Petition — Bonsukan v. Immigration & Naturalization Service

a

Supreme Coust, U. &

‘~ FILED

JUN 19 1977

SUPREME COURT OF THE UNITED STATES

No.

76-1780

AMELIA O. BONSUKAN, Petitioner

Vv.

IMMIGRATION AND NATURALIZATION

SERVICE, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BASIL S. YANAKAKIS

Six Beacon Street

Boston, Massachusetts

02108

—EE7~

Counsel for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

AMELIA O. BONSUKAN, Petitioner

Vv.

IMMIGRATION AND NATURALIZATION

SERVICE, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner Amelia O. Bonsukan re-

spectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

First Circuit entered in this proceeding on

April 25, 1977.

OPINION BELOW

The opinion of the Court of Appeals,

not yet reported, appears in the Appendix

hereto. No opinion was rendered by a Uni-

ted States District Court, the Court of

Appeals having exclusive jurisdiction under

28 United States Code 2341 et seq.

ole

JURISDICTION

The judgment of the Court of Appeals

for the First Circuit was entered on April

25, 1977. This petition for certiorari was

filed within ninety days of that date. This

Court's jurisdiction is invoked under 28

United States Code 2350.

QUESTIONS PRESENTED

1. Whether a petition to review filed with-

in six months of a denial of a Motion to Re-

open by the Board of Immigration Appeals,

which Motion had been filed within six months

of the Show Cause hearing, tolls the statu-

tory requirements of Section 106(a)(1) of the

Immigration and Nationality Act.

2. Whether the decision of the Court of Ap-

peals which concurred with that of the Board

of Immigration Appeals was based on improper-

ly considered factors so as to make the pre-

sent case a proper one to be remanded for re-

consideration.

3. Whether petitioner's Constitutionally

granted right to counsel was properly pro-

tected by the Immigration and Naturalization

Service.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 8

Section 1105(a)(1) - A petition to review

must be filed within six months of a final

order of deportation.

o2e

rom = -

Section 1254(a)(1) - The Attorney-

General may, in his discretion, suspend

the deportation of an alien and adjust

his status to that of a permanent resi-

dent provided such alien is physically

present in the United States for seven

years, is of good moral character, and

there is a case of extreme hardship to

the alien.

Section 1254(f) - Set out in text of

Reasons for Granting the Writ.

Section 1182(e) - Set out in text of

Reasons for Granting the Writ.

STATEMENT OF THE CASE

Petitioner is a native and citizen of

the Republic of the Philippines who was law-

fully admitted to the United States as an

exchange visitor.

The Course of the Proceedings which

brings the matter to this Court is as fol-

lows: Petitioner received an Order to Show

Cause why she should not be deported on

September 19, 1975. At the subsequent hear-

ing, Petitioner's counsel was unable to be

present. The Immigration Judge after deter-

mining this fact, initially granted a one

week postponement of the hearing to allow

Counsel to be present. After an interval

"off the record", however, Petitioner inex-

plicably consented to continue with the hear-

ing despite her counsel's absence. Because

Petitioner was not represented by counsel at

this hearing, none of her proper defenses to

the Order to Show Cause were raised nor her

right to appeal reserved at this time.

o3e

On February 17, 1976 Miss Bonsukan

was ordered to be deported. A Motion to

Reopen and Reconsider was filed with the

Immigration and Naturalization Service on

March 3, 1976, and was denied by the same

Immigration Judge on April 8, 1976.

An appeal of the Immigration Judge's

decision denying the petitioner's motion

to reopen was taken to the Board of Immi-

gration Appeals which finally dismissed

the appeal on September 30, 1976.

A Petition to Review was filed with

the United States Court of Appeals for the

First Circuit on October 12, 1976. A deci-

sion to d‘smiss the petition was rendered

on April 25, 1977. A petition for modifi-

cation of the opinion was filed with the

Court which entered a memorandum and order

on May 18, 1977.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER COURTS OF

APPEALS AS TO THE PROPER INTER-

PRETATION OF SECTION 106(a)(1) OF

THE IMMIGRATION AND NATIONALITY

ACT, 8 UNITED STATES CODE 1105 (a)

(1).

Section 106(a) (1) of the Immigration

and Nationality Act provides that the Peti-

tion to Review must be filed not later than

six months from the date of the final depor-

tation order. The First Circuit has here

held that if petitioner did not appeal the

Immigration Judge's decision to the Board of

Immigration Appeals within the six month pe-

riod, her right to petition for review "was

~

expired and was not revived by _ the proceed-

ings on the Motion to Reopen. "1 In so hold-

ing, the First Circuit conceded that its in-

terpretation of Section 106(a) (1) conflicts

with that adopted by the Ninth Circuit in

Bregman v. INS, 351 F2d 401 (1965). The Ninth

Circuit held that a Petition to Review is

allowed if Motion to Reopen was made within

six months from date of the deportation order

and Petition te Review brought within six

months after denial of the motion. This

Court in interpreting Section 106(a)(1) of

the Act in Woodby v. INS, 385 US 276, 286,

note 20 (1966) cited the Bregman decision.

2. THE DECISION BELOW CONFLICTS WITH

THE DECISION OF OTHER COURTS OF

APPEALS AS TO THE PROPER INTER-

PRETATION OF SECTION 244(f) OF THE

IMMIGRATION AND NATIONALITY ACT,

8 UNITED STATES CODE 1254(f).

Section 244(a)(1) of the Act provides

that the Attorney-General may, in his dis-

cretion, suspend the deportation of an alien

and adjust his status to that of a permanent

resident provided such alien is physically

present in the United States for seven years,

is of good moral character and there ig a

case of extreme hardship to the alien.

Section 244(f) of the Act, however,

provides that Section 244(a)(1) is inappli-

cable to an alien who was admitted to the

United States pursuant to Section 101(a) (15)

(J) of the Act. Section 10l(a) (15) (J) of

the Act, 8 USC 1101(a) (15) (J) provides that

the term ‘immigrant’ means every alien except

"an alien having a residence in a for-

eign country which he has no intention

of abandoning who is a bona fide stu-

dent, scholar, trainee, teacher, pro-

fessor, research assistant, specialist,

or leader in a field of specialized

knowledge or skill, or other person of

similar description, who is coming to

the United States as a participant in a

program designated by the Secretary of

State, for the purpose of teaching, in-

structing or lecturing, studying, observ-

ing, conducting research, consulting,

demonstrating special skills, or receiv-

ing training, and the alien spouse and

minor children of any such alien if ac-

companying him or following to join him."

By Section 212(e) of the Act, 8 USC 1182

(e), no person admitted under Section 101(a)

(15) (J) who ,1) received governmental monetary

assistance or 2) was a national or resident

of a country listed by the Secretary of State

as requiring the services of such person may

apply for permanent residence or immigrant

visa. This second category was not applied

retroactively when the ammendment to the sta-

tute was enacted in April, 1970 (75 Stat. 534).

It was only applied to aliens who became ex-

change visitors after the lists were estab-

lished by the Secretary of State on April 25,

1972.> It is evident, therefore, that only

an exchange visitor who is subject to the for-

eiqn residence requirement is barred from ap-

plying for suspension of deportation. ®

The First Circuit concurred with the Board

of Immigration Appeals that the petitioner was

ineligible for the remedy of suspension of de-

portation and in any event the refusal by the

Board to grant suspension of deportation was

not an abuse of discretion.

In so holding, the First Circuit conceded

that its interpretation of Section 244(f) of

the Act conflicts with that adopted by the

Ninth Circuit in Siang Ken Wang v. INS, 413

F2d 286 (1969). The Ninth Circuit held in

the Wang case that if the

"Board's decision was based upon the

summation of four factors, one of

which was improperly considered, this

is a proper case for remand for re-

consideration by the Board."

In the present case, the decision by

the Board of Immigration Appeals that the

petitioner was not eligible for the remedy

of suspension of deportation is an impro-

perly considered factor together with the

factor of the refusal to grant suspension

of deportation as a matter of discretion.

3. THE DECISION BELOW RAISES PROBLEMS

REGARDING PROPER INTERPRETATION OF

THE CONSTITUTIONAL RIGHT TO COUNSEL

The First Circuit held that questions

"of unconstitutional denial of counsel and

of improperly held hearing should be raised

before the immigration judge". "To claim

now", the First Circuit decided, "that she

was prejudiced by lack of Counsel is alto-

gether too late. Counsel says in his exten-

sive brief that he raised this, and the po-

litical matter, post, in his brief before

the Board of Immigration Appeals on the ap-

peal from the denial of reconsideration. Even

if true, it is elemental that such matters,

particularly factual matters, should have

been made before the immigration judge and

could not be raised for the first time on ap-

peal."

It is the petitioner's contention that

questions of denials of counsel and improp-

erly held hearings should be raised at the

time the final deportation order was entered

according to Section 106(a)(1) of the Act and

not necessarily before the immigration judge.

In the present case, it is believed that the

final deportation order was entered when the

Board of Immigration Appeals denied the peti-

tioner's motion to reopen which motion sought

to afford an opportunity to apply for the

remedy of suspension of deportation under Sec-

tion 244(a)(1) of the Act.

This Court has stated that the denial of

a Motion to Reopen is part of the final de-

portation order and_therefore reviewab"‘e by

a Court of Appeals. ’

CONC LUS ION

For these reasons, a writ of certiorari

should issue to review the judgment of the

First Circuit Court of Appeals.

Respectfully submitted,

Basil S. Yanakakis

Six Beacon Street

Boston, Massachusetts 02108

Counsel for Petitioner

FOOTNOTES

lRosa v. INS, 440F2d 100 (1971). The

holding was restated in the present case.

2tn the case at bar, the record dis-

closes that the deportation order by the

immigration judge was issued on October 30,

1975. The petitioner filed a Motion to Re-

open on March 3, 1976. The denial of the

Motion by the Board of Immigration Appeals

was entered on September 30, 1976 and the

petitioner filed her petition for judicial

review on October 12, 1976.

3a11 these qualifications, it is con- ‘

tended, are met by this petitioner.

4vhis requirement is not applicable to

the present petitioner.

“This listing is known as the "Exchange-

Visitor Skills List", State Department Public

Notice 356, 37 Federal Register 8099, (April

25, 1972) and is applicable “only to aliens

who obtain exchange visitor visas or status

after the effective date of the public notice

or of subsequent designations". C. Gordon and

H. N. Rosenfield, Immigration Law and Procedure

8 6.89, p. 6-56. The present petitioner held

exchange visitor status as of 1968. .

®6See Gordon and Rosenfield, s 6.8g,° pp.

€-57, 6-58 & 7.9c, pp. 7-92, 7-93.

7Giova v. Rosenberg, 379 US 18 (1964);

.ueng I..> Kwok Vv. INS, 392 US 206, 217 (1967).

—_— -

aSa

APPENDIX

Opinion of United States Court of Ap-

peals for the First Circuit

Petitioner's Petition for Modification

of Language of Decision

Memorandum and Order on Petition for

Modification of the Opinion

United States Court of Appeals

for the First Circuit

No. 76-1474

AMELIA ©. BONSUKAN,

Petirnioxen, ApreLLANt,

v.

UNITED STATES

IMMIGRATION AND NATURALIZATION SERVICE

and

PATRICK F. COOMEY,

DISTRICT DIRECTOR, INS, BOSTON, MASS.

Resronpents, Arve Lees.

Before

Moore,* Axupricu and Campne.y, Circuit Judges.

Basil S. Yanakakis on bricf for petitioner.

Rez Young, Attorney, Department of Justice, with whom Philip Witlens,

Chief, Government Regulations and Labor Seetion, Criminal Division,

and James I’. Morris, Attorney, Department of Justice, were on brief, for re-

spondent.

April 25, 1977

Avpricu, Sentor Circuit Judge. This is a petition, pur-

suant to 8 U.S.C. § 1105a, to review a decision of the

Board of Immigration Appeals denying petitioner’s mo-

tion to reopen proceedings which had resulted in an order

of deportation, lectitioner, a Philippine national, entered

the country in 1968 as a noninmigrant exchange visitor,

28 U.S.C. § 1101(a)(15)(J), authorized tv remain for two

years. She stayed beyond that time, but respondents did

not press her, apparently beeause an application for a

sixth preference visa, 8 U.S.C. § 1155(a) (6), was approved

* Of the Sccond Circuit, sitting by designation.

2 BONSUKAN V. INS

and she was waiting for a visa number, Thereafter, in

1974, it came to respondents’ attention that petitioner

was no longer employed by the hospital which had filed

her sixth preference petition,’ and deportation proceed-

ings were initiated.

Petitioner attended the deportation hearing, with coun-

sel, but obtained a three weeks continuance for consulta-

tion, On the date that had been set petitioner reappeared,

but without counsel, stating that she had been unable to

locate him. She was offered a further continuance, but,

after an off-the-record consultation with someone (other

than the immigration judge) she said she would proceed

without counsel. At the hearing she then conceded her

deportability, and waived appeal. Tausing here, if this

was, in fact, an overconcession, it seems extraordinary

that in the three weeks continuance granted for confer-

ring wit ecunsel he had left her with the opinion that

she had no ¢cefense.

Until by reply bricf in this court counsel never ex-

plained his absence from tlie hearing. He now says he

had a ‘‘philanthropic’’ engagement. If not a dereliction

of his obligations, this was, at best, no reason for not

informing his client, or an excuse for not notifying the

immigration judge, in advance of the hearing. However,

it cannot justify the present contention that this irretrieva-

bly lost petitioner her right of appeal, which, in turn,

lost her her right to review in this court the correctness of

the immigration judge’s initial order of deportation. Rosa

v. INS, 1 Cir., 1971, 440 F.2d 100; Gena v. INS, 5 Cir.,

1970, 424 F.2d 227. Rather than secking, at an carly op-

portunity, to right whatever wrong his client could be

thought to have suffered because of his absence from

1 Petitioner had changed jobs, and another sixth preference petition was

filed on her behalf by her new employer, which, under the regulations, 8 C.F.R.

§ 204.6, lost her her place in line and required her to begin anew to wait for a

visa number.

OPINION OF THE COURT 3

the hearing, counsel waited five months and then filed a

motion for reconsideration that contained no mention of

what is now argued to be an uneonstitutional denial of

counsel, and an ‘‘improperly held hearing.’’ Quite apart

from the fact that petitioner appears to be an intelligent

woman, who freely refused an offer for a further continu-

ance, to claim now that she was prejudiced by lack of

counsel is altogether too late.*

Our review, accordingly, is limited to the question whether

to deny the petition to reupen and grant a suspension of

deportation pursuant to 8 U.S.C. § 1254, was an abuse of

discretion. The Board of Immigration Appeals ruled

that petitioner lad not made a suflicient showing of ‘‘ex-

treme hardship,” 8 U.S.C. § 1254(a)(1), and, in any

event, was ineligible for suspension because she entered

the country as an exchange visitor, 8 U.S.C. § 1254(f).

We find no abuse on either score. The ruling on hard-

ship was well within the Board’s discretion. Pelaez v.

INS, 5 Cir., 1975, 513 F.2d 303, cert. denied, 423 U.S.

892; Aasravi v. INS, 9 Cir., 1968, 400 F.2d 675. Peti-

tioner’s claim that the granting of her sixth preference

petition ‘‘took her out of the exchange visitor status,’’

and hence removed the bar of section 1254(f), is offered

without any support in the statute, regulations, or cases.*

Nor do we find any abuse in the Board’s failure to credit

= Counsel says in his extensive brief that he raised this, and the political

matter, post, in his brief before the Board of Immigration Appeals on the

appeal from the denial of reconsideration. The record does not show whether

this is so or not. Even if true, it is elemental that such matters, particu-

larly factual matters, should have been made before the immigration judge,

and could not be raised for the first time on appeal.

%We need not decide whether, under the 1970 amendment to & U.S.C,

§ 1182(e), petitioner is subject to the two year foreign residence require-

ment before she can obtain a visa, a matter which coursel sought to raise

for the first time at oral argument, since section 1254(f) explicitly bars

the remedy of suspension of «deportation to any exchrage visitor. Even if

petitioner is not subject to the two year requirement, we could not con-

sider it an abuse for respondents to decline, in their discretion, to allow pe-

titioner to remain in the United States while awaiting a visa. Bowes v. INS,

9 Cir., 1971, 443 F.2d 30; United States cx rel. Fen v. Esperdy, 2 Cir., 1970,

423 F.2d 6.

4 BONSUKAN V. INS

petitioner’s claim that she would be subject to political

persecution if deported to the Philippines. Petitioner

offered no support for this elaim in the proeecdings be-

low. Her counsel now seeks to excuse this failure with

the observation that ‘‘the threat of political persecution

is difficult to prove,’’ and attempts to establish the case

by submission of an affidavit in this court, Hf is clemen-

tary that this attempt comes too late, sce 8 USC. § 11058

(a) (4), even were we impressed by the showing, which

we are not.

This is a wholly meritless petition, and it is only with

reluctance that we do not assess respondents’ attorney’s

fees as costs, NLRB v. Smith &@ Wesson, 1 Cir., 1970,

424 F.2d 1072, and charge them to petitioner’s counsel

personally, 28 U.S.C. § 1927.

Petition dismissed.

Adm. Office, U.S. Courts — Addison. C. Getchell, Inc. Legal Printers Boston

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Amelia O. Bonsukan, )

Petitioner, Appellant )

Vv. ) No. 76-1474

Immigration and Naturalization )

Service, et al.

)

Respondents, Appellees

PETITION FOR MODIFICATION OF LANGUAGE

OF DECISION

Petitioner respectfully requests modifi-

cation of the language of a decision rendered

by this Court on April 25, 1977. The Petitioner

files this petition with the hope that your

Court will change certain language of its deci-

' sion which may have an adverse effect upon the

professional career of her counsel and presents

your Petitioner's case as meritless.

The Petitioner believes that her counsel

is innocent of any wrongdoing or negligence in

handling her case. On the contrary, the Peti-

tioner's counsel always acted with the approval

and consent of the Petitioner and after consul-

tations with her. The Petitioner's counsel is

a Professor of Law and a lawyer who already has

been unfairly hurt by adverse publicity of the

Court's decision relating to the counsel's act-

ivities (See, Massachusetts Lawyers Weekly, May

2, 1977, p. 7). The Petitioner believes that

your Court does not purport to destroy the repu-

tation of innocent counsels who undertake to de-

fend their clients' rights to the best of their

ability. This is especially true when such coun-

sels base their case and arguments on deci-

sions of other Federal Courts even if your

Court does not accept their findings.

The Petitioner's counsel has helped the

Petitioner for three years, successfully re-

presenting the Petitioner before the Immigra-

tion and Naturalization Service (See, e.g.

Sixth-preference petition approved by INS in

1974 through counsel's efforts. See also,

Delays of departure granted by the Service to

the Petitioner through her counsel's efforts).

The Petitioner's counsel represented her with

great sacrifice of time and money which so

generously he sustained on behalf of your Pe-

titioner (See, Afssdavet filed herewith by the

Petitioner).

The Petitioner was not given the opportu-

nity before to explain that when she said to

the Immigration Judge that she could not loc-

ate her attorney she meant that he was not a-

vailable at that time. She was, however, aware

and informed of his whereabouts. The Petition-

er may be an intelligent person but before the

Immigration Judge she was totally confused and

fearful. The possibility that after seven years

of productive life in this country she might be

deported had an impact upon her performance be-

fore the Immigration Judge, which performance

may have unjustifiably given the impression

that her counsel had derelicted his obligations

toward her.

1. Petitioner, therefore, respectfully re-

guests that the language of the decision

"Pausing here, if this was, in fact, a’

overconcession, it seems extraordins y

that in the three weeks continuance gra-

nted for confering with counsel he had

left her with the opinion that she had

no defense.

Until by reply brief in this court

counsel never explained his absence from

the hearing. He now says he had a “phil-

=2u

anthropic"™ engagement. If not a dere-

liction of his obligations, this was, at

best, no excuse for not notifying the im-

migration judge, in advance of the hear-

ing."

be deleted for the following reasons:

Petitioner was informed that her counsel

would be out of town in Washington, D.C. for

one week working as Vice-Chairman of AHEPA

Educational Foundation. Petitioner was not

only notified by her counsel of his impending

absence but she fully consented and agreed to

his absence and she was requested by her counsel

to notify the Immigration Judge that he would

be unable to return to Boston in time for the

hearing. Also, the member of Congressman O'Neil

"s staff who accompanied her to the hearing and

who knew the Immigration Judge was also noti-

fied. Counsel's understanding was that the Im-

migration Judge would have granted a short de-

lay until counsel arrived from Washington. This

view was based on past practices by the same

Immigration Judge who has granted such post-

ponements to Petitioner's counsel and other at-

tornies in similar circumstances. (See, Af-

fidavit submitted by Petitioner.)

2. Petitioner further requests that the

paragraph

"This is a wholly meritless petition,

and it is only with great reluctance

that we do not assess respondents'

attorneys fees as costs, ... and

charge them to petitioner's counsel

personally"

be deleted for the following reasons:

Although the Petitioner respects the de-

cision of your Court and is fully aware of our

a3o

Constitutional process of government, she

does, however, claim that her petition was

meritorious for the following reasons:

The Petitioner was hoping that your Court

would accept jurisdiction for the Petition to

Review, such hope based upon a decision of the

Ninth-circuit Court of Appeals case. In the

Bregman v. INS case, 351 F2d 491, the Court de-

cided that action for review was timely if the

Motion to Reopen was made within six months

from the final deportation order and review

proceedings were brought within six months

from the denial of the Motion to Reopen, as

Petitioner's counsel argued in his oral pre-

sentation before this Court.

Furthermore, Petitioner was hoping with

the Petition for Review to clarify this point

since the facts of her case were similar to

the Bregman decision. In addition, Petition-

er's counsel waited five months before filing

a motion for reconsideration becayge he was

instructed by the Petitioner not to proceed

for judicial review before an answer be given

on a private bill submitted to the Congress

on behalf of the Petitioner. (See, Letter of

Congressman Joshua Eilberg, Chairman of Sub-

committee on Immigration of the United States

House of Representatives of February, 1976 and

letters of Congressman James Burke of February

27, 1976 and March 18, 1976, all in the record

of the proceedings).

Furthermore, the Petitioner believed that

the Board of Immigration Appeals did not exer-

cise its discretion when it decided that the

Petitioner was ineligible for the remedy of

Suspension of Deportation. That was, accord-

ing to the Petitioner, an erroneous finding.

As the ninth-circuit Court of Appeals decided

in a similar case; where denial of discretion-

~

ary relief is predicated on several factors,

the inclusion of one improper factor may make

the entire determination defective. Wang v.

INS, 413 F2d 286 (1969). The Petitioner sim-

ply hoped that your Court might take a similar

position.

Finally, it was the Petitioner's conten-

tion and belief that the Petitioner not only

was not subject to the two year residency re-

quirement but also that 8 USC 1254(f) was not

applicable in her case. The Petitioner thought

that section 1254(f) was not applicable in the

Petitioner's case becasue that section bars the

remedy of Suspension of Deportation to an ex-

change visitor who was admitted to the United

States pursuant to Title 8 USC 1101l(a) (15) (J).

But section 1101(a) (15) (J) was not thought ap-

plicable in the Petitioner's case because when

ammended in 1970 it specifically eliminated

cases like Petitioner's from the requirements

of the statute. The Petitioner, reading the

statute and relying upon an interpretation of

the section by Gordon & Rosenfield at section

6.8g at pp. 6-53 to 6-58, concluded with the

above-mentioned authors, that section 1254(f)

did not bar the remedy of Suspension of Depor-

tation to her, and hoped that your Court would

agree with the Petitioner.

Respectfully submitted for

the Petitioner,

s/

aeceee Yanakakis, Esq.

-S-

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 76-1474

AMELIA O. BONSUKAN,

Petitioner, Appellant

Vv.

UNITED STATES IMMIGRATION AND NA-

TURALIZATION SERVICE, et al.,

Respondents, Appellees

Before

Moore,* Aldrich and Campbell, Circuit Judges.

MEMORANDUM AND ORDER

on

PETITION FOR MODIFICATION OF THE OPINION

Entered: May 18, 1977

Per Curiam. Petitioner, although strict-

ly it should be petitioner's counsel, since

only he is affected by the language complained

of, has filed a petition to modify the opinion.

We find it difficult to reconcile petitioner's

affidavit with the record. It is hard to think

that petitioner, who had been in this country,

and employed in English speaking hospitals, for

seven years, in responding "I can't locate him,"

*Of the Second Circuit, sitting by designation.

i te

to the question "Is he (your attorney) here?"

meant by this, "I know where he is, but he

told me he could not come, and for me to tell

you." Nor does the affidavit explain the even

more important matter, how, after three weeks

for investigation, her counsel could have left

her with the belief that she had no defense to

deportability. Having failed to request a con-

tinuance in advance, counsel had no expectation

that the proceeding would not go forward in his

absence.

The petition for modification is denied,

except that we strike the third and fourth

sentence from footnote two, and we strike the

third and fourth sentences of the paragraph

commencing on slip page two (but not the cita-

tions) and substitute in place of said two sen-

tences, the following.

"Even if, as now contended on a petition

to this court for modification of our opinion,

he did inform her, and requested her to inform

the immigration judge, she did not do so, though

given the opportunity. It was improper proce-

dure, particularly where counsel had obtained

one continuance to a date certain, merely to

tell his client to appear at the hearing and re-

quest another, especially, as is now suggested,

she had inadequate command of English. In any

event, his excuse cannot justify the present

contention that this irretrievably lost her her

right of appeal, which, in turn, lost her her

right to review in this court the correctness

of the immigration judge's initial order of de-

portation. Chung Chaw Wa v. INS, 1 Cir., 1969,

407 F.2d 854; cf." Nes

By the Court:

/s/ Dana H. Gallup, Clerk