Unpublished Disposition, 931 F.2d 897 (9th Cir. 1988)

MEMORANDUM^** 

Aldwyne George Stewart, a native and citizen of Jamaica, petitions for review of the Board of Immigration Appeals' (BIA) decision dismissing his appeal and affirming the immigration judge's (IJ) order of deportation.

Stewart contends that (1) his admissions to the charges in the order to show cause (OSC) were not knowingly, voluntarily, or intelligently made; (2) he was denied his statutory right to counsel at his deportation hearings; (3) the IJ was biased against his attorney, and thus, should have recused himself; and (4) his due process rights to a fair hearing were denied. We have jurisdiction pursuant to 8 U.S.C. § 1105(a). We affirm.

* FACTS

On March 30, 1987, the Immigration and Naturalization Service (INS) issued an OSC charging Stewart with deportability under 8 U.S.C. § 1251(a) (1). The OSC alleged that Stewart was convicted on November 14, 1986 for possession of cocaine for sale. Stewart's initial deportation hearing was held on March 17, 1988. He was represented at this initial hearing by his counsel, Derek Who. Through counsel, Stewart admitted the factual allegations in the OSC, conceded deportability, but indicated that he would seek a waiver of deportability pursuant to 8 U.S.C. § 1182(c). Who then moved for and was granted a continuance.

At the March 22, 1988 continued hearing, Who withdrew as counsel at Stewart's request and was replaced by attorney Nancy Miller. The IJ stated that Miller was not welcome to practice law in his court because he believed she was unethical and brought false charges before the IJ's. The IJ informed Stewart that it was his right to proceed with Miller as his attorney. The IJ, however, stated that he would grant a second continuance to allow Stewart the opportunity to find another attorney if he so desired. Stewart stated that he wished to be represented by Miller.

Miller then moved for the recusal of the IJ, for the withdrawal of the admissions to the allegations in the OSC made at the initial hearing, and for a continuance. These motions were denied, and the IJ ordered Stewart deported.

II

ANALYSIS

Stewart argues that he did not knowingly or voluntarily admit to the allegations in the OSC because he did not have time to review the OSC with counsel at the initial hearing.

Absent egregious circumstances, a distinct and formal admission made during a proceeding by an attorney acting in his professional capacity binds his client. See Magallanes v. INS, 785 F.2d 931 (9th Cir. 1986); see also Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1141, (9th Cir. 1981) (ordinarily admissions of fact by counsel in deportation proceedings are binding on the alien). We find no egregious circumstances here. Stewart was present at the initial hearing when his attorney, acting in his professional capacity, represented to the IJ that he was petitioner's counsel. Stewart also was present when his attorney formally admitted all the allegations in the OSC. The record reflects that the IJ went off the record to allow Stewart's counsel time to review the one paragraph OSC. When the IJ asked counsel whether he had reviewed the OSC, counsel answered in the affirmative. Counsel then admitted the allegations in the OSC. Accordingly, we find the attorney's admissions of the allegations in the OSC binding upon Stewart. See id.

Stewart's contention that he was denied his statutory right to counsel pursuant to 8 U.S.C. § 1362 is without merit. There is no sixth amendment right to counsel in deportation proceedings. Baires v. INS, 856 F.2d 89, 90 (9th Cir. 1988). The right to counsel in a deportation proceeding is statutorily granted by Congress under 8 U.S.C. § 1362, and is protected by the fifth amendment due process requirement of a full and fair hearing. Colindres-Aguilar v. INS, 819 F.2d 259, 261 n. 1 (9th Cir. 1987). To prevail on such a due process challenge, there must be a showing of prejudice. See United States v. Cerda-Pena, 799 F.2d 1374, 1377 n. 3 (9th Cir. 1986) (due process challenges must include a showing of prejudice).

Stewart argues that the actions of the IJ at the continued hearing were so biased against his substituted attorney (Miller) that Stewart was effectively deprived of his lawyer and consequently was represented by counsel "in name only." Stewart claims that a "judge without the rancor" toward his attorney might have allowed the withdrawal of his admissions to the charges in the OSC. Such conjecture, however, does not satisfy the petitioner's burden of demonstrating actual prejudice. See id. Moreover, as stated in the previous section, the IJ did not err by not allowing Stewart to withdraw his previous admissions. Therefore, this argument fails.¹ 

Stewart argues that the five-day continuance granted was too short to make the services of his substituted counsel adequate. Stewart also argues that the IJ's denial of a second continuance was error because Miller had been hired only one hour before the continued hearing, and thus did not have adequate time to prepare his case.

The decision to grant or deny a continuance is within the discretion of the IJ. See Rios-Barrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985) (citation omitted). We decide whether a denial of a continuance constitutes an abuse of discretion on a case to case basis according to the facts and circumstances of each case. See Baires, 856 F.2d at 91. Given the relatively uncomplicated nature of Stewart's case, we cannot say that the length of the first continuance of five days was an abuse of discretion. See id. Stewart has not shown how the IJ's rulings on the motions for continuances prejudiced him. Thus, this argument also fails. See id.

Stewart contends that the IJ's bias against his attorney resulted in the denial of his due process right to a fair hearing. Due process challenges also require a showing of prejudice. See Colindres-Aguilar, 819 F.2d at 261. We find no actual prejudice to the petitioner as a result of the IJ's conduct and comments. Stewart is not statutorily eligible for a waiver of deportability under 8 U.S.C. § 1182(c) because he had not been a lawful permanent resident for seven consecutive years at the time of the hearing. Stewart is ineligible for any other form of relief, and no other relief has been requested. Accordingly, we find no denial of due process. See id.

PETITION FOR REVIEW DENIED.