Unpublished Disposition, 899 F.2d 19 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1987)

Manuel de Jesus RIVERA ROSA; Rosa Miriam Rosa Hernandez, Petitioners,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-7370.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 19, 1990.* Decided March 29, 1990.

Before GOODWIN, Chief Judge, and SNEED and FERGUSON, Circuit Judges.


MEMORANDUM** 

Manuel de Jesus Rivera-Rosa and Miriam Hernandez-Rosa, natives and citizens of El Salvador, petition for review of a denial of their request for asylum. The Rosas contend that they were denied due process because of ineffective assistance of counsel and denial of their right to counsel. We remand for a new hearing on the Rosas' request for asylum.

At their initial deportation hearing on September 14, 1987, the Rosas expressed their desire to be represented by counsel. Before proceeding with the continued hearing on the merits, the Rosas received a list of free legal services in the area and several continuances over a three week period to allow them an opportunity to obtain counsel. Despite these continuances, the Rosas were unable to find counsel that would appear at the deportation hearing or that would file a notice of appearance on their behalf. At the hearing, the Rosas asserted that a family member had retained an unnamed counsel who worked on their case but either failed to or refused to appear on their behalf at any of the proceedings.

On October 5, 1987, the deportation hearing was reconvened a third time; the Rosas appeared without counsel and agreed to proceed with the deportation hearing. At that hearing, the Rosas admitted the allegations in the order to show cause and requested asylum. The Immigration Judge (IJ) continued the hearing until December 15, 1987. At this hearing, the Rosas did not request counsel nor did the IJ inquire whether the Rosas wanted counsel. At the December 15, 1987 hearing, the Rosas, still without counsel, presented evidence supporting their asylum application but were denied asylum.

The Rosas filed a timely appeal of the IJ's denial of asylum with the Board of Immigration Appeals (BIA) requesting reconsideration of their asylum application. The Rosas did not, however, raise the issues of denial of their right to counsel or ineffective assistance of counsel in their appeal to the BIA. After the BIA dismissed their appeal, the Rosas, on petition for review to this court, asserted these claims.

It is generally held that if a petitioner fails to raise an issue before an administrative tribunal it cannot be raised on appeal. United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952); Vargas v. I.N.S., 831 F.2d 906, 907 (9th Cir. 1987). See also 8 U.S.C. § 1105a(c). If an agency lacks either the power or the jurisdiction to decide the issue, however, it can be heard on appeal. Reid v. Engen, 765 F.2d 1457 (9th Cir. 1985). The BIA does not have jurisdiction to adjudicate constitutional issues. Vargas, 831 F.2d at 905; Bagues-Valles v. I.N.S., 779 F.2d 483, 484 (9th Cir. 1985). The mere labeling of a claim as a denial of due process, however, does not suffice to divest the agency of jurisdiction. Reid, 765 F.2d at 1461. If the due process claim involves "procedural errors correctable by the administrative tribunal," then the petitioner must raise it in order to exhaust administrative remedies.

The Rosas' claims of ineffective assistance of counsel and denial of their right to counsel are not mere procedural errors correctable by the agency and thus the BIA did not have jurisdiction to hear them and this court can hear them on appeal. See Bagues-Valles, 779 F.2d at 484.

Because deportation is a civil action to determine an individual's eligibility to remain in the United States and not a criminal action, the Sixth Amendment does not guarantee counsel at the government's expense. Baires v. I.N.S., 856 F.2d 89, 90-91 (9th Cir. 1988); Castro-O'ryan v. Dept. of Imm. & Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1988). Aliens do, however, have a statutory right to be represented by counsel of their choice at no expense to the government. 8 U.S.C. § 1362. "The importance of counsel, particularly in asylum cases where the law is complex and developing, can neither be overemphasized nor ignored." Reyes-Palacios v. United States I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988). The failure of an IJ to inquire whether the alien desires counsel or why retained counsel is not present at the hearing is an abuse of discretion. Id.

The IJ at the deportation hearing did inquire whether the Rosas desired counsel and granted continuances to allow them to retain counsel. When they appeared without counsel at the third hearing, the IJ inquired about the failure of counsel to appear, but went ahead and conducted the proceedings. At the Rosas' asylum hearing, however, the IJ did not inquire as to the status of the Rosa's representation and again conducted the hearing without counsel. It is unclear whether the Rosas, who did not understand English, were aware of their right to counsel at this point. Because the IJ did not inquire about their lack of counsel, we cannot conclude that they waived this right. See id. Moreover, without counsel, the Rosas were prejudiced in their ability to present their case for asylum.

Because we find that the Rosas were denied due process when the IJ failed to ensure that the Rosas were aware of their rights to counsel and were prejudiced thereby, we REMAND for a new asylum hearing on the merits.

REVERSED and REMANDED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

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