Interim Decision #2587 

MATTBR OF GU'lltalRE 

In Deportation Proceedings 

A-31404629 

Decided by Board May 26, 1977 

(1) Where the record showed that the immigration judge took scrupulous care to inform 

respondent of his right to be represented by counsel and old the availability of Legal Aid 

counsel at no charge to respondent and the immigration judge offered to adjourn the 

hearing to enable respondent to obtain counsel but respondent nonetheless desired to go 

ahead with the hearing, the respondent was sufficiently informed of his right to be 

represented by counsel at the hearing in compliance with 8 C.F. R. 242.16(a) and 8 C.F.R. 

242.10. 

(2) Where respondent's statements revealed en ennfecine ny• misunderstanding about the 

nature of the proceedings or of his right to be represented by counsel and there was no 

evidence that the respondent lacked a clear understanding of his right to be represented, the availability of Legal Aid counsel free of charge, or the consequences of 

Proceeding without counsel, respondent's waiver of CO, 171SPi was keewingly, intelligently and competently made. 

(3) Where respondent's waiver of counsel was an effective arid competent waiver, respondent's contention that failure of the immigration judge to appoint counsel at Government expense was a denial of due process, is without merit. 

CHARGE: 

Order: Act of 1952---,Section 241(a)(11) [S U.S.C. 1251(a)(11)]--Convicted of any law or 

regulation relating to the illicit possession ur trafficking in 

marihuana 

011 BEHALF OF RESPONDENT: Robert Guerra, Esquire 

Legal Aid Foundation of Los Angeles 

5228 Whittier Boulevard 

Los Angeles, California 90022 

Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members 

The lawful permanent resident respondent, a native and citizen of 

Mexico, was found deportable under section 241(a)(11) of the Immigratiom and Nationality Act, as an alien convicted of a crime relating to the 

illicit possession of marihuana, at a hearing before the immigration judge 

on December 9, 1976. Upon finding that no relief from deportation was 

a-vailahle, the immigration judge ordered the respondent deported to 

Yiexico. The respondent now appeals the finding of deportability, alleg226 
Interim Decision #2587 

ing that his lack of counsel at the hearing resulted in a denial of due 

process of law. The appeal will be dismissed. 

The respondent was admitted for permanent residence as the spouse 

of a United States citizen on January 25, 1972. This marriage apparently 

ended in divorce. On March 1, 1976, the respondent was convicted in 

United States District Court for the Southern District of California 

upon a plea of not guilty to the offense of possession of 30 pounds of 

marihuana with intent to distribute. He was sentenced to imprisonment 

for a period of one year, and was required to serve a special parole term 

of five years. On appeal to the United States Court of Appeals for the 

Ninth Circuit, this judgment was affirmed on August 5, 1976. On October 22, 1976, the respondent was served with an Order to Show Cause 

charging him with deportability under section 241(a)(11) of the Act. At 

the December 9, 1976 hearing, the respondent waived the right to 

counsel, despite being advised by the immigration judge of the availability of Legal Services counsel at no charge to the respondent and despite 

the immigration judge's offer to continue the hearing to allow the 

respondent to seek legal assistance. The respondent conceded all the 

allegations in the Order to Show Cause, but denied deportability. The 

immigration judge found him deportable, and found that he was ineligible for any form of discretionary relief. The immigration judge therefore 

ordered the respondent deported to Mexico. 

On appeal, the respondent, through counsel, contends that the immigration judge failed to advise him of his right to counsel, in violation of 8 

C.F.R. 242.16. He also contends, that the waiver of his right to counsel 

was not voluntary, understanding or competent. Last, he claims that 

the failure of the immigration judge to appoint counsel at the Government's expense denied him a fair hearing. The respondent argues that 

these deficiencies, taken separately or together, resulted in a denial of 

his right to procedural due process of law under the Fifth Amendment 

to the United States Constitution. 

A deportation hearing is not a criminal proceeding. Zakonaite v. 

Wolf, 226 U.S. 272 (1912). Therefore, any right to counsel derives not 

from the Sixth Amendment, but from the Fifth Amendment right to a 

fair hearing. Barth°ld v. INS, 517 F.2d 689 (5 Cir. 1975). 8 C.F.R. 

242.10 and 8 C.F.R. 242.16(a) provide that an alien shall have the right 

to counsel in a deportation proceeding at no expense to the Government, 

and that the immigration judge shall inform him of that right. 

Counsel contends that the immigration judge's conduct at the hearing 

represented only a "feeble attempt" to inform the respondent of his 

right to be represented by counseL We disagree. We note first that the 

Order to Show Cause served on the respondent contained a notification 

of the right to counsel at the deportation hearing. Murgia-llifelend-rez -v. 

INS, 407 F.2d 207 (9 Cir. 1969). Second, even a cursory reading of the 

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Interim Decision #2587 

transcript of the hearing reveals that the immigration judge took 

scrupulous and commendable care to inform the respondent of his right 

to be represented, the availability of legal counsel from Legal Aid at no 

charge to the respondent, and his willingness to adjourn if the respondent desired to secure Legal Aid counsel (Tr. p. 1). The respondent, 

however, expressed his desire to "go ahead with the hearing" (Tr. p. 2). 

We find that the respondent was sufficiently informed of his right to be 

represented at the hearing. 

Counsel next alleges that the immigration judge did not "attempt to 

ascertain whether the respondent was competent to make the waiver" 

of counsel (Respondent's Brief, p. 5). The right to counsel outlined in 8 

C.F.R. 242.10 may be waived by the alien_ Milian-Garcia v. INS, 343 

F.2d 825 (9 Cir. 1965); Dentico v. INS, 280 F.2d 71 (2 Cir. 1960); see 

Appleman, I., "Right to Counsel in Deportation Proceedings," 14 San 

Diego L.R. 130 (1976). However, since the right to counsel is an important right often essential to the fundamental fairness of a hearing, 

meticulous care must be exercised to insure that a waiver of this right is 

competently and understandingly made. De Souza v. Barber, 263 F.2d 

470 (9 Cir.), cert. denied 359 U.S. 989 (1959); Bridges v. Wison, 326 

U.S. 135 (1945). It is the duty of the immigration judge to insure that a 

waiver of the right to counsel is competently and understandingly made. 

Kovac v. INS, 407 F.2d 102 (9 Cir. 1969); U.S. ex rel. Castro-Lonzan v. 

Zimmerman, 94 F. Supp. 22 (E.D. Pa. 1950). The criteria for determining whether the right to counsel .has been competently waived are 

identical to those employed to determine the competency of a confes 

sion. Murgia-Melendrez v. INS, supra. Therefore, in assessing the 

competency of a waiver of the right to counsel, the respondent's age, 

intelligence, education and ability to comprehend must be considered. 

Murgia-Melendrez v. INS, supra. 

-We have reviewed the record transcript, and find no evidence that the 

respondent lacked a clear understanding of his right to be represented, 

the availability of Legal Aid counsel free of charge, or the consequences 

of proceeding without counsel. The respondent is 28 years old and has 

lived and worked in the United States for four years. Although he has 

had only four years of education, the hearing was conducted in the 

respondent's native Spanish, and the respondent's statements reveal nn 

confusion about or misunderstanding of the nature of the proceedings or 

of this right to be represented. The immigration judge is not required to 

state for the record that he finds the respondent competent to waive 

counsel. Our review of the record satisfies us that the respondent's 

waiver of counsel was knowingly, intelligently and competently made. 

Rurquez v. INS, 513 F.2d 751 (10 Cir. 1975). We therefore find that the 

riepondent's second contention is without merit. 

Counsel's last contention, that the immigration judge's failure to 

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appoint counsel at the Government's expense, is also without merit in 

this forum.. While the validity of the rule in Section 292 of the Act that 

counsel in a deportation hearing shall be at no expense to the Government has been recently questioned, Aguilera-Enriquez v. INS, 516 

F.2d 565 (6 Cir. 1975); Barthold v. INS, supra; Rosales-Caballero v. 

INS, 472 F.2d 1158 (5 Cir. 1973); Henriques v. INS, 465 F.2d 110 (2 Cir. 

1972), we are precluded from entertaining constitutional challenges to 

the Act itself. Moreover, the respondent's effective and competent 

waiver of any right he might have had to counsel renders any such claim 

insubstantial in this case. In Barthold v. INS, supra, the court, in a case 

involving similar facts, stated: "Lack of counsel in this case does not 

constitute a denial of due process because (the respondent) was offered 

an opportunity to obtain counsel he could afford . . . [W]hatever the 

scope of an alien's right to counsel (the respondent) by his actions 

effectively waived such right." 517 F.2d at 691-692. We find that the 

respondent's waiver of his right to counsel negates any claim of a denial 

of due process through lack of appointed counsel at the deportation 

hearing. Our review of the record satisfies us that the hearing was fair, 

that deportability was established by clear, convincing, and unequivocal 

evidence, and that the respondent's waiver of his right to counsel was 

knowingly- , intelligently, and competently made. We therefore shall 

dismiss the appeal. 

ORDER: The appeal is dismissed, and the respondent is ordered 

deported to Mexico in accordance with the terms of the immigration 

judge's decision. 

Regardless of the enclosed decision, you may be allowed to stay in the 

United States because of a recent court ruling if you registered with an 

American consul for an immigrant visa before January 1, 1977, and 

entered the United States prior to March 11, 1977. The court ruling 

relates to the case of Silva v. Levi, 76 C 4268 (N.D. Ill.). Please contact 

your attorney or authorized representative or an INS office for further 

information. 

Irrespectivamente de la decisio'n que se incluye, usted puede estar 

autorizado a permancer en los Estados Unidos a causa de una reciente 

determinacion judicial si usted se registro con un consul Americano 

para una visa de inmigrante antes del primer° de Enero de 1977, y 

entro' a los Estados Unidos previo al 11 de Marzo de 1977. La determinacio'n judicial se refiere al caso de Silva v. Levi, 76 C 4268 (N.D. 

Favor de comunicarse con su abogado, o su representante autorizado o una oficina del Servicio de Inmigracidn y Naturalization 

para mas information. 

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