Digna Ballenilla-gonzalez, Petitioner, v. Immigration and Naturalization Service, Respondent, 546 F.2d 515 (2d Cir. 1976)

Petitioner overstayed her nonimmigrant student visa and was ordered deported by a Special Inquiry Officer of the Immigration and Naturalization Service ("INS") on the basis of her admission of deportability. The Board of Immigration Appeals affirmed the finding that she had overstayed her visa, but granted her permission to depart voluntarily in lieu of deportation. Instead of leaving the country, petitioner brought this appeal, contending that the Special Inquiry Officer and the INS had deprived her of her constitutional and statutory rights to counsel, that the findings of the Special Inquiry Officer were arbitrary and capricious, and that the Board had unconstitutionally deprived her of her statutory right to appeal by requiring that she choose between appeal and voluntary departure. Finding no merit to her contentions, we deny the petition for review.

Petitioner, a citizen of the Dominican Republic, entered Puerto Rico under a nonimmigrant student visa for the purpose of attending tenth grade at Antillian College, a private religious high school in Puerto Rico. Her visa was due to expire May 30, 1974, when the school term ended. Over Christmas vacation, she went back to the Dominican Republic and became pregnant. Returning to Puerto Rico she did not go back to the Dominican Republic at the end of the school term but instead went to visit relatives in Waterbury, Connecticut, where her child was born on September 15, 1974.

On October 8, believing herself entitled to stay in the United States as a result of the birth of her child there, petitioner went to the INS to apply for permanent residence. She was referred to a deportation investigator who, after advising her that she had the right to remain silent and the right to have a lawyer present, asked her when she had entered the United States, when her visa had expired, and whether she had requested permission to remain beyond the original expiration date. Although her answers were somewhat confused,¹  they provided the INS with the basis for its institution of deportation hearings, which were commenced by sending her an Order to Show Cause and Notice of Hearing written in English.

On November 18, 1974, petitioner appeared at the hearing as scheduled. Neither she nor the Service was represented by counsel. The Special Inquiry Officer told her that the hearing was a deportation hearing and asked her whether she wanted a lawyer. After a certain amount of indecision, she decided that she would not need one.²  Because it appeared that petitioner did not fully understand the Order to Show Cause, the Special Inquiry Officer had it explained to her in Spanish. Pleading to the allegations of the Order to Show Cause, petitioner then admitted that she was not a citizen, that she had stayed beyond the May 30, 1974, expiration date of her visa without INS authority, and that she was deportable.³  Since under INS regulations such admissions constitute a sufficient basis for a finding of deportability, the Special Inquiry Officer then turned to the question of whether petitioner would rather be deported or leave voluntarily. When she stated that she did not have the funds needed for voluntary departure, the Officer ordered her deported. He further informed her that she had the right to appeal to the Board and that if she wanted help with the appeal she could turn to the Waterbury Legal Aid Society, which she did.

With the help of the Legal Aid Society petitioner filed an affidavit with the Board on July 5, 1975, in which she stated that before leaving Puerto Rico for Waterbury, she had talked to one Monica de Lescay, who was in charge of immigration affairs for Antillian College, that de Lescay had said that she would take care of all of the forms necessary for an extension of petitioner's visa, and that petitioner was under the impression that everything had been taken care of by the school, so that she had permission to remain until September 1974. She further stated that while in Waterbury, where she received prenatal care, she was told that because of her pregnancy she would not be able to go back to the Dominican Republic in September, that the hospital would send a letter to the INS so stating, and that the letter had in fact been sent.⁴  She was therefore under the impression that she had been granted permission to remain because of her inability to travel.

The affidavit further stated that as soon as her child was born, petitioner went to the INS to apply for permanent resident status, being under the impression that her American child gave her the right to do so, and stated that on November 18, 1974, she went to the INS, believing that the appointment was to fill out residency papers, and that she did not then believe she needed a lawyer because she "did not think that there was any problem with my staying." After the interrogation was completed, the affidavit stated, she went to the Waterbury Legal Aid Society, where she was told that the paper given to her by the INS was a deportation order and that the hearing had been a deportation hearing. Petitioner's affidavit stated that had she known she was in danger of being deported, she would have asked for a lawyer and, not being able to afford one, would have gotten help from the Waterbury Legal Aid Society.

On July 25, 1975, still waiting for the Board to hear her appeal, petitioner married an American citizen, who filed a petition to have her reclassified and for an immigrant visa. No action was taken on the spouse's petition prior to the Board's decision.⁵ 

The Board heard the appeal on September 24, 1975. Petitioner sought a rehearing before the immigration judge, this time with counsel. She argued that there remained unresolved questions as to whether she had submitted the appropriate documentation to allow her to stay beyond May 30, 1974, whether the INS had disposed of any such application properly, and whether the INS did not have an affirmative duty to investigate the merits of her application for permanent resident status instead of starting deportation proceedings immediately. The Board denied a rehearing, holding that petitioner had not been deprived of the right to counsel at the hearing and that she had shown no prejudice from lack of counsel. Since petitioner had sufficient funds she was granted 30 days in which to depart voluntarily, but if she failed to do so the Board's order was to constitute an order to depart. After allowing the permission for voluntary departure to lapse, petitioner brought this appeal.

DISCUSSION

Turning first to petitioner's contention that the Board's order was arbitrary and capricious, § 242.16 of the Code of Federal Regulations ("CFR"), Title 8, states that if, after the special inquiry officer advises a potential deportee of her rights and of the charges against her,⁶  she, in response to questions, admits (as petitioner did here) the factual allegations of the order to show cause and admits deportability, and "the special inquiry officer is satisfied that no issues of law or fact remain," then the officer may determine that deportability has been established.⁷  We do not believe that a decision based on such admissions is arbitrary or capricious under relevant statutory and regulatory standards.⁸ 

Petitioner argues, however, that because she has disavowed those pleadings by affidavit and stated facts which might bring into question the validity of those pleadings, the decision has nevertheless thereby been rendered arbitrary and capricious. As is clear from the relevant provisions of CFR, however, a motion for rehearing, whether presented to the Board, as it was here, or to the Special Inquiry Officer, must state the new facts to be proved at the reopened hearing.⁹  Implicit in this requirement is the assumption that no such motion will be granted unless the facts alleged would be sufficient, if proved, to change the result. Here, even assuming all of the allegations and suppositions in petitioner's affidavit to be true, she still would not have had permission to remain in this country beyond the birth of her child on September 15, 1974, and thus still would have been deportable at the time of her hearing on November 18, 1974. Under the circumstances, we cannot take issue with the Board's refusal to order a rehearing on the basis of petitioner's new factual allegations. We therefore hold that the Special Inquiry Officer's finding of deportability, as affirmed by the Board, was neither arbitrary nor capricious.

Petitioner argues that in any event she is entitled to a rehearing because at the original hearing she was deprived of a constitutional right to appointed counsel, which she claims as a matter of equal protection and due process under the Fifth Amendment, and of her statutory right to counsel at no expense to the government pursuant to 8 U.S.C. § 1252(b) (2) and 8 C.F.R. § 242.10.

To reach the question of the extent of petitioner's statutory and constitutional rights to counsel, however, we would have to find that she did not herself waive any such rights. This we cannot do. As required by 8 C.F.R. § 242.16, the Special Inquiry Officer informed petitioner of her right to counsel at no expense to the government and asked her whether she wished to proceed with or without a lawyer. Petitioner was undecided but, believing that she could not be deported since she had given birth to an American child, ultimately decided that she would proceed without one. Thus she clearly waived any right to a lawyer, albeit on a mistaken impression of the law. We are not prepared to state that every waiver of a right to counsel given under a misapprehension of the state of the law must be upheld as valid. However, where (as here) a potential deportee, after obtaining qualified legal counsel, fails even to allege facts which could, had an attorney been available to aid in their proof, have changed the outcome of the hearing, such a waiver will be deemed effective.¹⁰  It is significant that her Legal Aid counsel, after reviewing the case, apparently concluded that no relevant new information could be adduced that might establish a right to remain in the United States. Being unable to show any prejudice by reason of her lack of counsel at the hearing, he accordingly did not move to reopen the hearing but chose instead to appeal to the Board, seeking relief based on mitigating circumstances and alleged denial of due process at the deportation hearing. For this reason we need not reach the constitutional and statutory questions petitioner attempts to raise.

Finally petitioner argues that the Board, by giving her only 30 days within which to depart voluntarily at no expense to the government, placed an unconstitutional burden upon her exercise of her statutory right to obtain judicial review, see 8 U.S.C. § 1105a, since a petition for review could not be prepared, briefed, heard and decided within that period and, if she departed the United States, she would no longer be entitled to judicial review, see Burrafato v. United States Department of State, 523 F.2d 554 (2d Cir.), cert. denied, 423 U.S. 920, 96 S. Ct. 259, 46 L. Ed. 2d 246 (1975). The effect of the 30-day limitation, petitioner argues, was therefore to deny her due process by chilling her exercise of her right to appeal. We disagree.

Voluntary departure in lieu of deportation is not something which a deportee is entitled to as a matter of right. It rests within the Attorney General's sound discretion, see 8 U.S.C. § 1254(e), 8 C.F.R. § 244.1-2. Of course this discretion should not be used by the Board to insulate its decisions and procedures from constitutional or statutory challenge. If an alien has a facially meritorious claim going to the validity of a deportation order, he or she should not be discouraged from seeking review by the offer of voluntary departure on terms that will evaporate if the appeal is pursued. The result would be to penalize an alien in the bona fide, non-frivolous exercise of a constitutional right.

On the other hand, our government should not be forced to tolerate the practice, all too frequently adopted by aliens once they become subject to a deportation order, of using the federal courts in a seemingly endless series of meritless or dilatory tactics designed to stall their departure from the country as long as possible. As we have recently observed, see Acevedo v. I.N.S., 538 F.2d 918 (2d Cir. 1976), these efforts are frequently so frivolous as to constitute a misuse of civil process. In such cases, as we noted in Fan Wan Keung v. Immigration and Naturalization Service, 434 F.2d 301, 304-05 (2d Cir. 1970), quoting with approval the unreported decision of the Board of Immigration Appeals in Wong Ching Fui, dated August 21, 1969:

"The purpose of authorizing voluntary departure in lieu of deportation is to effect the alien's prompt departure without further trouble to the Service. Both the aliens and the Service benefit thereby. But if the alien does not depart promptly, so that the Service becomes involved in further and most costly procedures by his attempts to continue his illegal stay here, the original benefit to the Service is lost. And if, after years of delay, he is again rewarded with the opportunity for voluntary departure which he has previously spurned, what incentive is there for any alien similarly circumstanced to depart promptly when first given the opportunity?"

In Fan Wan Keung we held that the Service's refusal to grant a second permission voluntarily to depart after the alien had engaged in dilatory tactics to delay deportation was not an abuse of discretion.

Applying these principles here, the various interesting constitutional issues which petitioner would now like to raise are precluded by the record, which demonstrates that she received a fair hearing, waived her right to counsel and was not prejudiced by her waiver since the undisputed facts point to but one conclusion, that she was clearly deportable. At no time has she or her counsel ever made an offer to prove any facts indicating that she had a right to remain. Thus her appeal was unquestionably meritless. Furthermore, upon applying to the Board for the right of voluntary departure in lieu of deportation neither she nor her counsel expressed any intention to seek review. They did not seek from the Board an extension of her departure date, see 8 C.F.R. § 244.2. Nor did they follow the procedure of filing a petition for review within the 30-day period fixed by the Board for voluntary departure and requesting us for a stay of the Board's order pending appeal. These procedures enable the Board or this court, in cases where a prima facie meritorious basis for appeal is shown, to permit its being pursued without prejudice to voluntary departure.

In short, instead of facing the undisputed facts of her situation, her counsel sought to raise constitutional issues without any meritorious factual basis. Such maneuvers do not entitle her as a matter of right to another chance at voluntary departure. On the other hand, it may be said in her favor that, despite the meritlessness of her cause, she has moved expeditiously and in apparent good faith in appealing from the Special Inquiry Officer to the Board and from the Board to this court. Moreover, she is now married to an American citizen, her child is a U.S. citizen by virtue of its birth here, and her husband has filed a petition, presumably still pending, for her reclassification and for the issuance to her of an immigrant visa. In view of these circumstances, although we deny her application for reinstatement of her right to voluntary departure, we do so without prejudice to the Board's exercise of its authority, see 8 C.F.R. § 244.2, to reinstate and extend the time within which she may depart voluntarily.