Unpublished Disposition, 855 F.2d 860 (9th Cir. 1985)
Annotate this CaseChing Ming TAO, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE Respondent.
No. 87-7097.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 18, 1987.* Decided Aug. 1, 1988.
Before FLETCHER, REINHARDT and BRUNETTI, Circuit Judges.
MEMORANDUM**
Ching Ming Tao petitions for review of the Board of Immigration Appeals (BIA) decision affirming Tao's deportation and denial of his request for voluntary departure. He challenges only the denial of voluntary departure.
FACTS
Tao, a native and citizen of Taiwan, entered the United States on October 15, 1982 on a six month non-immigrant visa. On April 19, 1985, Tao was arrested in Los Angeles by the Immigration and Naturalization Service (INS), which issued an Order to Show Cause why he should not be deported for having overstayed his visa. AR 67-68. Tao was brought to Florence, Arizona, for his deportation hearing, which took place on April 25, 1985.1 It appears from the record that Tao received no formal notice of his hearing date; in any event, the hearing took place only 6 days after issuance of the show cause order, in clear violation of 8 C.F.R. Sec. 242.1(b), which required notice "of the time and place of the hearing not less than 7 days before the hearing date."2
At the deportation hearing, Tao was not represented by counsel. 8 C.F.R. Sec. 242.1(c) requires the INS to furnish an alien under deportation proceedings information on "the availability of free legal services programs ... located in the district where his deportation hearing will be held." Tao apparently was given a list of such legal services for Los Angeles, but not for Florence, Arizona. AR 49.3 At the hearing, the following colloquy ensued between Tao, whose English was such that he required the assistance of an interpreter, and the Immigration Judge (IJ):
[IJ]: .... First of all, you have the right to be represented by a lawyer, of your own choice, at no expense to the government. And what that means, is, if you'd like to have a lawyer, its up to you to make the arrangements to have the lawyer here. The government should have provided you with a list of organizations that have attorneys that might be willing to represent you free. Also, a paper that describes your appeal rights in the hearing. Did you get that paper?
[Tao]: I understand.
[IJ]: Did he get the list of organizations and the other paper?
[Tao]: Yes, I got that when I was in Los Angeles.
[IJ]: Alright. If you'd like an opportunity then to contact someone on that paper, or you'd like to contact some private lawyer so that you could be represented in the hearing, I will continue your case a few days for that purpose.
[Tao]: He wishes to have an attorney to represent him but he does not have the list with all the attorney's [sic].
[IJ]: He does wish to have an attorney represent him?
[Tao]: He said, I will voluntary to depart [sic]. I do not need to have an attorney to represent me. All I need to have three or four days extra.
[IJ]: Alright. Then do you wish to speak for yourself in this proceeding?
[Tao]: Yes, I do.
[IJ]: Alright, then would you please stand and raise your hand to be sworn....
AR 49-50.4
Tao then proceeded to request voluntary departure, but presented no evidence on his behalf. The government objected to voluntary departure for Tao, presenting evidence of misdemeanor convictions for carrying a loaded firearm in a public place and failure to appear for a traffic citation, as well as evidence that Tao was carrying a false driver's license and a social security card bearing another name. Although these factors did not bar Tao from statutory eligibility for voluntary departure, the IJ denied voluntary departure as a matter of discretion on the basis of this evidence. AR 45-46.
On appeal to the BIA, Tao was represented by counsel, who did not raise any claims of due process violations at the hearing level. Instead, counsel tried to supplement the record with facts (or "equities") that could weigh in Tao's favor in considering a discretionary grant of voluntary departure. The BIA affirmed the IJ's denial of voluntary departure. Tao, represented by new counsel before our court, now claims that 1) the BIA abused its discretion in denying voluntary departure; 2) Tao's due process rights were violated by the IJ; and 3) Tao's counsel before the BIA was so ineffective as to render his administrative appeal violative of due process.
DISCUSSION
Tao contends that the BIA abused its discretion in denying his request for voluntary departure. Even if an alien is, like Tao, statutorily eligible for voluntary departure, the BIA has broad discretion to deny that relief. In reviewing the BIA's decision for an abuse of discretion, we must assure ourselves that the BIA has "heard, considered, and decided" the issue on the basis of all the relevant factors, both favorable and unfavorable. See Villanueva-Franco v. INS, 802 F.2d 327, 329-30 (9th Cir. 1986); Dragon v. INS, 748 F.2d 1304, 1306 (9th Cir. 1984).
It is clear from this record that the BIA could not have adequately "heard, considered, and decided" Tao's voluntary departure request. Tao, unrepresented by counsel at his hearing before the IJ and burdened by obvious language difficulties, presented no evidence of the favorable equities that might have informed the IJ's exercise of discretion. The IJ made no discernible effort to elicit such information. Tao appeared to be completely unaware that he carried the burden to present evidence in support of the IJ's favorable exercise of discretion.5 The IJ did not inform Tao of this burden. Cf. Castro-O'Ryan v. INS, 821 F.2d 1415, 1420 (9th Cir. 1987) (alien was prejudiced by lack of counsel at hearing where he was unaware of complexity of factual and legal issues facing him and thus unable to correct IJ's errors and develop factual record). Thus, the record before the BIA contained no evidence favorable to Tao, but consisted only of the INS trial attorney's evidence against Tao and of a hearing transcript which revealed an apparent denial of Tao's right to counsel.
On appeal to the BIA, Tao was represented by counsel, who attempted to submit evidence of favorable equities, including Tao's marriage to a permanent U.S. resident, his employment record, character references, and clarification of the misdemeanor convictions and allegations of carrying false documents.6 AR 8, 23-37. While this evidence may well have favorably impressed the IJ had it been presented at Tao's hearing, it was not part of the record on appeal to the BIA. The BIA has de novo review of the record established before the IJ, but it is not empowered to take new evidence. 8 U.S.C. § 1252(b) (deportation determined on "record made in a proceeding before a [n IJ]"); Matter of Fedorenko, Int.Dec. No. 2963 (BIA 1984) ("The [BIA] is an appellate body whose function is to review, not to create, a record."). While the BIA decision contains a cryptic reference to "the equities which have been set forth"--suggesting, perhaps, a "hypothetical" consideration of Tao's new evidence--the decision also observes that " [t]he record before us, however, does not contain proof of the respondent's marriage or of his claimed wife's lawful permanent resident status." AR 5. From these ambiguous statements, we cannot say that the BIA "heard, considered, and decided" the favorable equities.
In sum, the record before us indicates that the BIA was precluded from considering all the factors, both favorable and unfavorable.7 We find that the BIA abused its discretion in denying Tao's request for voluntary departure on this record. We REMAND for further proceedings consistent with this disposition.
Judge Brunetti concurs in the result.
The panel finds this case appropriate for submission without argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3
The INS frequently transfers arrested aliens to detention centers far from the place of arrest. The detention centers are typically located in remote areas with scant legal services available. See Orantes-Hernandez v. Meese, CV 82-1107 KN, C.D. Cal., April 29, 1988, paragraphs 87-89
Although an alien may request an expedited hearing, Tao did not do so. AR 68. The immigration judge also has discretion to schedule the hearing on shorter notice if "the public interest, safety, or security so requires," 8 C.F.R. Sec. 242.1(b), but the record indicates no such exercise of discretion here
A district court in California, in a class action involving Salvadoran refugees, has found that "INS routinely fails to make legal services lists available to aliens at its detention centers, including aliens who have been transferred to detention facilities from distant locations and who have only received lists specific to the locations where they were apprehended." Hernandez-Orantes v. Meese, supra, at p 72
Tao's responses to the IJ's inquiry regarding his wish to be represented by counsel raise more questions than they answer. He said both that he wanted an attorney and did not need one. Some of his answers are in the first person and some in the third, suggesting he may have answered some questions himself, while the interpreter answered others. It is unclear whether the interpreter was translating literally or imposing his own gloss on Tao's words. The record does not suggest answers
Tao's statement that he did not need counsel because he intended to depart voluntarily suggests that he thought such departure was a matter of right or at least available for the asking
Although the record shows a dismissal of the charge of carrying a concealed weapon in a vehicle, and a guilty plea to carrying a loaded firearm in public, AR 61, the IJ mistakenly indicated that Tao was convicted on both charges. AR 45-46
In addition, the INS trial attorney charged Tao with carrying a green card and social security card belonging to someone else, AR 56, and the IJ's decision cites Tao with carrying a social security card "in the name of yet another individual." AR 46. The other individual turns out to be Tao's then-fiancee, and, on appeal, Tao's counsel tried to explain that the woman had asked Tao to carry her ID cards for her. AR 8.
The fault for the incomplete state of the record cannot be placed on Tao, given the procedural errors that appear to have been made by the IJ. We do not consider whether Tao's right to counsel was in fact violated, because Tao's counsel on appeal to the BIA failed to raise that issue. Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987) (failure to raise before the BIA a "procedural error correctable by the administrative tribunal" constitutes a failure to exhaust administrative remedies as to that issue, thereby depriving this court of jurisdiction to consider it)
Nevertheless, the IJ's apparent violations of procedural due process undermined the factual record before the BIA and infect the entire deportation proceeding. The due process clause of the fifth amendment guarantees fundamental fairness of deportation proceedings. See, e.g., Mohsseni Behbahani v. INS, 796 F.2d 249, 250-51 (9th Cir. 1986); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1239 (9th Cir. 1979). The issue of the fundamental fairness of the BIA-stage of the deportation proceeding is put before us by two of Tao's claims. First, our review of the BIA's exercise of discretion necessarily overlaps to some extent with due process concerns in that it requires us to determine whether the BIA "heard, considered, and decided." See Villanueva-Franco, 802 F.2d at 330.
Because we decide the appeal on this ground, we need not reach the second of Tao's claims over which we have jurisdiction: ineffective assistance of counsel. Were we to do so, the result and much of the analysis would be the same. In order to prevail on an ineffective assistance of counsel claim, which is grounded on the fifth rather than the sixth amendment, the alien must show that he was prejudiced by counsel's performance such that the fairness of the proceeding was undermined. See Mohsseni Behbahani, 796 F.2d at 251; Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986). Tao's counsel before the BIA apparently failed to realize that a remand to the IJ was needed to get evidence of Tao's favorable equities into the record. Such a remand could have been obtained by arguing that Tao was denied his right to counsel at the hearing by inadequate notice of the hearing and of available legal services. Moreover, Tao's supposed "waiver" of counsel at the hearing was highly ambiguous on its face, and would probably not stand in light of Castro-O'Ryan, 821 F.2d at 1420 (invalidating alien's waiver of counsel where alien was not apprised of available factual and legal arguments). Compare Ramirez v. INS, 550 F.2d 560, 565 & n. 3 (detailing IJ's careful inquiry into alien's waiver of counsel) with AR 49-50 (Tao's "waiver"). The prejudice resulting from the ineffectiveness of Tao's appellate counsel was the failure to secure a remand to the IJ to complete the factual record.
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