Vlado Snajder, Petitioner, v. Immigration and Naturalization Service, Respondent, 29 F.3d 1203 (7th Cir. 1994)

On July 28, 1991, an immigration judge (IJ) determined that Vlado Snajder was deportable and ordered him deported to Yugoslavia. Mr. Snajder appealed to the Board of Immigration Appeals (BIA) and asked that the case be remanded for a new hearing because he was denied his statutory right to counsel. The BIA denied relief, and Mr. Snajder took this appeal. We reverse the decision of the BIA and remand the case for a new hearing.

* FACTS

Vlado Snajder entered the United States on June 21, 1961 as a refugee. He later was admitted to the United States as an immigrant, retroactive to the date of his arrival. On February 13, 1989, Mr. Snajder pled guilty in a Wisconsin state court to one count of possession of a firearm, several drug-related violations, and bail jumping. Based on his controlled substance convictions, the Immigration and Naturalization Service (INS) issued an Order to Show Cause on December 27, 1990, against Mr. Snajder that charged him with deportability under section 241(a) (11) of the Immigration and Nationality Act, 8 U.S.C. § 1251.¹ 

On July 28, 1992, an IJ convened the deportation hearing. Mr. Snajder was not represented by counsel. At the beginning of the hearing, the IJ advised Mr. Snajder of his right to counsel, stated that he would not appoint an attorney for Mr. Snajder, and accepted a waiver from Mr. Snajder of his right to counsel.²  Immediately after Mr. Snajder was sworn to give testimony, the INS served Mr. Snajder with an additional deportability charge under INA section 241(a) (14), 8 U.S.C. § 1251(a) (14),³  based on his conviction for possession of a firearm. After explaining to Mr. Snajder that the Service was adding a second ground for deportation, the IJ again asked Mr. Snajder whether he wanted to continue:

IJ: Let me also tell you, sir, that whenever the Immigration Service adds a new charge or a new allegation, you do have a right to a reasonable continuance. And if you feel that, since you're representing yourself, that you need more time based on this new document, you can move for a continuance at this point.

. . . . .

Now, again, let me ask you, do you wish to go forward on this today?

Mr. Snajder: Yes.

A.R. 109-10.

After the hearing began, Mr. Snajder admitted the allegations of the Order to Show Cause, and the IJ found Mr. Snajder deportable under both sections charged. In addition, the IJ stated that Mr. Snajder was not eligible for discretionary relief (waiver of inadmissibility) under INA section 212(c), 8 U.S.C. § 1182(c).⁴  Relief would be available under Sec. 212(c) if Mr. Snajder had been charged with deportability based only on the drug convictions. However, the IJ continued, because the section making an alien deportable for possession of a firearm did "not appear to [have] a comparable ground of exclusion for the charge under Section 241(a) (14) relating to the firearms charge," the firearms charge precluded Sec. 212(c) relief.⁵  A.R. 125. Finally, the IJ held that Mr. Snajder was ineligible for asylum or withholding of deportation under INA section 208(d), 8 U.S.C. § 1158(d),⁶  or Sec. 243(h) (2), 8 U.S.C. § 1253(h) (2),⁷  respectively, "because he has been convicted of an aggravated felony." A.R. 125.

Mr. Snajder appealed to the BIA. He sought review of numerous aspects of the IJ's decision, among which was the contention that Mr. Snajder had been deprived of his statutory right to counsel. The Board affirmed the IJ's decision on the authorities cited by the IJ. The Board also stated that "in absence of a showing of eligibility for any forms of relief from deportation, we find the respondent has failed to demonstrate that he suffered prejudice as a result of his decision to proceed without counsel." Supp.A.R. 10 (citing United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979)). Mr. Snajder now appeals.

II

DISCUSSION

Mr. Snajder raises a number of issues on appeal, only one of which we need resolve.⁸  Mr. Snajder's principal contention is that he was denied his statutory right to counsel in the deportation proceedings. Mr. Snajder argues that the regulations in place at the time of the hearing required the IJ to inform him of his right to counsel after the INS lodged an additional charge against him. He submits that the IJ failed to inform him of his right to counsel and, consequently, under this court's rule in Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975), he is entitled to a new hearing.

The regulations in effect at the time of Mr. Snajder's deportation proceeding stated the following procedure for adding new charges:

(d) Additional charges. The Service may at any time during a hearing lodge additional charges of deportability, including factual allegations, against the respondent. Copies of the additional factual allegations and charges shall be submitted in writing for service on the respondent and entry as an exhibit in the record. The Immigration Judge shall read the additional factual allegations and charges to the respondent and explain them to him or her. The special inquiry officer shall read the additional factual allegations and charges to the respondent and explain them to him in nontechnical language. The special inquiry officer shall advise the respondent if he is not represented by counsel that he may be so represented and also that he may have a reasonable time within which to meet the additional factual allegations and charges. The respondent shall be required to state then and there whether he desires a continuance for either of these reasons. Thereafter, the provisions of paragraph (b) of this section shall apply to the additional factual allegations and lodged charges.

8 C.F.R. Sec. 242.16(d). The regulation requires that, when an additional charge is lodged by the Service, the alien must be reapprised of his rights. Specifically, the IJ must advise the alien "if he is not represented by counsel that he may be so represented." Id. This advice was not given. When the INS lodged the additional firearms charge against Mr. Snajder, the IJ was careful to explain to Mr. Snajder the nature of the additional charges. The IJ also informed Mr. Snajder that he had a right to a continuance to answer the additional charge. However, the IJ did not advise Mr. Snajder that he had a right to the assistance of counsel for the second charge. Consequently, Mr. Snajder was denied his right to counsel.

The Service argues that the IJ did not violate the regulation. First, the Service suggests, as counsel put it at oral argument, that the regulation is "sufficiently elastic" to encompass the instructions given by the IJ. In the alternative, the INS maintains that Mr. Snajder waived his right to counsel under the regulation. These arguments do not merit extended discussion. First, we cannot accept the Service's reading of the regulation. The regulation, by its language, requires the IJ to reapprise the alien of his right to counsel when an additional charge is lodged. There is nothing "elastic" in this language. In essence, the INS asks us to read out of the regulation the requirement that the IJ advise the alien of specific rights. However, we shall not ignore the language of the regulation which clearly requires this advice. The Service's waiver argument is also without merit. The Service urges us to treat a waiver for one charge as a waiver for all subsequent charges brought during one proceeding. This, too, is directly at odds with the language of the regulation, which requires an additional set of warnings, and therefore a separate waiver, for each additional charge.⁹ 

Because we have determined that the Service violated its regulation that protects the alien's right to counsel, this case must be remanded for a new hearing. In Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975), this court held that, when an alien is denied his right to counsel in a deportation hearing, the alien is entitled to a new hearing with counsel. We stated: " [T]he right to be represented by counsel of their choice granted to aliens in deportation proceedings by statute and regulations is too important and fundamental a right to be circumscribed by a harmless error rule." Id. at 1299. "The circumstances," we continued, "call for the prophylactic remedy of vacating the order of deportation and for writing thereafter on a clean slate." Id. at 1302. We recently have reaffirmed the holding in Castaneda-Delgado in Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993) (holding that deprivation of the right to counsel not only mandates a new hearing, but also requires that the alien be able to apply for any relief for which the attorney could have effectively applied in the first hearing).

Despite our adherence to Castaneda-Delgado in Batanic, the Service invites us to adopt the harmless-error standard of United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979), which the BIA applied in its review of Mr. Snajder's case. Calderon-Medina held that an agency's violation of its own regulation invalidates a deportation proceeding only when the regulation serves a purpose of benefit to the alien, and the violation prejudiced interests of the alien that were protected by the regulations. The INS claims that this is the better rule because presuming error when relief is not available "flies in the face of the pressing need for administrative and judicial efficiency and economy." Respondent's Br. at 13. We decline the Service's invitation to reconsider our holding in Castaneda-Delgado. The doctrines of stare decisis and precedent require our adherence to our established caselaw, so recently reaffirmed, absent compelling reasons to deviate. The INS has not provided us with any such reasons.

However, even if the law of this circuit permitted us to engage in a harmless-error analysis, Mr. Snajder would still be entitled to a new hearing because the IJ's failure to comply with the regulation produced the possibility of actual prejudice. If Mr. Snajder had been represented at the first hearing, the attorney could have advised him to apply for adjustment of status under INA section 245(a), 8 U.S.C. § 1255(a).¹⁰  Section 245(a) allows an alien, properly admitted as a permanent resident, but later found deportable, to apply for an adjustment of status to lawful permanent resident. If discretion is exercised in the alien's favor, "the [alien] will no longer be deportable on the basis of the prior conviction." Matter of Rainford, Int.Dec. 3191, 1992 WL 323809, * 4 (B.I.A. Sept. 9, 1992). As a prerequisite for obtaining Sec. 245 relief, the alien must show: (1) that he has made an application for such an adjustment; (2) that he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (3) that an immigrant visa is immediately available to him at the time his application is filed. If these are met, the alien still has the burden of establishing entitlement to the favorable exercise of discretion.

Mr. Snajder has demonstrated eligibility for this type of relief. Mr. Snajder is the son of a naturalized American citizen, whose petition for alien relative has been granted by the INS. Because Mr. Snajder falls within the First Family-Sponsored Preference for visas, visas were (and are) currently available to him. Furthermore, Mr. Snajder is admissible to the United States. The firearms violation "which renders [the alien] deportable under section 241(a) (2) (C) of the Act, will not preclude a showing of admissibility under Sec. 245(a)" because the firearms conviction is not also a ground for exclusion. Rainford, 1992 WL 232809 at * 4. Because Mr. Snajder is statutorily eligible for this relief, he should, therefore, have the opportunity to establish that he is entitled to a favorable exercise of discretion. Here his lack of representation deprived him of that opportunity.

In conjunction with the adjustment of status, an attorney also could have filed an application under Sec. 212(c) for waiver of deportability for "the limited purpose of waiving [the controlled substance related] ground." Matter of Gabryelsky, Int.Dec. 3213, 1993 WL 495142 (B.I.A. Nov. 3, 1993). Indeed, the IJ recognized that Sec. 212(c) relief was available to Mr. Snajder to waive deportability based on his drug convictions.

Because we have determined that Castaneda-Delgado and Batanic require a remand in this case, we have no occasion to reach the other grounds upon which Mr. Snajder urges a remand.¹¹  This case is remanded for a new hearing before the IJ in which Mr. Snajder shall have the opportunity to apply for an adjustment of status under Sec. 245(a) and a waiver of deportability under Sec. 212(c).¹²  We note that the granting of these types of relief is in the sound discretion of the IJ, and therefore we express no opinion as to the merits of Mr. Snajder's claim for relief.

Conclusion

For the foregoing reasons, the decision of the BIA is reversed and this case is remanded for a new hearing.

REVERSED AND REMANDED.