Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1987)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1987)


No. 88-7349.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 3, 1989.Decided Nov. 28, 1989.

Before GOODWIN, Chief Judge, and SCHROEDER and BEEZER, Circuit Judges.


Petitioner Jose Sotelo seeks review of a decision of the Board of Immigration Appeals (BIA) denying him relief from deportation under Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c). The BIA affirmed the decision of Immigration Judge Angel M. Cosme denying the requested relief and ordering Sotelo deported to Mexico.

Sotelo is a thirty-one-year-old native and citizen of Mexico who entered the United States on March 29, 1966, as a lawful permanent resident alien. On November 13, 1987, he was issued an order to show cause why he should not be deported under Section 241(a) of the INA, 8 U.S.C. § 1251(a) (4), which renders deportable any alien convicted of committing two or more felonies not arising out of a single course of conduct.

Sotelo appeared at his March, 1988, deportation hearing unrepresented, but the immigration judge (IJ) decided to proceed nevertheless, after concluding that Sotelo had had ample opportunity to secure representation. At the hearing petitioner admitted all of the allegations contained in the order to show cause. Upon the basis of petitioner's admissions, the IJ determined that deportability had been established by clear and convincing evidence.

Petitioner then submitted an application for a waiver of deportation under Section 212(c) of the INA, 8 U.S.C. § 1182(c) (1952). Applying the framework for such determinations set out in Matter of Marin, 16 I & N Dec. 581 (BIA 1978), the IJ concluded that the adverse aspects of Sotelo's case were not outweighed by the evidence of factors favoring a grant of relief. The BIA subsequently dismissed petitioner's appeal, holding that the IJ's decision comported with the requirements of Marin, and that Sotelo had not been denied his statutory right to counsel by Judge Cosme's refusal to grant a second continuance.

Petitioner argues that the BIA committed an abuse of discretion in dismissing his appeal from the IJ's decision denying him relief under Section 212(c). In order to provide a framework for the equitable application of discretionary relief, the BIA in Marin identified factors for IJs to consider in making decisions under Sec. 212(c). We find no evidence in the record to support petitioner's contention that the IJ in this case failed to carry out the balancing analysis required under Marin. Although Sotelo has lived over two-thirds of his life in the U.S. and has family here, in light of his substantial criminal activity in recent years, a grant of discretionary relief did not appear to be in the public interest. We find no abuse of discretion on the part of the BIA in upholding the IJ's decision.

Sotelo also argues that the rulings of the IJ during the deportation hearings effectively denied him his statutory right to counsel and violated his right to due process under the Fifth Amendment. These claims are without merit. When Sotelo first appeared before Judge Cosme in December, 1987, he was granted a reduction in his bond and a four-month continuance to allow him time to seek legal representation. We find no error in the IJ's refusal to continue the hearing a second time after Sotelo's failure to take advantage of the first continuance to secure counsel. The Sixth Amendment's guarantee of the right to counsel is inapplicable to deportation hearings. Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977). There is no evidence that, despite the absence of counsel, Sotelo's right to a "full and fair hearing" under the Fifth Amendment was violated. See Colindres-Aguilar v. INS, 819 F.2d 259, 260-61 n. 1 (9th Cir. 1987).



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