Petition — Aguilera-Enriquez v. Immigration & Naturalization Service
Supreme Court brief1976
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In the Supreme Court of the Unite States — “=
OCTOBER TERM, 1975
No. 75-488
JESUS AGUILERA-ENRIQUEZ,
Petitioner,
vs.
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT S. CATZ
HOWARD S. SCHER
BURTON D. WECHSLER
Urban Law Institute
Antioch School of Law
1624 Crescent Place, N.W.
Washington, D.C. 20009
(202) 265-9500
PHYLLIS A. REHA
RICHARD FEFERMAN
Michigan Migrant Legal
Assistance Project
120 North Michigan Avenue
Saginaw, Michigan 48601
(517) 792-7601
Counsel for Petitioner
PRIESMAN GRAPHICS
es ne aa cen du dée i ebeseus cabaed eked ue
RE Oe TE Oe Ee ee oe ee eee rer ee
Questions of Law Presented ................ccccceecceens
Constitutional and Statutory Provisions Involved ......
es or Cid neenanesalinseeds
Ns ik ids caidas ces cate babbdkec as tee
Reasons For Granting the Writ ............. ccc ceeeees
I. The Court of Appeals has decided federal
questions in a manner that conflicts with applicable
decisions of this Court and other Courts of Appeals
A. The Decision of the Court of Appeals Does
Not Follow the Principles Set Out by this Court in
Gagnon v. Scarpelli, 411 U.S. 778 (1973) .........
B. The Decision Below Conflicts with the
Decisions of other Courts of Appeals Regarding
the Right to Counsel in Deportation Proceedings
1. An indigent’s “right” to appointed
CUED 56 6.0 oie 6 cbccbercctdetencdcccccsessees:
2. The “right” predicated upon whether
counsel could have affected the deportation
GED ccccbivccccconccccnccncecevse sevegses’s
II. Due provess requires the appointment of
counsel at deportation proceedings .................
No i od on beans Soeneetdenss h4eetaeenneons
Appendices:
A. The Order of the Board of Immigration Appeals,
CI HINES. nc cccaccccands cecvcseooeeseseocsoces
11
12
14
17
ii
INDEX—Continued
Page
B. The Opinion of the United States Court of
APPOAls ...... ccc ccccccce renee ccrecccccccsccesecesess 32
C. The Order of the United States Court of Appeals
on petition for rehearing with suggestions for rehear-
im@ OM DARC ..... 2.2 c cee s cece ccececcccecrcescccsceeees 49
SE nana neeee tadusGes nds 604een eee oeeee 50
TABLE OF CASES
Ah Chiu Pang v. Immigration and Naturalization Serv-
ice, 368 F. 2d 637 (3rd Cir. 1966) ............-... eee 12
Aguilera-Enriquez v. Immigration and Naturalization
Service, 516 F. 2d 565 (6th Cir. 1975) ...... 9, 13, 14, 15, 16, 28
Argersinger v. Hamlin, 407 U.S. 25 (1972) .............-- 20, 27
In re B, 285 N.E. 2d 288 (N.Y. 1972) ...........- 2 cece eeees 22
Barthold v. Immigration and Naturalization Service, 517
DP, CN I, IED oven bcc ce webccccecednuctevesss 13, 28
Bell v. Burson, 402 U.S. 535 (1971) ...........5 5. cece eee 20
Bridges v. Wixon, 326 U.S. 136 (1945) ...............00es 7
Burquez v. Immigration and Naturalization Service, 513
A bf oS “PPPS TTT ee 12, 14
Cafeteria and Restaurant Workers Union v. McElroy, 367
OUD n.bnb nc ous ccccdnccvavesesesancetdcuenees 6
Chambers v. District Court. 152 N.W. 2d 402 (Ia. Sup. Ct.
PPP TT PTET CCT TT ite ee ei 22
Chlomos v. Immigration and Naturalization Service, 516
Af fe Se rere 7, 14,15
Cleaver v. Wilcox, 499 F. 2d 940 (9th Cir. 1974) ........ 11, 22, 24
Cruz-Sanchez v. Immigration & Naturalization Service,
fe & 4. 4 x, BO rrrrrrrrTTrri rrr ire 41
OR RTE Te RS OER
tt | ne A
2 ee et mw
ie el
Pe ~~
ated
iii
INDEX—Continued
Page
Danforth v. State Department of Health and Welfare, 303 A.
ee ee I I SE 0 ico cwccceeseseueceedevessss 23
Dixon v. Attorney General, 325 F. Supp. 966 (M.D. Pa. 1971) 21
Douglas v. California, 372 U.S. 352 (1963) ............... 26
Dunn-Marin v. Immigration and Naturalization Service,
Se ae ES SED vc dccccccccccdcesecesess: 12
In re Fisher, 313 N.E. 851 (Ohio Sup. Ct. 1974) ........... 21
Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) .............. 8
Gagnon v. Scarpelli, 411 U.S. 778 (1973)
eis teas a ie alate ea 3, 5, 6, 9, 10, 11, 15, 20, 21, 36, 44
Garcia-Gonzalez v. Immigration & Naturalization Scrv-
ice, 344 F. 2d 804, 808-09 (9th Cir.) cert. denied, 382 U.S.
OTT it 39
Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479 (1963) 36
Gutierrez-Rubio v. Immigration & Naturalization Serv-
ice, 453 F. 2d 1243 (10th Cir. 1972) ................... 39
ee a I eid cdusecccescceuevevee 19, 20
Gideon v. Wainwright, 372 U.S. 335 (1963) ............... 20, 27
Griffin v. Illinos, 351 U.S. 12 (1956) ...................55. 26
Harisiades v. Shaugnessey, 342 U.S. 580 (1952) ......... 26
Henriques v. Immigration and Naturalization Service, 465
F. 2d 119 (2nd Cir. 1972). cert. denied, 410 U.S. 968 ... 14, 38
Heryford v. Parker, 396 F. 2d 393 (10th Cir. 1968) ........ 21, 22
The Japanese Immigration Case, 189 U.S. 86 (1903) ..7, 12, 17, 36
Joint Anti-Fascist Refugee Committee v. McGrath, 341
eu dear ewesuees 6
INDEX—Continued
Page
Jordan v. DeGeorge, 341 U.S. 223 (1951) ................. 8
Kaufman v. Carter, 402 U.S. 954 (1971) (Black & Douglas, J.
So GRIT... 0 0 0 0h.60 6005 04.05 080 teehee eeeneeanee 27
Immigration and Naturalization Service v. Errico, 385
ae Os EP GED 0 cvcuns ucteuvsswsedesnedeneeenel 35
BD OD Fe, SSD Ge. Fen GP GOD ov odbc wccccvcutesessenes 22
In re Karren, 159 N.W. 2d 402 (Minn. Sup. Ct. 1968) 22
Lemaster v. Oakley, 203 S.E. 2d 140 (W. Va. Sup. Ct. 1974) 22
Lessar v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) ... 21
In re Luscier, 524 P. 2d 906 (Wash. Sup. Ct. 1974) ........ 22
Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974) (three-
DURE GUD oc cecesecseutdeddsteutssiaenseaueeeee 21
McLeod v. Peterson, 283 F. 2d 180 (3rd Cir. 1960) ........ 8
Madokoro v. Del Guercio, 160 F. 2d 164 (9th Cir. 1947) .. 14
Martin-Mendoza v. Immigration and Naturalization Serv-
ice, 499 F.2d 918 (9th Cir. 1974), cert. denied, 95 S. Ct. 789
GOED 66 ccccnccciescsne¢eenu peace eeueieeeene 12
Matter of Ibarra-Obando, 12 I. & N. Dec. 576 (1967) ...... 41
Matter of O'Sullivan. 10 I. & N. Dec. 320 (1963) .......... 41
Mestre-Morera v. Immigration and Naturalization Serv-
ice. 462 F. 2d 1030 (ist Cir. 1972) ................. 16
Mendoza-Rivera v. Del Guarcio, 161 F. Supp., 473 (S.D. Cal.
1958), aff'd Hoy v. Mendoza-Rivera, 267 F. 2d 451 (9th
OL No 30
Murgia-Melendrez v. Immigration and Naturalization
Service, 407 F. 2d 207 (9th Cir. 1969) ............... 12, 36, 44
INDEX—Continued
Page
My lius v. Uhl, 210 F. 2d 860 (2nd Cir. 1914) .............. 39
Ng Fung Ho v. White, 259 U.S. 276 (1922) ................ 8
O'Connor v. Matzdorf, 458 P. 2d 154 (Wash. Sup. Ct. 1969) 25
Pino v. Landon, 349 U.S. 901 (1955), rev'g Pino v. Nicolls,
215 F. 9d 237 (iat Cir. 1064) ........ 2. cece cneeeee. 40
Powell v. Alabama, 387 U.S. 45 (1932) ............ 20
Rassano v. Immigration and Naturalization Service, 377
F. 2d 971, 974 (7th Cir. 1967) ... 2.20... 6. e cee eens. 39
In re adoption of R.I., 312 A. 2d 601 (Pa. Sup. Ct. 1973) .. 22
Sawhow v. Immigration and Naturalization Service, 314
RONG MEDD cccccccccccccecesccccccccccccccs 41
Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953) 7,12
State v. Jamison, 444 P. 2d 15 (Ore. Sup. Ct. 1968) ....... 22
State v. Caha. 208 N.W. 2d 259 (Neb. Sup. ©t. 1973) ...... 22
Tupacyupanqui-Marin v. Immigration and Naturaliza-
tion Service, 447 F. 2d (7th Cir. 1971) .............. 12, 36, 44
U.S. ex rel. Freislinger v. Smith, 41 F.2d 707 (7th Cir.1930) 41, 42
United States ex rel. Brancato v. Lelmann, 239 F . 2d 663, 666
ee Five escctecccsecccesecess 35
United States v. Parrino, 212 F. 2d 919 (2d Cir. 1954) .... 8
Villanueva v. Immigration and Naturalization Service,
482 F. 2d 886 (Sth Cir. 1973) .... 2.6... ce ces 14, 38
Woodby v. Immigration and Naturalization Service, 385
aS | 36
Wong Yang Sung v. McGrath, 339 U.S. 333 (1950) ...... 7, 12, 36
vi
INDEX—Continued
Page
Will v. Immigration and Naturalization Service, 447 F. 2d
§ 7 tS aro ee ar ae ey 40
Williams v. Illinois. 399 U.S. 235 (1970) ................. 26
CONSTITUTIONAL AND STATUTORY PROVISIONS
United States Constitution, Amendment V ............. 3, 26, 50
United States Constitution, Amendment VI ............. 20
IES Sc nccc cs dandandeimaniolnaneiunaamaned 5, 34, 37
ID... . ccvcncudddudendicousaceesaeasaeee 23
IED co cu céevencacteuneubeensnen 3, 5, 17, 23, 26, 50
DEE 60 cc ccdéeccddbecenceeaseeseensnemenulannen 23
EE oddvinies ceanekaneusscsc. 0 sanueeeen 23
ED nitbaweskesidddsdetasadebetineiileiateas 3, 17, 26, 50
Ge WD cccccccscedsnadcessnssansienbhedntitias 30, 33, 37
Sr EY SED c.00cccdsoudeunnsetntedmnsibateidaans 2, 42
TEXTS CITED
1974 Annual Report: Immigration and Naturalization
EEE cvcccocucncbuctsacebes queceneadeettne - apceeess 27
Brisbois, Trumpets in the Corridors of Bureaucracy: A
Coming Right to Appointed Counsel, 18 U.C.L.A. L.
OU, TD vc scaiceats chu lhc oc bd a ca on 20
Catz & Kuelbs, The Requirement of Appointment of
Counsel! for Indigent Parents in Neglect or Termina-
tion Proceedings: A Developing Area, 13 J. Family
BI ED 66.66 dedceucieckd ads doeucetieeindietin 22
Child Neglect: Due Process for the Parent, 70 Colum. L.
Rev. 465 (1970) ....... bon cueeedbes cases ews cUiesees 22
vil
INDEX—Continued
Page
Gordon, Fight to Counsel in Immigration Proceedings, 45
Minn. L. Rev. 875 (1961) ..........- 6-6. cece eee eeees 24, 27, 36
Haney. Deportation and the Right to Counsel, 11 Harv.
Inter. L. J. 177 (1070) .. 2... cece eee eee e eee eweeeeenes 25
Indigent Access to Civil Courts: The Tiger is at the Gates.
26 Vand. L. Rev. 25 (1973) .......--- cece eee e eee eeees 20
Resident Aliens and Due Process: Anatomy of a Deporta-
tion, 8 Vill. L. Rev. 566 (1963) ..... © ©. cece eee 25
The Indigents Right to Counsel in Civil Cases, 76 Yale L. J.
TT Prrrrrrrrrrrr rrr rrr rer rr rrr etre 20
The Right to Counsel in Civil Litigation, 66 Colum. L. Rev. ™
GDBR (19BB) 2... ecw cece c cece cere rece cnnccceeeesees
—
in the Supreme Court of the United States
OCTOBER TERM, 1975
No. 75-488
JESUS AGUILERA-ENRIQUEZ,
Petitioner,
vs.
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner, JESUS AGUILERA-ENRIQUEZ, re-
spectfully prays that a writ of certiorari issue to
review the judgment of the United States Court of
Appeals for the Sixth Circuit entered in the above-
entitled case on May 7, 1975, petition for reheaiing
with suggestion for rehearing en banc denied on
July 2, 1975.
2
OPINIONS BELOW
The order of the Board of Immigration Appeals,
Washington, D.C. entered the ist of February, 1974, is
set forth in Appendix A.
The opinion of the Court of Appeals and the
dissenting opinion of DeMascio, J., reported at 516 F.
2d 565 (6th Cir. 1975), is attached to this petition as
Appendix B. The order of the Court of Appeals, on
petition for rehearing with suggestion for rehearing
en banc is attached as Appendix C.
JURISDICTION
The judgment of the Court of Appeals was
entered on May 7, 1975. A timely petition for
rehearing with suggestion for en banc consideration
was denied by the lower court on July 2, 1975. This
petition was filed within ninety days of that date.
This Court’s jurisdiction is invoked under 28 U.S.C.
§1254(1).
QUESTIONS OF LAW PRESENTED
i. Whether the denial of the “right to counsel” in a
deportation proceeding, be it a constitutional or
statutory “right”, violates due process if the
“right” depends upon whether the initial assist-
ance of counsel could have affected the deporta-
tion outcome?
2. Whether the due process clause of the Fifth
Amendment requires the government to appoint
counsel for indigent resident aliens at deporta-
3
tion proceedings whenever the basis for deporta-
tion is other than illegal entry?
3. Whether che Court of Appeals properly applied
the due process standards for appointed covnsel
in the deportation context as enunciated by this
Court in probation revocation hearings in Gag-
non v. Scarpelli, 411 U.S. 778 (1973)?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The following constitutional and statutory pro-
visions involved in this case are set.forth in
Appendix D:
1) U.S. Constitution, Amendment V.
2) 8 U.S.C. §1252(b)(2).
3) 8 U.S.C. §1362.
STATEMENT OF THE CASE
This petition involves the application of the due
process clause of the Fifth Amendment of the United
States Constitution to lawful resident aliens subject
to deportation proceedings under the Immigration
and Nationality, Act. Specifically, petitioner asserts
that in deportation proceedings counsel must be
appointed for indigents at government expense. It is
maintained that the rights and interests of resident
aliens at deportation proceedings are such that due
process of law mandates the appointment of counsel
since the proceedings involve an aspect of personal
liberty, have consequences grave and lasting to the
4
alien, pit the vast resources of the federal govern-
ment against the individual, and involve legal issues
and questions of great complexity.
Petitioner, a forty year old native and citizen of
Mexico, has resided in the United States since
December 18, 1967, when he was lawfully admitted
for permanent residence. He is a married farmwork-
er, living with his wife and three daughters, citizens
of the United States, in Saginaw, Michigan.
On April 12, 1972, petitioner, an indigent, was
brought before the United States District Court for
the Western District of Texas on charges, under 21
U.S.C. §844(a), of possession of cocaine. Participat-
ing through an interpreter, petitioner made an effort
to explain the circumstances surrounding the inci-
dent giving rise to the charges, but was interrupted
by the court and by his own court appointed counsel.
Never clearly admitting the facts constituting the
offense charged, petitioner was found guilty by the
court. At no time was petitioner told, either by court
or counsel, that his conviction would subsequently
lead to his deportation. Nonetheless, a plea of guilty
was entered. A sentence of imprisonment was
suspended, and petitioner was placed on five years’
probation on condition that a fine of $3,000 be paid at
the rate of $50 per month.
Thereafter, petitioner returned to his residence
in Saginaw, Michigan where, beginning June 1, 1972,
he regularly paid each monthly installment of his
fine and met other conditions of probation.
Se an Ree ERE FNP ORI
ee 8 Speen ne
5
On December 7, 1972, the Immigration and
Naturalization Service in Detroit served petitioner
with an Order To Show Cause why he should not be
deported under section 242 of the Immigration and
Nationality Act, 8 U.S.C. §1252, because of his
conviction for possession of cocaine. On February 6,
1973 he appeared without counsel before an Immi-
gration Law Judge and requested appointed counsel
which was summarily denied. At the time he had not
yet obtained counsel to investigate the possibility of
challenging the Texas conviction. On the basis of
that hearing, he was ordered deported under 8 U.S.C.
§1251i(a)(11).
Shortly thereafter, petitioner engaged Michigan
counsel. On February 12, 1973, petitioner appealed to
the Board of Immigration Appeals, stating that the
“validity” of the Texas conviction was being chal-
lenged.
On March 1, 1973, the entire record of the
proceedings was forwarded from the Service office
in Detroit to the Board of Immigration Appeals,
Washington, D.C. On February 1, 1974, the Board of
Immigration Appeals issued an Order dismissing
the Appeal. Petitioner then appealed this decision.
On May 7, 1975, a divided panel of the Court of
Appeals for the Sixth Circuit held that the due
process clause of the Fifth Amendment requires
appointment of counsel to indigent resident aliens in
deportation proceedings under this Court’s rationale
set forth in Gagnon v. Scarpelli, 411 U.S. 778 (1973).
However, the majority opinion found against the
6
petitioner by predicating the “right to counsel” upon
whether appointei counsel could have affected the
outcome of the deportation proceeding. Judge De-
Mascio dissented against this latter holding. A
petition for rehearing with suggestion for rehearing
en banc was timely filed, and denied on July 2, 1975.
This timely petition for writ of certiorari seeks
review from the Court of Appeal’s decision “qualify-
ing” an indigent’s right to appointed counsel at
government expense under the due process clause of
the Fifth Amendment in a deportation proceeding.
PRELIMINARY STATEMENT
Petitioner’s claim is that the due process clause
of the Fifth Amendment requires that in a deporta-
tion hearing an indigent resident alien must have
counsel appointed at government expense in order
that the proceeding meet with “fundamental fairness
— the touchstone of due process.” Gagnon v.
Scarpelli, 411 U.S. 778, 790 (1973). The extent to
which procedural due process must be afforded an
individual is dependent upon the extent to which
that person may be “condemned to suffer aggrieved
loss," Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J.,
concurring). Due process also depends upon whether
the individual's interest in avoiding that loss
outweighs the governmental interest in summary
adjudication. Accordingly, in Cafeteria and Restau-
rant Workers Union v. McElroy, 367 U.S. 886, 895
(1961) this Court stated that, “consideration of what
procedures due process may require under any
given set of circumstances must begin with a
7
determination of the precise nature of the govern-
ment function involved as well as the private
interest that has been affected by governmental
action.”
At stake in the present case, is the governmental
interest in its administration of deportation proce-
dures and immigration laws in general — together,
perhaps, with an interest in having unencumbered
proceedings, summary in nature-versus the individ-
ual’s interest in protecting his or her vested right to
remain in the country. Nevertheless, the govern-
ment’s interest as stated above must yield to the
principle that an alien subjected to deportation
proceedings is entitled to due process of law. The
Japanese Immigration Case, 189 U.S. 86 (1903); Wong
Yang Sung v. McGrath, 339 U.S. 333 (1950); Shaugh-
nessy v. United States ex Rel. Mezei, 345 U.S. 206
(1953) and the cases cited therein; and Chlomos v.
Immigration and Naturalization Service, 516 F. 2d
310 (3d Cir. 1975). Historically, the due process
requirement in deportation proceedings has been
predicated, at the least, on the grave and lasting
consequences of deportation. Thus Bridges v. Wixon,
326 U.S. 136, 154 (1945) asserted that:
Though deportation is not technically a
criminal proceeding, it visits a great hardship
on the individual and deprives him of the right to
stay and live and work in this land of freedom.
That deportation is a penalty — at times a most
serious one — cannot be doubted. Meticulous
care must be exercised lest the procedure by
which he is deprived of that liberty not meet the
essential standards of fairness.
8
In Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) the
Court noted that “deportation is a drastic measure
and at times the equivalent of banishment or exile
... [citation omitted]. It is the forfeiture for miscon-
duct of a residence in this country. Such a forfeiture
is a penalty.” Mr. Justice Jackson dissenting in
Jordan v. De George, 341 U.S. 223, 231 (1951)
compared deportation to “punishment with a life
sentence of banishment.” In McLeod v. Peterson, 283
F. 2d 180, 183 (3rd Cir. 1960), the court noted that
when dealing in cases involving the status of an
alien, “we are dealing with an especially critical and
fundamental individual right.” In citing both Fong
Haw Tan v. Phelan, and Jordan v. De George, Judge
Frank dissenting in U.S. v. Parrino, 212 F. 2d 919, 924
(2d Cir. 1954) stated that “[dJeportation, while not
literally constituting criminal punishment, may
have far more dire effects than ... [a] sentence of
imprisonment.”
Finally, in Ng Fung Ho v. White, 259 U.S. 276, 284
(1922) the Court characterized deportation as a
“...loss of both property and life, or of all that
makes life worth living...”
Ultimately, the issue is whether the governmen-
tal interest in the administration of deportation
proceedings can ever outweigh an individual’s right
to counsel to protect his or her immigration status
where such status has been termed a “critical and
fundamental individual right” and where deporta-
tion has been recognized to be a “penalty.” a “drastic
measure,” “a life sentence of banishment,” and a
tp ARR 8 ere.
9
procedure which “may have far more dire effects”
than a sentence of imprisonment. Petitioner respect-
fully submits that his individual interest in protect-
ing his immigration status and the serious and
complex nature of deportation procedures requires
the appointment of counsel at deportation proceed-
ings.
REASONS FOR GRANTING THE WRIT
I. The Court of Appeals has decided federal
questions in a manner that conflicts with
applicable decisions of this Court and other
Courts of Appeals
A. The Decision of the Court of Appeals Does
Not Follow the Principles Set Out by this
Court in Gagnon v. Scarpelli, 411 U.S. 778
(1973).
The principle of the case-by-case method of
appointment of counsel enunciated in Gagnon v.
Scarpelli, 411 U.S. 778 (1973)! was adopted by the
Enriquez majority as applicable to the appointment
of counsel for an indigent resident alien in the
deportation context. However, the majority failed to
articulate standards to provide direction to iinmigra-
1 Gagnon v. Scarpelli, 411 U.S. 778 (1973), stated that the state
was not under a constitutional duty to provide counsel for
indigents in all probation revocation cases, but that the
decision as to the need for counsel must be made on a case-
by-case basis in the exercise of a sound discretion by the
state authority charged with responsibility for administer-
ing the probation system, and that certain general guide-
lines as to whether the assistance of counsel was
constitutionally necessary should be applied in the first
instance by those charged with conducting the revocation
hearing.
10
tion judges at the initial deportation hearing as to
when counsel should be appointed. This failure to
articulate standards stands in stark contrast to this
Court's decision in Gagnon where the Court pro-
posed certain general standards as guidelines for
determining the propriety of appointing counsel in
probation revocation hearings. In Gagnon the Court
directed that counsel be appointed at least where a
timely request was based on a colorable claim either
that the violation did not occur or that, if said
violation did occur, justifying and mitigating cir-
cumstances existed. Moreover, if the responsible
agency, in passing on the request, determined that
the person brought before the agency was incapable
of speaking effectively for himself, counsel should
be appointed. 411 U.S. at 791-92.
In addition, an integral aspect of such guidelines
requires that whenever a request for counsel is
denied the reasons for the refusal be stated in the
record of the proceedings. Gagnon, in remanding the
appointment of counsel question, demanded no less:
In every case in which a request for counsel
at a preliminary or final hearing is refused, the
grounds for refusal should be stated distinctly in
the record. 411 U.S. at 791.
Once the standards are enunciated, the court should
remand the question of the need for counsel to the
original forum. Because it enunciated no standards,
the Sixth Circuit failed to remand the question of the
need for counsel to the Immigration Judge. Petition-
er points out that even though the Gagnon Court was
fairly convinced that the probationer, Scarpelli, had
11
not been denied due process, the Court still re-
manded the question of Scarpelli’s need for assist-
ance of counsel.2 The approach suggested here by
petitioner was adopted by the court in Cleaver v.
Wilcox, 499 F. 2d 940, 945 (9th Cir. 1974),° when
applying Gagnon, it held that the due process clause
requires that indigent parents faced with civil
proceedings to terminate their parental rights must
have counsel appointed at government expense.
Accordingly, petitioner requests that this Court
grant certiorari at the least to review the Sixth
Circuit's failure to set forth standards that should
apply to the appointment of counsel at deportation
proceedings. Failure to set forth such standards
piaces the Sixth Circuit's view of due process in
direct conflict with the principles enunciated by this
Court in Gagnon v. Scarpelli, supra.
B. The Decision Below Conflicts With The
Decisions Of Other Courts Of Appeals
ed
2. The Court's skepticism about Scarpelli’s need for counsel
was stated as follows:
As to whether the state must provide counsel,
respondent's admission to having committed another
serious crime creates the very sort of situation in which
counsel need not ordinarily be provided. 411 U.S. at 791.
3 “Parents are entitled to a judicial decision on the right to
counsel in each case. The determination should be made with
the understanding that due process requires the state to
appoint counsel whenever an indigent parent. unable to
present his or her case properly. faces a substantial
possibility of the loss of custody or of prolonged separation
from a child.” (footnote omitted). Jd. at 945.
12
Regarding The Right To Counsel In Deporta-
tion Proceedings.
1. An indigent’s “right” to appointed coun-
sel.
It is uncontroverted that an alien subject to
deportation proceedings is entitled to due process of
law. The Japanese Immigration Case, supra;
Shaughnessy v. U.S. ex rel. Mezei, supra; and Wong
Yang Sung v. McGrath, supra. However, on the basis
of conflicting decisions of Courts of Appeals, it is
now unclear whether due process in the deportation
context requires the appointment of counsel to a
lawful resident alien who cannot afford to hire
counsel of his choice. Decisions such as Tupacyu-
panqui-Marin v. Immigration and Naturalization
Service, 447 F. 2d (7th Cir. 1971); Ah Chiu Pang v.
Immigration Naturalization Service, 368 F. 2d 637
(3rd Cir. 1966); Murgia-Melendrez v. Immigration
and Naturalizaticn Service, 407 F. 2d 207 (9th Cir.
1969); Dunn-Marin v. Immigration and Naturaliza-
tion Service, 426 F. 2d 894 (9th Cir. 1970); Martin-
Mendoza v. Immigration and Naturalization, 499 F.
2d 918 (9th Cir. 1974), cert. denied, 95 S. Ct. 789 (1974),
and Burquez v. Immigration and Naturalization
Service, 513 F. 2d 751 (10th Cir. 1975), all reject the
argument that due process requires appointment of
counsel for indigents subject to deportation. In
contrast, the Sixth Circuit here, in a first impression
holding adopts a “qualified” right to counsel:
The Supreme Court holdings in Gagnon,
Morrissey v. Brewer, 408 U.S. 471 (1972), and In
re Gault, 387, have undermined the position that
eee
13
counsel must be provided to indigents only in
criminal proceedings. Decisions such as
Tupacyupanqui-Marin v. Immigration and Natu-
ralization Service, 407 F. 2d 207 (9th Cir. 1969),
which contain dictum appearing to set forth a
per se rule against providing counsel to indigent
aliens facing deportation, rested largely on the
outmoded distinction between criminal cases
(where the Sixth Amendment guarantees indi-
gents appointed counsel) and civil proceedings
(where the Fifth Amendment applies). Where an
unrepresented indigent alien would require
counsel to present his position adequately to an
immigration judge, he must be provided with a
lawyer at the Government's expense. Otherwise,
“fundamental fairness” would be violated. (Em-
phasis added.) 516 F. 2d at 568-69 n. 3.
See also Judge DeMascio’s dissent in Enriquez, Id. at
571-74.
The majority holding in Enriquez was recently
adopted by the Fifth Circuit in Barthold v. Immigra-
tion and Naturalization Service, 517 F. 2d 689, 690
(5th Cir. 1975):
It is clear that any right an alien may have
in this regard is grounded in the Fifth Amend-
ment guarantee of due process rather than the
Sixth Amendment right to counsel. Aguilera-En-
riquez v. INS (citations omitted) ... therefore,
we analyze the proceedings in terms of their
fundamental fairness on a case-by-case basis.
Thus, the position of the Sixth Circuit here and
that of the Fifth Circuit conflicts with applicable
decisions of the Third, Seventh, Ninth and Tenth
Circuits regarding appointed counsel! in the deporta-
tion context.
14
2. The “right” predicated upon whether
counsel could have affected the deporta-
tion outcome.
While the Enriquez Court unanimously recog-
nized an indigent alien’s right under the due process
clause to counsel at government expense in a
deportation proceeding, the majority opinion ex-
pressly predicated the “right” upon whether the
assistance of counsel could have affected the depor-
tation outcome. 516 F. 2d at 569. This position is
shared by several Court of Appeals. Henriques v.
Immigration and Naturalization Service, 465 F. 2d
119, 120-21 (2nd Cir. 1972) cert. denied, 410 U.S. 968;
Villaneuva v. Immigration and Naturalization Serv-
ice, 482 F. 2d 886, 888 (5th Cir. 1973) and Madokoro v.
Del Guercio, 160 F. 2d 164 (9th Cir. 1947); Burquez v.
Immigration and Naturalization Service, supra.
These decisions hold that the fact that an alien is
without assistance of counsel at a deportation
proceeding is not considered a denial of due process
unless the alien can show he was prejudiced by the
absence of counsel.
In contrast to the Circuit opinions above,
Chlomos v. INS, 516 F. 2d 310 (3rd Cir. 1975), rejects
the proposition that due process requires the
assistance of counsel only when counsel can affect
the outcome of the deportation proceeding. Specifi-
cally. the court stated that it had misgivings with the
following holding in Henriques v. INS, supra:
‘Thus counsel, even if furnished, could not
have obtained any other result in the administra-
15
tive proceedings ... no prejudice can be said to
have resulted from the absence of counsel. This
being true, the hearing below was not invalid.’
{citations omitted] Chlomos at 314.
Careful scrutiny of the various Circuit positions,
shows Chlomos to be consistent with the approach
adopted by this Court in Gagnon. The due process
standard adopted by this Court in Gagnon for
appointment of counsel for indigents in probation
revocation proceedings requires an examination of
the viability of the charge against the probationer as
well as examination of the probationer’s ability to
speak effectively for himself. Gagnon was not
concerned with and did not promulgate the could-
counsel-affect-the-outcome criterion created by the
Enriquez majority and the cases relied upon. In the
present case, Gagnon would require the appointment
of counsel (the petitioner was unable to speak
English) even though the Sixth Circuit found that
appointed counsel could not affect the outcome of the
deportation proceeding. In the deportation context,
Chlomos comports with Gagnon while the decision
below and others cited conflict with Gagnon and
Chlomos. Moreover, the Enriquez majority and the
conflicting decisions ignore the fact that while the
grounds for deportation might be unassailable,
deportation might be avoided if counsel skilled in
deportation matters were available for consultation.
For example, an inarticulate and unschooled resi-
dent alien could be deported as the result of a
conviction which an attorney could have shown
lacked the degree of finality to support the deporta-
16
tion. Dissenting in Enriquez Judge DeMascio
underscores petitioner’s basic disagreement with the
majority's holding:
The court today has fashioned a test to
resolve whether a respondent alien’s due process
right requires appointment of counsel. That test
is whether “... in a given case, the assistance of
counsel would be necessary to provide ‘funda-
mental fairness’ — the touchstone of due pro-
cess.’ Gagnon, supra. The majority concludes
that lack of counsel before the immigration
judge did not prevent full consideration of
petitioner's sole argument and no different result
would have been obtained had counsel been
appointed. Accordingly, the court holds the
hearing was fundamentally fair. These conclu-
sions are reached by second suessing the record
— a record made without petitioner’s meaningful
participation.
In my view, the absence of counsel at
respondent's hearing before the immigration
judge inherently denied him fundamental fair-
ness. Moreover, I do not believe that we should
make the initial determination that counsel is
unnecessary; or that lack of counsel did not
prevent full administrative consideration of
4 Indeed, in Mestre-Morera v. U.S. Immigration and Naturaliz-
ation Service, 462 F. 2d 1030 (ist Cir. 1972) the court held that
an alien Ccouid uot be deported on the basis of a narcotics
conviction after receipt of a certificate that his conviction
had been expunged pursuant to the Youth Correction Act 18
U.S.C. §5021. The concept of finality of conviction for
purposes of deportation is complex both in concept and
articulation and no doubt would require the assistance of
counsel to properly articulate. Therefore, it is one not likely
to be readily noticed by an immigration judge at a
deportation proceeding unless fully articulated and devel-
oped in the record.
17
petitioner’s argument; or that counsel could not
have obtained a different administrative result.
We should not speculate at this stage what
contentions appointed counsel could have raised
before the immigration judge. (Footnotes omit-
ted.) 516 F. 2d at 573.
In view of the conflict of decisions among the
several Courts of Appeals regarding the “right to
counsel” in the deportation context, review by this
Court is necessary to resolve the differences in a
proceeding that by its very nature requires national
standards. The manner in which a particular depor-
tation proceeding is conducted regarding appoint-
ment of counsel under the Immigration and
Nationality Act should not be dependent on the
Circuit in which the resident alien happens to reside
at the time a deportation proceeding commences.
II. Due Process Requires the Appointment of
Counsel at Deportation Proceedings.
As pointed out in The Japanese Immigrant Case,
supra, and cases cited in connection herewith, an
alien within the United States, unlike one applying
for entry at the border, is e titled to the full benefits
of procedural due process «inder the aegis of the
Fifth Amendment. Thus, basically, expulsion or
deportation can be ordered only in accordance with
law and after a fair hearing. Requirements of a fair
hearing as applied to deportation cases have been
set forth in the Immigration and Nationality Act.
In 8 U.S.C. §1252(b)(2) and 8 U.S.C. §1362 Con-
gress noted the complexity of deportation proceed-
18
ings and the severe deprivation caused by either
exclusion or deportation and provided that an alien
has the right “of being represented (at no expense to
the Government) by such counsel ... as he shall
choose.” These sections unconstitutionally limit the
right to counsel and deprive indigent aliens in
deportation proceedings of due process for the
following reasons:
1. A basic and fundamental aspect of personal
liberty is at stake in a deportation proceed-
ing, and the consequences to the deportee
can be grave and lasting.
2. The right to counsel at government expense
is required notwithstanding the denomina-
tion of the deportation proceeding as “civil”
and “administrative” in nature.
3. At a proceeding, where an indigent alien
stands accused by the Federal government
possessing substantial and investigative
resources, while an indigent alien has none
—- the petitioner and inhibits the
ruth.
4. A deportation proceeding can be exceedingly
complex and an alien, particularly one not
fluent in the English language, cannot ade-
quately understand and meet the charges.
This Court, noting that juvenile proceedings are
labeled “civil,” rather than “criminal,” disregarded
the traditional labels5 and held with resrect to an
accused delinquent’s right to counsel that:
5 The “criminal — civil” dichotomy concerned Judge DeMas-
cio in his dissent:
19
[T]he Due Process Clause... requires that in
respect to proceedings to determine delinquency
which may result in commitment to an institu-
tion in which the juvenile’s freedom is curtailed,
the child and his parents must be notified of the
child’s right to be represented by counsel
retained by them, or if they are unable to afford
counsel be appointed to represent the child.
(Emphasis added.) In re Gault, 387 U.S. 1, 141
(1967).
Gault advances the principle that the interest at
stake and the effect of its loss are constitutionally
relevant. Whether that interest or the proceeding to
terminate that interest be denominated civil or
criminal is not relevant. The penalty of deportation
is as severe as an adjudication ordering a juvenile,
for his own welfare, to be made a ward of the court:
This is but an application of the general
proposition that relevant constitutional re-
(Footnote 5 continued)
A deportation proceeding so jeopardizes a resident
alien’s basic and fundamental right to personal liberty
that I cannot agree due process is guaranteed by a
“fundamental fairness” analysis on a case-by-case basis.
(Citation omitted.) I think a resident alien has an
unqualified right to the appointment of counsel. (Cit-
ations omitted.) When the government, with plenary
power to exclude, agrees to allow an alien lawful
residence, it is unconscionable for the government to
unilaterally terminate that agreement without affording
an indigent resident alien assistance of appointed
counsel. Expulsion is such lasting punishment that
meaningful due process can require no less. Assuredly,
it inflicts punishment as grave as the institutionaliza-
tion which may follow an In re Gault finding of
delinquency. A resident alien's right to due process
should not be tempered by a classification of the
deportation as “civil,” “criminal,” or “administrative.”
No matter the classification, deportation is punishment,
pure and simple. (Emphasis added.) 516 F. 2d at 572.
20
straints limit state power to terminate an entitle-
ment whether the entitlement is denominated a
“right” or a “privilege.” Bell v. Burson, 402 U.S.
535, 539 (1971)
To date, this Court has held an indigent to be
entitled to counsel in all proceedings where liberty
is at stake, even if potential confinement is as short
as one day. Powell v. Alabama, 387 U.S. 45 (1932)
(States must provide appointed counsel in capital
offense cases); Gideon v. Wainwright, 372 U.S. 335
(1963) (States must provide appointed counsel in
non-capital serious crime cases); In re Gault, supra
(States must provide appointed counsel in juvenile
proceedings that might result in institutionaliza-
tion); Argersinger v. Hamlin, 407 U.S. 25 (1973)
(Right to appointed counsel exists in all non-serious
criminal cases that might result in incarceration);
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (Right to
appointed counsel exists in probation revocation
hearings). :
The right to counsel under the Due Process
Clause in so-called “civil” cases rather than under
the Sixth Amendment is a developing area of law
which is relevant to this Court’s determination of
this petition. In extending the right to appointed
counsel at government expense in administrative
probation revocation hearings, this Court held:
6 See generally, Note. The Indigents Right to Counsel in Civil
Cases. 76 Yale L.J. 545 (1967); Brisbois, Trumpets in the
Corridors of Bureaucracy: A Coming Right to Appointed
Counsel in Administrative Adjudicate Proceedings, 18
U.C.L.A. L. Rev. 758 (1970); Note, The Right to Counsel! in
Civil Litigation, 66 Colum. L. Rev. 1322 (1966); Comment,
Indigent Access to Civil Courts: The Tiger is at the Gates, 26
Vand. L. Rev. 25 (1973).
21
[W]e think it is sufficient answer that we deal
here not with the right of an accused to counsel
in a criminal prosecution, but with the more
limited due process right of one who is a
probationer or parolee only because he has been
convicted of a crime. (Emphasis added.) Gagnon
v. Scarpelli, supra at 789.
An increasing number of inferior courts recog-
nize a constitutional mandate under the Due Process
Clause to provide counsel to indigents in civil cases
when the four criteria previously enumerated are
present.
In Heryford v. Parker, 396 F. 2d 393 (10th Cir.
1968) the court extended the right to appointed
counsel in mental commitment proceedings under
the Due Process Clause:’
It matters not whether the proceedings be
labelled “civil” or “criminal” or whether the —
subject matter be mental instability or juvenile
delinquency. It is the likelihood of involuntary
incarceration — whether for punishment as an
adult for a crime, rehabilitation as a juvenile for
delinquency or treatment as a feebleminded or
mental incompetent — which commands obser-
vance of the constitutional safeguards of due
process. Where as in both proceedings for
juveniles and mentally deficient persons ... it
has the inescapable duty to vouchsafe due
7 See also, In re Fisher, 313 N.E. 2d 851 (Ohio Sup. Ct. 1974);
Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974) (three-
judge court); Lessor v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.
1972); Dixon v. Attorney General, 325 F. Supp. 966 (M.D. Pa.
i971).
22
process, and this necessarily includes the duty to
see that a subject of an involuntary commitment
proceedings is afforded the opportunity to the
guiding hand of legal counsel at every step of the
proceedings, unless effectively waived by one
authorized to act in his behalf. 396 F. 2d at 396.
The Heryford decision is followed by a number
of courts recognizing an indigent parent’s right to
counsel under the Due Process Clause whenever
parental rights may be terminated in “civil” neglect
proceedings. In State v. Jamison, 444 P. 2d 15 (1968)
the Oregon Supreme Court describes the impact of
neglect proceedings:
The permanent termination of parental
rights is one of the most drastic actions the state
can take against its inhabitants. It would be
unconscionable for the State forever to terminate
the parental rights of the poor without allowing
such parents to be assisted by counsel. Counsel
in juvenile court must be made available for
parents and children alike when the relationship
of parent is threatened by the State. 444 P. 2d at
17.8
Cal. Rptr. 209 (1972); State v. Caha, 208 N.W. 2d 259 (Neb. Sup.
Ct. 1973); Cleaver v. Wilcox, 499 F. 2d 940 .
Danforth v. State Department of Health and Welfare, 303 A.
2d 794 (Me. Sup. Ct. 1973); and Lemaster v. Oakley, 203 S.E.
2d 140 (W. Va. Sup. Ct. 1974); In re Luscier, 524 P. 2d 906
(Wash. Sup. Ct. 1974); In re Adoption of R.I., 312 A. 2d 601 (Pa.
Sup. Ct. 1973). See generally, Note, Child Neglect: Due
Process for the Parent, 70 Colum. L. Rev. 465 (1970); Catz &
Kuelbs, The Requirement of Appointment of Counsel for
Indigent Parents in Neglect or Termination Proceedings: A
Developing Area, 13 J. of Family Law 223 (1973).
23
Not unlike a neglect proceeding, a deportation
may result in a subsequent criminal proceeding. For
example, if the Federal government proves a case
for violations of 8 U.S.C. 1251(a)(13) (a ground for
deportation) it has in all likelihood proven its case
for a violation of 8 U.S.C. 1324 (a felony). In the
former case, the penalty is deportation, and in the
latter it is a fine of $2,000 or imprisonment. The
impact on possible self-incrimination is not difficult
to assess. At a minimum aliens require the guiding
hand of skilled counsel to steer between the Scylia of
a deportation finding for invoking the Fifth Amend-
ment privilege prematurely and not responding to
questions and the Charybdis of waiving the Fifth
Amendment by invoking it too late and providing
obviously incriminating answers. The alien's expo-
sure to possible self-incrimination and criminal
prosecution can occur because .0e operative acts
used to determine grounds for deportation may also
support a criminal charge against the alien.®
One court, in holding that the Due Process
- Clause required appointment of counsel in parental
neglect proceedings was particularly concerned
with the imbalance of the resources of the parties
involved in the proceedings:
{W]hether the proceeding be labelled “civil”
or “criminal,” it is fundamentally unfair, and a
denial of due process of law for the state to seek
removal of the child from an indigent parent
9 Not unlike the criminal process, aliens are subject to arrest
and incarceration during the pendency of deportation
proceedings. A common practice is to require an alien to
post an immigration bond to insure presence at the show
cause hearing. 8 U.S.C. §§1252, 1357.
24
without according that parent the right to the
assistance of court appointed and compensated
counsel ... Since the State is the adversary ...
there is a gross inherent imbalance of experi-
ence and expertise between the parties if the
parents are not represented by counsel ... Such
an interest may not be curtailed by the state
without a meaningful opportunity to be heard,
which in these circumstances includes the
assistance of counsel. (Emphasis added.) Cleaver
v. Wilcox, 40 U.S.L.W. 2658, 2659 (N.D. Cal. 1972),
aff'd 499 F. 2d 940 (9th Cir. 1974).
Petitioner submits that among the clearest cases
of potential injustice in the civil process are those
which are brought by government against
unrepresentative indigents; whether the govern-
ment acts as tax collector, condemnor, landlord, as
parens patriae, or enforcer of immigration laws. The
indigent, unable because of his poverty to present
the case properly, is overborne by lawyers and liti-
gative resources paid out of the public treasury.
Here petitioner is confronted with the vast and in-
finite resources of the U.S. Justice Department.
This gross imbalance is magnified when viewed
with the fact that petitioner is unable to speak
English and never completed a secondary educa-
tion.!° The Washington Supreme Court described the
10 Several commentators have also recognized that counsel is
needed for fairness in a deportation proceeding. Gordon,
Right to Counsel in Immigration Proceedings, 45 Minn. L.
Rev. 875 (1961):
“The persons involved in immigration proceedings
usually are aliens, and generally they are a less
privileged economic class. Often they are at the thresh-
old of our Country, or have recently arrived, and they
have little or no comprehension of our language or
institutions. The cases affecting these individuals some-
25
plight of the poor when faced with judicial proceed-
ings:
Not only do they [the poor] not know what
remedies exist for wrongs done them and not
only are they ignorant of the procedures for
availing themselves of these remedies, but their
attitude toward the courts is one of fear. O’Con-
nor v. Matzdorf, 458 P. 2d 154, 160-161 (Wash.
Sup. Ct. 1969).
Petitioner’s arguments find further support in
studies that have been undertaken to determine the
impact on the outcome of a deportation proceeding
and the results are compelling. The alien prevails in
a far greater number of cases if he is represented by
counsel.!! In summarizing the findings of these
reports Charles Gordon states:
The commentators found that in both in-
stances there was a vast need for greater
opportunities to be represented by counsel.
These studies revealed that representation by
counsel had a marked effect on the administra-
tive proceedings, and that represented aliens
prevailed in a far higher proportion of cases.
since their counsel were much more effective in
raising points of law, in questioning due pro-
(Footnote 10 continued)
times pose complicated factual or legal questions.
Obviously the services of counsel can be quite valuable
in protecting these persons’ rights and status.” Id. at 877.
Sce also, Haney, Deportation and the Right to Counsel, 11
Harv. Inter. Law Journal 177 (1970); Note, Resident Aliens
and Due Process: Anatomy of A Deportation, 8 Villanova L.
Rev. 566 (1963).
11 All these studies are discussed in Gordon, Id.: Wickersham
Report, Report of the Ellis Island Committee and the Van
Vleck Report.
cess, in marshalling relevant evidence, and in
advancing claims of United States citizenship. 45
Minn. L. Rev. supra at 878.
Finally the power of the United States to deport
aliens is an implied power which at times must give
way to express guarantees of the Fifth Amendment.
Harisiades v. Shaugnessey, 342 U.S. 580 (1952). While
8 U.S.C. §1362 provides a right to counsel in
exclusion or deportation proceedings for those who
can afford to pay, it specifically prohibits represent-
ation at government expense. For indigents this
provision is but a cruel hoax. Whereas the Fifth
Amendment is recognized as a protection to aliens,
the statutory scheme at issue limits due process so
that the availability of counsel is dependent on the
financial resvurces of the individual; this notion is
unacceptable. Williams v. Illinois, 399 U.S. 235
(1970); Douglas v. California, 372 U.S. 352 (1963);
Griffin v. Illinois, 351 U.S. 12 (1956).
In conclusion, to deny the right to counsel to
indigent aliens is to ignore the mandates of the Fifth
Amendment. Justice is ill-served when the hopes of
indigent aliens, with the vision of America before
them, are rudely snuffed out at a deportation
proceeding where they stand alone and uncoun-
seled.'2
12 Whatever the merits of the constitutional arguments for
provision of legal services to detained aliens, it is clear that
today. effective utilization of the right to legal representa-
tion in deportation proceedings accorded under the Act, [8
U.S.C. §§1252(b)(2) and 1362] hinges not upon the freely
exercised desires of the alien, as it should, but upon his
financial capacity, an indiscriminate criterion which ig-
nores the complexity of deportation proceedings and the
serious ramifications of deportation. In this regard, see also
(Footnote 12 continued)
Kaufman v. Carter, 402 U.S. 954, 955-61 (1971) (Black and
Douglas, J. J., dissenting from denial of certiorari).
At the very least, the INS should be required to maintain
written lists of individuals or national or local organizations
offering access to free or inexpensive legal assistance and to
assure that each alien be provided with such list and an
explanation of its significance immediately upon issuance
of a show cause order. See e.g., concurring opinion of Justice
Brennan, Argersinger v. Hamlin, 407 U.S. 25, 40-1 (1972)
regarding the utilization of legal resources. See also, Id. at
37, n. 7.
Equally important to an analysis of an alien's right to
protections afforded by meaningful legal assistance is the
fact that few arguments can be made against such assist-
ance. The economic burden of providing counsel would be
slight, since in comparison to the great number of criminal
cases where counsel must be appointed to comply with
Gideon v. Wainwright, supra and its progeny, deportation
proceedings are few, and those contested even fewer. Thus,
of the total number of 788,145 apprehended aliens in fiscal
year 1974, 718,740 voluntarily departed from the United
States. (1974 Annual Report: Immigration and Naturaliza-
tion Service, p. 84). Even a smaller percentage of those
apprehended actually are referred to special inquiry officers
for a deportation hearing. Only 45,301 cases were referred in
fiscal year 1974. (See 1974 INS Annual Report at p. 16).
Possible interference with the administrative process also is
a misplaced rationale for refusing to appoint counsel.
Counsel presently appear in approximately 50 percent cf all
deportation proceedings (estimate of Charles Gordon, INS
General Counsel, cited in Haney, supra, at 181 n. 29), and
these appearances have not noticeably disrupted INS
activities. In fact, Mr. Gordon has stated that an attorney's
“participation in the immigration proceeding generally is
welcomed as an assurance of due process.” Gordon, Right to
Counsel! and Immigration Proceedings, supra. at 878.
CONCLUSION
This petition presents important issues regard-
ing the appointment of counsel under the Due
Process Clause in the deportation context. In view of
this case and the Fifth Circuit’s recent adoption of
the Enriquez rationale in Barthold v. Immigration
and Naturalization, supra, there now exists a serious
conflict of decisions among the several Circuits
regarding the fundamental questions presented for
review. For the above stated reasons, a writ of
certiorari should issue to review the judgment and
opinion of the Court of Appeals.
Respectfully submitted,
ROBERT S. CATZ
HOWARD S. SCHER
BURTON D. WECHSLER
Urban Law Institute
Antioch School of Law
Washington, D.C.
PHYLLIS A. REHA
RICHARD FEFERMAN
Michigan Migrant Legal
Assistance Project
Saginaw, Michigan
Counsel for Petitioner
September 29, 1975
29
APPENDIX A
United States Department of Justice
Board oi Immigration Appeals
Washington, D.C. 20530
Feb. 1, 1974
File: ...7 074 961 — Detroit
In re: JESUS AGUILERA-ENRIQUEZ
IN DEPORTATION PROCEEDINGS
ON BEHALF OF RESPONDENT: Kevin Carey,
Esquire, Migrant Legal Action Program, Inc.,
1820 Massachusetts Ave., N.W., Washington, D.C.
20036
ON BEHALF OF I&N SERVICE: Irving A. Apple-
man, Appellate Trial Attorney
ORAL ARGUMENT: May 31, 1973
CHARGES: Order: Section 241(a)(11), I&N Act, (8
U.S.C. 1251(a)(11) ) — convicted of illicit posses-
sion of cocaine
APPLICATION: Termination of proceedings
This case presents an appeal from a decision of
the immigration judge on February 6, 1973, finding
the respondent deportable and ordering his deporta-
tion to Mexico on the charge contained in the Order
to Show Cause. The appeal will be dismissed.
30
The respondent is a native and citizen of Mexico,
age 39, who has resided in the United States since his
arrival here in December 1967. He was convicted in
the United States District Court, El Paso, Texas, in
April 1972 for knowingly possessing a quantity of
cocaine, a Schedule II controlled substance, in
violation of 21 USC 844(a). The respondent received a
suspended i-year sentence and was placed on
probation for a period of 5 years. He also was fined
$5,000. Deportability has been established by clear,
convincing and unequivocal evidence.
On appeal and at oral argument, counsel con-
tended that the respondent’s conviction was improp-
erly obtained because he did not realize the
consequences of his plea of guilty w the count of
illegal possession of a quantity of cocaine. We have
carefully reviewed the entire record, including the
position of the Service, and conclude that counsel’s
contention is not meritorious. A collateral attack
may be made on a criminal court judgment on the
question of jurisdiction. Absent a showing that the
criminal court lacked jurisdiction to render the
judgment, however, we have no power to reexamine
that judgment and are bound to accord it full faith
and credit. See Matter of Sirhan, et al., 13 I&N Dec.
592 (BIA 1970). If and when the respondent’s
conviction is vacated by the court, he may then move
to reopen these proceedings. We should like to point
out that a conviction for mere possession of a
narcotic drug has been held sufficient to justify a
deportation order. Mendoza-Rivera v. Del Guarcio,
161 F. Supp. 473 (S.D. Cal. 1958), affd Hoy v.
31
Mendoza-Rivera, 267 F. 2d 451 (9 Cir. 1959). Accor-
dingly, we conclude that the appeal should be
dismissed.
ORDER: The appeal! is dismissed.
MARVIN P. ROBERTS
Chairman
32
APPENDIX B
No. 74-1565
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JESUS AGUILERA-ENRIQUEZ,
Petitioner,
Vv.
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
Petition for Review of an Order of the Immigration
and Naturalization Service.
Decided and Filed May 7, 1975.
Before: Celebrezze and McCree, Circuit Judges,
and DeMascio,* District Judge.
Celebrezze, Circuit Judge, delivered the opinion
of the court, in which McCree, Circuit Judge, joined.
DeMascio, District Judge, (pp. 10-13) filed a dissen-
ting opinion.
Celebrezze, Circuit Judge. Petitioner, Jesus
Aguilera-Enriquez, seeks reversal of a deportation
order on the ground that he was constitutionally
entitled to but was not afforded the assistance of
counsel during his deportation hearing. He also
claims that the narcotics conviction on which his
33
deportation order is based is not yet final and should
not be available as a basis for his expulsion from the
United States.
A thirty-nine-year-old native and citizen of
Mexico, Petitioner has resided in the United States
since December 18, 1967, when he was admitted for
permanent residence. He is a married farm worker,
living with his wife and three daughters in Saginaw,
Michigan.
In December 1971, Petitioner traveled to Mexico
for a vacation. An officer of the Saginaw, Michigan
Police Department notified federal customs officers
at the Mexican border that he had reason to believe
that Petitioner would be returning with a quantity of
heroin. When Petitioner crossed the border on his
return, he was subjected to a search which produced
no heroin but did reveal two grams of cocaine.
On April 12, 1972, Petitioner pleaded guilty in the
United States District Court for the Western District
of Texas, on one count of knowingly possessing a
quantity of cocaine, a Schedule II controlled sub-
stance, in violation of 21 U.S.C. §844(a) (1970).
Petitioner received a suspended one-year sentence,
was placed on probation for five years, and was
fined $3,000, to be paid in fifty-dollar monthly
installments over the five-year probationary period.
Neither Petitioner's appointed counsel nor the
District Court informed him that a narcotics convic-
tion would almost certainly lead to his deportation.
*t'onorable Robert E. DeMascio, U.S. District Judge for the
astern District of Michigan, sitting by designation.
ee
34
On December 7, 1972, the Immigration and
Naturalization Service issued an Order to Show
Cause and Notice of Hearing, charging that because
of his narcotics conviction, Petitioner should be
deported under section 241(a)(11) of the Immigration
and Nationality Act, 8 U.S.C. §1251(a)(11) (1970).
On February 6, 1973, Petitioner appeared before
the Immigration Judge and requested appointed
counsel. The Immigration Judge refused this re-
quest. After a hearing Petitioner was ordered
deported and was not afforded the option of volun-
tary departure.
Shortly after the Immigration Judge’s ruling,
Petitioner engaged as counse! 2 Michigan legal
assistance attorney, who in turn secured the services
of a Texas attorney.
On February 14, 1973, Petitioner filed an appeal
to the Board of Immigration Appeals, stating that .
the validity of the Texas conviction was being
challenged.
On May 23, 1973, Petitioner’s Texas counsel filed
a motion to withdraw his guilty plea under Rule
32(d), F.R. Crim. P. The motion asserted that the
District Court had not followed Rule 11 in accepting
the plea because it had not properly determined that
there was a factual basis for the plea and that the
plea was made with a full understanding of the
probable consequences.
On February 1, 1974, after full briefing and oral
35
argument by counsel for Petitioner and the Govern-
ment, the Board of Immigration Appeals dismissed
Petitioner’s appeal. A petition for review was timely
filed in this Court.
The issue Petitioner raises here is whether an
indigent alien has the right to appointed counsel in a
deportation proceeding. He attacks the constitution-
al validity of 8 U.S.C. §1252(b)(2) (1970), which gives
an alien facing deportation proceedings “the privi-
lege of being represented (at no expense to the
Government) by such counsel, authorized to practice
in such proceedings, as he shall choose.”! The
Immigration Judge held that this section prevented
appointment of counsel at Government expense.
Since he could not afford to hire a lawyer, he did not
have one before the Immigration Judge.
The courts have been vigilant to ensure that
aliens receive the protections Congress has given
them before they may be banished from our shores.
As this Circuit noted in United States ex rel.
Brancato v. Lelmann, 239 F. 2d 663, 666 (6th Cir.
1956),
Although it is not penal in character, deportation
is a drastic measure, at times the equivalent of
banishment or exile, for which reason deporta-
tion statutes should be given the narrowest of
the several possible meanings.
See also Immigration and Naturalization Service v.
Errico, 385 U.S. 214, 225 (1966); Woodby v. Immigra-
1 See also 8 U.S.C. §1362 (1970); 8 C.F.R. §242.16.
36
tion and Naturalization Service, 385 U.S. 276 (1966);
Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479
(1963). The Supreme Court has held that once an
alien has been admitted to lawful residence, “not
even Congress may expel him without allowing him
a fair opportunity to be heard.” Kwong Hai Chew v.
Colding, 244 U.S. 590, 598 (1953). Thus, if procedures
mandated by Congress do not provide an alien with
procedural due process, they must yield, and the
constitutional guarantee of due process must pro-
vide adequate protection during the deportation
process.2 Yamataya v. Fisher (The Japanese Immi-
grant Case), 189 U.S. 86, 100 (1903); Wong Yang Sung
v. McGrath, 339 U.S. 33, 49-51, modified on rehearing,
339 U.S. 908 (1950).
Tre test for whether due process requires the
appointment of counsel for an indigent alien is
whether, in a given case, the assistance of counsel
would be necessary to provide “fundamental fair-
ness — the touchstone of due process.” Gagnon v.
Scarpelli, 411 U.S. 778, 790 (1973).3
2 See generally Grosh, “Immigrants, Aliens, and the Constitu-
tion,” 49 Notre Dame Lawyer 1075 (1974); Haney, ‘“Deporta-
tion and the Right to Counsel,” 11 Harv. Int'l. L. J. 177 (1970);
Gordon, “The Right to Counsel in Immigration Proceed-
ings,” 45 Minn. L. Rev. 875 (1961).
3 The Supreme Court’s holdings in Gagnon, Morrissey v.
Brewer, 408 U.S. 471 (1972), and In re Gault, 387 U.S. 1 (1967),
have undermined the position that counsel must be provided
to indigents only in criminal proceedings. Decisions such as
Tupacyupanzui-Marin v. Immigration and Naturalization
Service, 447 F. 2d 603 (7th Cir. 1971), and Murgia-Melendrez
v. Immigration and Naturalization Service, 407 F. 2d 207 (9th
Cir. 1969), which contain dictum appearing to set forth a per
se rule against providing counsel to indigent aliens facing
37
In Petitioner's case the absence of counsel at his
hearing before the Immigration Judge did not
deprive his deportation proceeding of fundamental
fairness.
Petitioner was held to be deportable under
section 241(a)(11) of the Immigration and Nationali-
ty Act, 8 U.S.C. §1251(a)(11), which states in relevant
part:
(a) Any alien in the United States... shall, upon
the order of the Attorney General, be deported
who — (11)... at any time has been convicted of
a violation of... any law or reguiation relating
to the illicit possession of or traffic in narcotic
drugs...
Before the Immigration Judge, Petitioner raised no
defense to the charge that he had been convicted in
April 1972 of a violation of 21 U.S.C. §844(a). Thus, he
was clearly within the purview of section 241(a)(11)
of the Act, and no defense for which a lawyer would
have helped the argument was presented to the
Immigration Judge for consideration. After the
decision of the Immigration Judge, Petitioner moved
to withdraw his guilty plea in the Texas District
Court under Rule 32(d), F. R. Crim. P. He then urged
before the Board of Immigration Appeals that this
moiion took him outside the reach of section
(Footnote 3 continued)
deportation, rested largely on the outmoded distinction
between criminal cases (where the Sixth Amendment
guarantees indigents appointed counsel) and civil proceed-
ings (where the Fifth Amendment applies). Where an
unrepresented indigent alien would require counsel to
present his position adequately to an immigration judge, he
must be provided with a lawyer at the Government's
expense. Otherwise. “fundamental fairness” would be violat-
ed.
38
241(a)(11), because the likelihood of success on that
motion meant that he had not been “convicted” of a
narcotics offense. He was effectively represented by
counsel before the Board, and his argument was
considered upon briefing and oral argument. The
lack of counsel before the Immigration Judge did not
prevent full administrative consideration of his
argument. Counsel could have obtained no different
administrative result. “Fundamental fairness,”
therefore, was not abridged during the administra-
tive proceedings, and the order of deportation is not
subject to constitutional attack for a lack of due
process. Henriques v. Immigration and Naturaliza-
tion Service, 465 F. 2d 119, 120-21 (2d Cir. 1972);
Villanueva-Jurado v. Immigration and Naturaliza-
tion Service, 482 F. 2d 886, 888 (5th Cir. 1973); Sumio
Madokoro v. Del Guercio, 160 F. 2d 164 (9th Cir.
1947).
We turn, therefore, to Petitioner’s second conten-
tion — that his conviction on the Texas narcotics
charge has not reached the stage of finality required
to support deportation under section 241(a)(11) of the
Immigration ad Nationality Act, 8 U.S.C. §1251
(a)(11) (1970).
That section, as excerpted above, provides for
the deportation of any alien who “at any time has
been convicted of ... any law ... relating to the
illicit possession of or traffic in narcotic drugs.’
4 The offense to which Petitioner pleaded guilty (possession of
cocaine in violation of 21 U.S.C. §844(a) ) is within the ambit
of section 241(a)(11). See Hoy v. Mendoza-Rivera, 267 F. 2d
451, 452 (9th Cir. 1959).
39
Petitioner argues that because he has filed a motion
to withdraw his guilty plea under Rule 32(d), F. R.
Crim. P., and because that motion is likely to
succeed,5 the conviction by way of judgment and
sentence on April 12, 1972 does not mean that he
“has been convicted” of a narcotics offense under
section 241(a)(11).
The definition of “convicted” within section
241(a)(11) is a matter of federal law, to be interpreted
in harmony with the policies underlying the Immi-
gration and Nationality Act. Gutierrez-Rubio v.
Immigration and Naturalization Service, 453 F. 2d
1243 (10th Cir. 1972); Garcia-Gonzalez v. Immigra-
tion and Naturalization Service, 344 F. 2d 804, 808-09
(9th Cir.), cert. denied, 382 U.S. 840 (1965); Gutierrez
v. Immigration and Naturalization Service, 323 F. 2d
593, 596 (9th Cir. 1963).
The Immigration authorities must look to judi-
cial records to determine whether a person has been
“convicted” of a crime. They may not determine on
their own an alien’s guilt or innocence. Rassano v.
Immigration and Naturalization Service, 377 F. 2d
971, 974 (7th Cir. 1967); Mylius v. Uhl, 210 F. 2d 860
(2nd Cir. 1914). Because judicial records, rather than
a de novo review of an alien’s guilt, determine
whether an alien has been “convicted” of a crime, it
is important that a conviction be final before it is
used as the basis for a deportation order.
———— ee
5 His Rule 32(d) motion asserts that the District Court failed to
follow Rule 11, F. R. Crim. P., when it accepted his guilty
plea because it did not inform him that deportation would
result from his plea. He asserts that he was unaware of the
probability of deportation when he entered his plea.
40
The question of when a conviction is final for
deportation purposes has not been extensively
litigated. The only Supreme Court guidance in the
area involved an alien who had been found guilty of
petty larceny in a state court, had waived his right to
direct appeal, and had been placed on a one-year
probation. Under Massachusetts law, at the end of
his probation his sentence was revoked and his case
was put “on file.” This meant that the judicial
determination of guilt remained but that final
sentencing was held in abeyance. Instead, an ambu-
latorv form of punishment, including surveillance of
the defendant's activities, was imposed, and the
District Court retained the right to impose «a. final
sentence. In the event of formal sentencing. the
defendant had the right to appeai and to obtain a
trial de novo before a jury in Superior Court. The
Supreme Court held, in a brief per curiam opinion,
that it was “unable to say that the conviction has
attained such finality as to support an order of
deportation within the contemplation of §241 of the
Immigration and Nationality Act.” Pino v. Landon,
349 U.S. 901 (1955), rev’g Pino v. Nicolls, 215 F. 2d 237
(ist Cir. 1954).
The Seventh Circuit has interpreted Pino and
section 241(a)(11) as requiring “that a final curtain
must have been drawn in the criminal proceedings.”
Will v. Immigration and Naturalization Service, 447
F. 2d 529, 532 (7th Cir. 1971). See also Matter of L. R.,
8 I. & N. Dec. 269 (1959). We agree with the Seventh
Circuit that not only a “conviction” but a sentence
and exhaustion of procedures for direct appeal are
41
necessary before an alien “has been convicted” of a
narcotics offense under section 241(a)(11). Within the
federal judicial system, a person has not been
“convicted” of a crime under section 241(a)(11) until
a judgment of conviction has been entered and until
procedures for a direct appeal have been exhausted
or waived.®
Once these events have occurred, the alien “has
been convicted” of an offense for deportation pur-
poses. Post-conviction motions do not operate to
negate this conclusion. If one is successful in
reversing the judgment and sentence, no conviction
will remain to form a basis for deportation.” But
until a conviction is overturned, it is an adequate
basis for a deportation order.
Petitioner argues that a motion to withdraw a
guilty plea under Rule 32(d) is a “direct” rather than
“collateral” attack on its validity, so that his
conviction should not yet be considered final. We do
not believe that the “direct” — “collateral” distinc-
6 Rule 32(b), F. R. Crim. P., requires entry of a judgment,
setting forth “the plea, the verdict or findings, and the
adjudication and sentence.” Because Rule 38 requires the
stay of a sentence of imprisonment or probation and allows
the stay of a sentence “to pay a fine or a fine and costs,” a
sentence cannot be considered final until a direct appeal has
been decided or waived. Until then, “the final curtain” has
not been drawn on the criminal proceeding.
7 See Cruz-Sanchez v. Immigration and Naturalization Serv-
ice, 438 F. 2d 1087 (7th Cir. 1971): Sawkow v. Immigration
and Naturalization Service, 314 F. 2d 34 (3d Cir. 1963); United
States ex rel. Freislinger v. Smith, 41 F. 2d 707 (7th Cir. 1930);
Matter of Sirhan, 13 I & N. Dec. 592 (1970); Matter of Ibarra-
Obando, 12 |. & N. Dec. 576 (1967); Matter of O'Sullivan, 10 I.
& N. Dec. 320 (1963).
42
tion is a meaningful dividing line for deportation
purposes. A guilty plea waives objection to the
Government's pre-trial conduct, as well as the right
of direct appeal. It “draws the final curtain” on a
criminal proceeding, except for the necessary step of
sentencing. Before sentencing, under Rule 32(d), a
motion to withdraw a guilty plea can be heard before
the judgment of conviction is entered. Once sentenc-
ing is completed, however, the conviction is final
for deportation purposes. A claim which is made
after the entry of judgment to the effect that the
guilty plea should not have been accepted is a post-
conviction motion, whether it arises through a Rule
32(d) motion or a petition under 28 U.S.C. §2255
(1970).
Petitioner urges that we view his situation with
particular favor because his Rule 32(d) motion is
“likely to succeed.” He asks, in other words, that we
require the Service to conduct an inquiry into each
potential deportee’s criminal record to ascertain
whether a post-conviction motion is likely to
overturn his conviction, thereby depriving the Serv-
ice of a basis for deportation.
Were we to require the Service to weigh the
probability of success of each potential deportee's
post-conviction pleas, we would hopelesly compli-
cate an administrative process which Congress
intended to be simple and swift.* We will not require
8 If a judgment of conviction is void on its face, a postconvic-
tion adjudication is not required to render it unavailable for
deportation purposes. United States ex rel. Freislinger v.
Smith, 41 F. 2d 707 (7th Cir. 1930).
43
the Service to double-guess the courts. A conviction
is final and is a valid basis for deportation unless
and until overturned by a post-conviction plea.
Petitioner's case is instructive in this regard. He
claims that he had no idea that deportation might
result from his guilty plea and that under United
States v. Briscoe, 432 F. 2d 1351, 1353 (D.C. Cir. 1970),
he is entitled to withdraw his plea. For the Service or
for us to assess the likelihood of his claim, we would
need a better understanding of the circumstances
surrounding his plea, including advice given by his
lawyer and his own level of sophistication, and we
would have to undertake an analysis of evolving
case law. See United States v. Sambro, 454 F. 2d 918
(D.C. Cir. 1971); Bye v. United States, 435 F. 2d 177
(2nd Cir. 1970); Briscoe: United States v. Parrino, 212
F. 2d 919 (D.C. Cir. 1954). This is an unwarranted
burden to place on the Service, and we will not do so.
Our conclusion does not deprive Petitioner of all
relief. He may request an administrative stay of his
deportation order pending the outcome of his Rule
32(d) motion.® The Service has discretion to stay his
deportation order, and a denial of stay is subject to
review in this Court, albeit within narrow limits.
Polites v. Sahli, 302 F. 2d 449 (6th Cir.), cert. denied,
371 U.S. 916 (1962). We note that it is unlikely that a
stay will be granted on the grounds advanced to this
Court. As we learned after oral argument, Petition-
er's Rule 32(d) motion was denied on February 3,
1975 as “frivolous.”
The petition for review is denied.
9 See generally C. Gordon & H. Rosenfield, Immigration Law
and Procedure, ch. 7 (rev'd ed. 1975): Jay v. Boyd, 351 U.S. 345
(1950).
44
DeMascio, District Judge (Dissenting).
A deportation proceeding so jeopardizes a
resident alien's basic and fundamental right to
personal liberty that I cannot agree due process is
guaranteed by a “fundamental fairness” analysis on
a case-by-case basis. Gagnon v. Scarpelli, 411 U.S.
778 (1973). I think a resident alien has an unqualified
right to the appointment of counsel. In re Gault, 387
U.S. 1 (1967). When the government, with plenary
power to exclude, agrees to allow an alien lawful
residence, it is unconscionable for the government to
unilaterally terminate that agreement without af-
fording an indigent resident alien assistance of
appointed counsel. Expulsion is such lasting pun-
ishment that meaningful due procoss can require nu
less. Assuredly, it inflicts punishment as grave as
the institutionalization which may follow an In re
Gault finding of delinquency. A resident alien's
right to due process should not be tempered by a
Classification of the deportation proceeding as
“civil,” “criminal,” or “administrative.” No matter
the classification, deportation is punishment, pure
and simple.!
In Gagnon, the Supreme Court acknowledged
that it was affording parolees and probationers less
due process than it afforded juveniles in In re Gault.
It reached this result because a parolee or probation-
1 Based upon a civil-criminal classification, the Seventh and
Ninth Circuits have ruled that indigent aliens have no right
to appointed counsel. Tupacyupanqui-Marin v. Immigration
& Nat. Service, 447 F. 2d 603 (7th Cir. 1971); Murgia-
Melendrez v. United States Immigration & Nat. Serv., 407 F.
2d 207 (9th Cir. 1969).
45
er is in that position solely because he was previous-
ly convicted of a crime. The court reasoned that
parolees and probationers should be required to
demonstrate that an attorney would serve a useful
purpose prior to compelling the government to
provide counsel at government expense. But, in a
deportation proceeding, the respondent need not
necessarily be before the immigration judge because
of a prior conviction.? The fact of conviction is only
one of numerous grounds for deportation outlined in
the statute. Similar to the juvenile, an alien may
only stand accused of an offense.
As noted in Gagnon, the function of the proba-
tion or parole officer is not to “compel conformance
to a strict code of behavior’ but to “supervise a
course of rehabilitation.” 411 U.S. 784. Insertion of
counsel into such a “predictive and discretionary”
proceeding could inadvertently circumscribe the
officer’s flexibility. However, no such justification
for the exclusion of counsel exists in deportation
proceedings where the sole duty of the immigration
law judge is to determine whether a deportable
offense has occurred. 8 U.S.C. §1251(a).
Further, a probation revocation hearing is a non-
2 If the court wishes to extend Gagnon, perhaps a better
approach is to limit the case-by-case appointment of counsel
to proceedings where respondent is being deported because
he has a previous conviction and is, therefore, entitled to
less due process. In all other instances, counsel should be
appointed as a matter of right under the due process clause.
The court suggests an indigent alien is entitled to appointed
counsel only when it is necessary “...to present his
position adequately to an immigration judge .. .”’ (See fn. 3,
supra.)
46
adversary proceeding. The government is not repre-
sented by a prosecutor. There are no procedural
rights which may be lost as in a criminal trial. A
deportation hearing on the other hand is always an
adversary proceeding.? Gagnon does not go so far as
to hold that in adversary proceedings due process
may be afforded on a case-by-case basis by retro-
spective determination that the hearing was charac-
terized by “fundamental fairness.”
The court today has fashioned a test to resolve
whether a resident alien’s due-process right requires
appointment of counsel. That test is whether “.. . in
a given case, the assistance of counsel would be
necessary to provide ‘fundamental fairness’ — the
touchstone of due process.’ Gagnon, supra. The
majority concludes that lack of counsel before the
immigration judge did not prevent full consideration
of petitioner’s sole argument and no different result
would have been obtained had counsel been appoint-
ed. Accordingly, the court holds the hearing was
3 A reading of 8 U.S.C. §1252(b) makes it apparent that the
special inquiry officer [now an immigration judge by
regulation] functions as a prosecutor, defense lawyer, finder
of facts, and judge. While the statute does not provide for the
appointment of a government trial attorney, a regulation
does. 8 CFR §242.16(c) provides that if an alien does not
admit he is deportable, the immigration judge shail appoint
a government trial attorney to establish the facts justifying
deportation. At the hearing, the rules of evidence do not
apply. Hearsay evidence is admissible. During such an
adversary hearing, the indigent resident alien stands alone.
He does not have a lawyer to meaningfully participate in
making a record, a record upon which the Appeals Board
and this court will determine whether the orler of deporta-
tion was supported by evidence that is clear and convincing.
47
fundamentally fair. These conclusions are reached
by second guessing the record — a record made
without petitioner’s meaningful participation.
In my view, the absence of counsel at respond-
ent’s hearing before the immigration judge inherent-
ly denied him fundamental fairness. Moreover, I do
not believe that we should make the initial determi-
nation that counsel is unnecessary; or that lack of
counsel did not prevent full administrative consider-
ation of petitioner’s argument; or that counsel could
not have obtained a different administrative result.®
We should not speculate at this stage what conten-
tions appointed counsel could have raised before the
immigration judge. For example, a lawyer may well
nave contended that §1251(a)(11) is an unconstitu-
tional deprivation of the equal protection of the laws
by arguing that alienage was the sole basis for the
infliction of punishment, additional to that imposed
by criminal law; that since the government elected to
rely upon the criminal law sanctions, it may not now
additionally exile petitioner without demonstrating
a compelling governmental interest.
4 The Second Circuit has similarly held that where the
respondent admits the allegations in the order to show cause
and it does not appear that an attorney would affect the
outcome, lack of appointed counsel does not violate due
process. Henriques v. Immigration & Naturalization Serv-
ice, 465 F. 2d 119, 121 (2nd Cir. 1972), cert. denied, 410 U.S. 968.
5 Respondent obtained counsel to appeal his deportation.
Before the Board of Immigration Appeals, counsel urged
reversal because he had filed a Rule 32(d) motion to attack
respondent's prior plea to the narcotic charge. The attorney
argued the conviction was not final and, therefore. respond-
ent was not deportable. Because I believe respondent's
request for appointed counsel should have been granted. I
would not reach the Rule 32(d) motion as the majority does. I
would reverse and allow a lawyer to decide how best to
protect respondent’s interests.
48
I de not intend to imply such a contention has
validity. I cite this only to emphasize the danger of
attempting to speculate at this stage whether
counsel could have obtained a different result and to
show that it is possible that the immigration judge
did not fully consider all of petitioner's arguments.
Because the consequences of a deportation
proceeding parallels punishment for crime, only a
per se rule requiring appointment of counsel will
assure a resident alien due process of law. In this
case, the respondent, a resident alien for seven
years, committed a criminal offense. Our laws
require that he be punished and he was. Now, he
must face additional punishment in the form of
banishment. He will be deprived of the life, liberty,
and pursuit of happiness he enjoyed by governmen-
tal consent.® It may be proper that he be compelled to
fact the consequences of such a proceeding. But,
when he does, he should have a lawyer at his side
and one at government expense, if necessary. When
the government consents to grant an alien residency,
it cannot constitutionally expel unless and until it
affords that alien due process. Our country’s consti-
tutional dedication to freedom is thwarted by a
watered-down version of due process on a case-by-
case basis.
I would reverse and remand for the appointment
of counsel before the immigration judge.
6 Of course, what I have said applies only to a resident alien. I
readily agree that an alien who enters illegally is entitled to
less due process, if any at all. It is interesting to note that the
Immigration Act seems to treat all aliens alike.
49
APPENDIX C
No. 74-1565
United States Court of Appeals
For the Sixth Circuit
JESUS AGUILERA-ENRIQUEZ,
Petitioner,
Vv.
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
ORDER
(Filed July 2. 1975)
John P. Hehman, Clerk
Before: Celebrezze and McCree, Circuit Judges, and
DeMascio,* District Judge.
Petitioner's petition for rehearing having come
on to be heard, and no judge of this Court having
requested a vote on the suggestion that it be
considered en banc.
IT IS ORDERED that the petition be, and it is,
hereby denied.
ENTERED BY ORDER OF THE COURT
John P. Hehman, Clerk
By: Grace Keller
Grace Keller
Chief Deputy
*Honorable Robert E. DeMascio, U.S. District Judge for the
Eastern District of Michigan, sitting by designation.
50
APPENDIX D
1. United States Constitution, Amendment V:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a grand jury, except in cases
arising in the land or naval forces, or in the militia,
when in actual service in time of war or public
danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property without due process of law; nor
shall private property be taken for public use,
without just compensation.
2. 8 U.S.C. §1252(b)(2):
... Such regulations shall include requirements
that —
(2) the alien shall have the privilege of being
represented (at no expense to the Government) by
such counsel, authorized to practice in such proceed-
ings, as he shall choose;...
3. 8 U.S.C. §1362:
In any exclusion or deportation proceedings
before a special inquiry officer and in any appeal
proceedings before the Attorney General from any
such exclusion or deportation proceedings, the
person concerned shall have the privilege of being
represented (at no expense to the Government) by
such counsel, authorized to practice in such proceed-
ings, as he shall choose.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.