103, 110 (1927); United

263 U.S 149, 154 (1923); Chavez-

RGya v. INS, 519 F.2d 397, 401 (7th Cir. 1975). The objection that

the Order to Show Cause provided insufficient notice of the charges

against the respondent and required an explanation is wholly without merit. The Order to Show Cause fully complied with the notice

subject to criminal prosecution. See Minnesota v. Murphy, 465 U.S. 420, 435 n.7

(1984); Wail v. INS, 722 F.211 1442 (9th Cir. 1984); Mattor of Carrillo, 17 T&N Dec. 30

(31A 1979). No crime is implicated when an alien overstays his allotted time. Thus,

the facts which the respondent was asked to, and did, admit were nonincrizainatory

facts and he had no valid basis for asserting a fifth amendment privilege.

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requirements of the regulations: it contained a recitation of the

legal authority under which the deportation proceedings would be

conducted, a statement of the facts which made the respondent's

conduct unlawful, and a designation of the charges against the respondent and the statutory provisions he violated. 8 C.F.R.

§ 242.1(b) (1982). The respondent made no request to be provided

with an explanation of the Order to Show Cause, nor did he express any uncertainty when he admitted each of the allegations.

The respondent has also argued that the Service's regulations

were violated, thereby denying him due process, 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. 8 C.F.R. § 242.16(a) (1982). It appears from the record that

the immigration judge did not advise the respondent of the availability of such programs at the opening of his hearing. Nonetheless, the immigration judge was able to ascertain that the respondent had already been informed of the availability of a free legal

services program: the immigration judge had before him, as an exhibit, the Order to Show Cause which had been served upon the

respondent and to which was attached a Written Notice of Appeal

Rights (Form 1-618) informing the respondent of the existence and

address of Legal Aid. Under these circumstances, it is clear that

the respondent was given notice, before his deportation hearing, of

the availability of a free legal services program and thus was not

prejudiced by the immigration judge's failure to advise him of that

program at the start of the hearing. Since the immigration judge's

failure to comply fully with 8 C.F.R. § 242.16(a) (1982) was a procedural defect which did not prejudice the respondent, it did not

amount to a violation of due process. See Tejeda-Mata v. INS,

supra, at 727; Ka Fung Chan v. INS, supra, at 258.

The respondent's final procedural objection is that he was not

given sufficient notice of his deportation hearing, in violation of 8

C.F.R. § 242.1(b) (1982) and the requirements of due process. The

regulation cited by the respondent provides that an alien shall be

notified of the time and place of his deportation hearing not less

than 7 days before the hearing date, unless the Service believes

that the public interest, safety, or security requires shorter notice,

or unless the alien requests shorter notice- 8 C.F.R. § 242.1(b)

(1982). The Service complied fully with this regulation in the respondent's case because the district director found the public inter-

est required the respondent to undergo an immediate hearing and

issued a written notification to that effect.

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Moreover, the district director's decision to issue the notice appears to have been reasonable. Both of the parties' briefs on appeal

agree that the respondent's deportation hearing was held without

the standard 7 days' notice because Alaska did not have a full-time

immigration judge at the time of the respondent's arrest; rather,

an immigration judge traveled from Seattle, Washington, to spend

a few days in Anchorage, Alaska, on a quarterly visit to the city.

The Service has argued that the district director believed it to be in

the public interest to schedule an immediate hearing because the

respondent was unable to raise money for bond and the Service

was faced with the dilemma of holding a hearing on short notice,

or keeping the respondent in detention, at public expense, until the

immigration judge returned to Alaska. It was not unreasonable for

the district director to conclude that it would be in the public interest to avoid the costs of detaining the respondent at public expense

until the immigration judge returned to Anchorage, for this is a

time in which our nation is faced not only with immigration costs

that are rising at an alarming rate but also with a staggering federal budget deficit. See generally, Lopez-Mendoza v. INS, 705 F.2d

1059, 1091-92 (9th Cir. 1983) (Alarcon, J., Wright, J., Wallace, J.,

and Poole, J., dissenting). Nor was it unreasonable for the respondent to be required to face a deportation hearing on short notice: the

charge that he was deportable as an overstay was capable of resolution by the mere fact of his presence in this country beyond his

authorized time and was not subject to any defenses which would

require expertise in immigration law. In addition, the respondent

had the opportunity, which he exercised, of seeking a continuance

of his hearing. See 8 C.F.R. § 242.13 (1982).

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 evidence 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 process. 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

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able to extend his time in this country by virtue of this appeal. See

8 C.F.R. § 3.6(a) (1984). Generally, when we dismiss an alien's

appeal, we reinstate the immigration judge's grant of voluntary departure if that grant is less than 30 days. Matter of Chouliaris, 16

I&N Dec. 168 (BIA 1977). In the respondent's case, however, we will

modify the immigration judge's order and grant the respondent 15

days for voluntary departure in order to give him more time to prepare for departure.°

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.

The respondent has submitted various letters and documents to us on appeal

which attest to the validity of a marriage between him and a woman identified

solely as Shirley Santos. It appears from the notice attached to these exhibits that

the respondent may be seeking to challenge the district director's failure to act

upon a visa petition which he alleges was filed on January 28, 1983. Initial action on

such a visa petition is a matter solely within the jurisdiction of the Service, not the

Board. See 8 C.F.R. § 204.1(a) (1984). Since we have no explanation or motion before

us regarding these documents and no original jurisdiction to decide matters pertaining to a visa petition, we will return these documents to the attorney for the respondent

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