Unpublished Disposition, 916 F.2d 716 (9th Cir. 1987)

MEMORANDUM^* 

Petitioners Rosario Betzabe Carmenate-Gonzalez and Sara Rebeca Carmenate-Gonzalez, both citizens of Guatemala, were charged with entering the United States without inspection in violation of Sec. 241(a) of the Immigration and Nationality Act. 8 U.S.C. § 1251(a). At a March 12, 1987 deportation hearing, while unrepresented by counsel, the petitioners conceded their deportability and designated Guatemala as the country to which they wished to be deported. The petitioners did not apply for any form of relief at their deportation hearing. The Immigration Judge (IJ) found the petitioners deportable as charged and ordered them deported from the United States to Guatemala. The Board of Immigration Appeals, in a per curiam order, affirmed the IJ's decision. This appeal followed.

Petitioners first argue that they were denied due process because of the absence of counsel at the deportation hearing and the IJ's failure to allow them sufficient time to procure the services of an attorney. We review a claim of denial of due process de novo. Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985). " [T]he decision to grant or deny continuances is in the sound discretion of the trial judge and will not be overturned except on a showing of clear abuse." Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985).

Because deportation proceedings are a civil, rather than a criminal, matter aliens involved in such proceedings have no sixth amendment right to counsel. Id. Any right an alien may have to counsel "is grounded in the fifth amendment guarantee of due process." Magallanes-Daiman v. INS, 783 F.2d 931, 933 (9th Cir. 1986). Aliens are also entitled to statutory and regulatory procedural protections. They have the right, guaranteed by statute and regulation, "to be represented by counsel of their choice, at no expense to the government." Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988); 8 U.S.C. § 1362; 8 C.F.R. Sec. 242.10. Further, aliens have the regulatory right to be advised of both their right to counsel and the availability of free legal services programs. 8 C.F.R. Sec. 242.16(a).

A review of the record reveals that petitioners were adequately informed of their rights concerning representation at the deportation hearing and were afforded a reasonable opportunity to arrange such representation. One week prior to their March 12, 1987 hearing, the petitioners were provided with a list of legal aid attorneys and informed that such counsel might be available at little or no cost. When the IJ presiding over the deportation hearing advised petitioners of their right to counsel and specifically asked petitioners if they were prepared to speak for themselves, the petitioners replied in the affirmative.¹  The record before the IJ contained no indication that the petitioners desired counsel or would have proceeded to obtain representation had they been given a further opportunity to do so. The government did not deny the petitioners the opportunity to obtain counsel. See Castro-O'Ryan v. INS, 847 F.2d 1307, 1313 (9th Cir. 1987). The petitioners were afforded opportunities to obtain representation but did not avail themselves of these opportunities. This case, therefore, can be distinguished from Colindres-Aguilar v. INS, 819 F.2d 259, 261 (9th Cir. 1987), where we held that the petitioner was denied due process because the IJ did not inquire whether petitioner wished to have representation and the record contained evidence "that petitioner desired counsel and may have obtained representation." See also Reyes-Palacios v. INS, 836 F.2d 1154 (9th Cir. 1988). The petitioners were not deprived of their due process rights.

The petitioners also rely on several right to counsel cases where the alien appeared pro se at the deportation hearing and either specifically requested a continuance or made in-court statements showing a desire to consult with counsel. In those circumstances, we have held that to deny the alien a continuance was an abuse of discretion. See Rios-Berrios, 776 F.2d at 862-63; Castro-Nuno v. INS, 577 F.2d 577, 579 (9th Cir. 1978). This case is distinguishable; the petitioners never requested a continuance and there was no indication that the petitioners desired to consult with counsel. The IJ's decision to accept the petitioners' representations of willingness to proceed on their own behalf was not an abuse of discretion.

Petitioners next argue that the IJ's failure to inform them of their right to seek asylum and withholding of deportation under Secs. 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h), or, in the alternative, voluntary departure under Sec. 244(e) of the Act, 8 U.S.C. § 1254(e), requires a remand to allow them to apply for such relief.

In Duran v. INS, 756 F.2d 1338, 1340 (9th Cir. 1985), we held that the INS "regulations do not require an immigration judge to notify an alien of his right to apply for relief under section 208(a) or section 243(h)."

Section 242.17(a) of the regulations, 8 C.F.R. Sec. 242.17(a), requires the special inquiry officer to inform aliens of their "apparent" eligibility for certain relief from deportation if "the petitioners' testimony or evidence" established "that they might be eligible for such relief." Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1212 (9th Cir. 1983). In this case, petitioners did not meaningfully raise the issue before the IJ, nor is it apparent from the record that they might be eligible for such relief.

Section 242.17(c) of the regulations, 8 C.F.R. Sec. 242.17(c), establishes a duty on the part of the special inquiry officer to inform the alien that he or she may apply for withholding of deportation. This duty, however, applies only "where the special inquiry officer, rather than the alien, designates the country to which the alien will be deported." Duran, 756 F.2d at 1341; Ramirez-Gonzalez, 695 F.2d at 1212. Since the petitioners voluntarily designated Guatemala as their country of deportation, the duty that the regulations establish does not come into play.

Finally, the IJ questioned the petitioners to determine whether they were eligible for voluntary departure. Petitioners' testimony established that they had neither the resources to fund their departure, nor the prospect of soliciting the necessary funds from a family member, friend or other source. See 8 U.S.C. § 1254(e); 8 C.F.R. Sec. 244.1. The record contains no material evidence to support the conclusion that the petitioners may have been eligible for voluntary departure.²  Therefore, the Board of Immigration Appeals properly concluded that there was no basis for remanding this case to the IJ for purposes of considering an application for asylum and withholding of deportation, or, in the alternative, voluntary departure.

AFFIRMED.