1 Under the current version of 8 U.S.C. § 1251, Prichard would be deportable under either §

1251(a)(2)(A)(iii) (aggravated felony) or § 1251(a)(2)(B)(i) (controlled substance). United States Court of Appeals,

Fifth Circuit.

Nos. 91–4276, 91–4893

Summary Calendar.

Mario PRICHARD–CIRIZA, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Dec. 3, 1992.

Petitions for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, JONES and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:

Mario Prichard–Ciriza (Prichard), a.k.a. Mario Trevino–Ciriza, appeals (1) the dismissal of

his deportati on appeal by the Board of Immigration Appeals (BIA) [No. 91–4276] and (2) the BIA's

denial of his motion to reopen deportati on proceedings to apply for a waiver under section 212(c)

of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) [No. 91–4893]. We affirm both

the dismissal of Prichard's appeal and the denial of his motion to reopen.

I. BACKGROUND

Prichard is a 33 year-old native and citizen of Mexico. He became a permanent resident alien

on January 26, 1982. He is married to a permanent resident alien. They have no children.

On June 25, 1987, Prichard was convicted of aggravated possession of co caine. He was

sentenced to ten years in the Texas Departme nt of Corrections. Shortly after his conviction, on

February 2, 1988, the Immigration and Naturalization Service (INS) served Prichard with an Order

to Show Cause why he should not be deported, based upon his recent convictio n, pursuant to 8

U.S.C. § 1251(a)(11). 1

A. P RICHARD ' S D EPORTATION H EARING

.On February 22, 1988, Prichard appeared before t he Immigrat ion Judge (IJ) along with

twenty other aliens facing possible deportati on. An interpreter was present. Prichard was not

represented by counsel.

In the presence of all 21 aliens, the IJ informed them that they had the right to be represented

by an attorney of their choice and at their own expense; that he would postpone any alien's individual

hearing if he or she wished to obtain or speak to an attorney or if the alien needed additional time to

prepare; and that he would reset any alien's hearing for another date "for any reason whatsoever."

None of the aliens, including Prichard, indicated that he or she wanted the hearing postponed. The

IJ also informed the aliens of the availabilit y of free or low-cost legal assistance in the Houston area

and of their right to appeal the IJ's decision to the BIA. The IJ showed the aliens an Order to Show

Caus e and ensured that each had received a copy stating his or her full, true, and correct name.

Finally, the IJ informed the aliens that, should they be deported, they would be ineligible to return for

five years without receiving special permission from the Attorney General. He then asked if there was

anyone who wanted to post po ne his o r her hearing "for any reason whatsoever." Receiving no

positive responses, the IJ administered the oath to the aliens and proceeded wit h t heir individual

cases.

Addressing Prichard individually, the IJ again asked whether Prichard had received the

information about legal services, the explanation of Prichard's appeal rights, and a copy of Prichard's

Order to Show Cause. Prichard answered yes to all three questions. The IJ asked Prichard whether

he wanted additional time to consult with an attorney or to prepare for his hearing. Prichard replied

that he wanted to represent himself.

Prichard testified that he is a native of Mexico and a citizen of that country, not of the United

States. He further testified that he last entered the United States on January 26, 1982, when he was

admitted as a permanent resident alien, but that he had been in the United States "for a long t ime

before that." He admitted to his June 25, 1987, conviction for cocaine possession. Prichard further

admitted that he was subject to deportation as a result of that conviction.

The IJ subsequently rendered his decision, ordering Prichard deported to Mexico. Prichard2 This issue appears to have been finally put to rest by the affidavits of Prichard's mother, Maria

S. Ciriza Vda de Prichard, dated September 6, 1978, and April 24, 1992, wherein she swears that

Prichard's biological father was Alfredo Trevino, not George (a.k.a. Bill) Prichard. Subsequent to

this latter affidavit, Prichard withdrew his claim to United States citizenship then pending before

the district court. Prichard–Ciriza v. INS, Civ. No. H–92–422 (S.D.Tex. May 21, 1992). expressed his disagreement with the decision, thereby reserving his right to appeal. The IJ informed

Prichard that, in order to t imely perfect appeal, he would have until March 3, 1988 to file the forms

provided by the IJ. The IJ also indicated that he would conduct a bond hearing for Prichard after he

was through with the deportation hearings.

B. P RICHARD ' S BIA A PPEAL

.

Prichard t imely appealed the IJ's order to the BIA on th e grounds that (1) he di d not have

advice of counsel, (2) he was not released from custody until February 25, 1988, which prevented

him from obtaining counsel prior to filing his appeal, (3) his wife is a permanent resident, (4) his

mother and Unit ed States citizen brother live in the United States, and (5) he has no immediate

relatives in Mexico. Having subsequently obtained counsel, Prichard filed a brief in support of his

appeal which claimed, additionally, that he was prejudiced by the consolidated deportation hearing

in that (6) the IJ did not consider Prichard's possible claim to derivative United States citizenship

based upon the citizenship of his father, (7) the IJ should have considered Prichard's eligibilit y for a

waiver of deportati on under section 212(c), and (8) the IJ's failure to inform Prichard of his right to

request release from custody deprived Prichard of his right to counsel.

On February 5, 1991, the BIA denied Prichard's request that his case be remanded to the IJ

and dismissed his appeal. The BIA held that Prichard had offered no evidence to the IJ which might

have suggested that he had a legitimate claim to derivative United States citizenship. In fact, quite

the contrary, Prichard admitted that he was a native and citizen of Mexico. Consequently, the IJ's

decision to consolidate Prichard's hearing with those of the other aliens did not prejudice his ability

to claim derivative citizenship. 2 The BIA further held that Prichard failed to satisfy the seven year

requirement of section 212(c) as of the date of his deportati on hearing, and that his statement that

he had been in

t he Unit ed St ates "for a long time" was insufficient grounds for a waiver of3 The BIA left open the question of whether Prichard was entitled to apply for a section 212(c)

waiver at the time of its decision since he had not filed a "properly supported" application for

relief with the BIA prior to its decision. A.R. 239 n. 1.

4 As discussed before, Prichard has withdrawn his claim of derivative citizenship based upon a

sworn affidavit by his mother that his natural father was Alfredo Trevino, not George Prichard.

See supra note 2. As for the facts that Prichard's wife and mother are resident aliens and he has a deportability. 3 Finally, with respect to the question of Prichard's custody and his access to counsel,

the BIA held that the mult iple offers by the IJ to post pone the proceedings so that Prichard could

obtain counsel, or "for any reason whatsoever," as well as the fact that the IJ held a bond hearing at

the conclusion of the deportati on proceedings, were sufficient to give Prichard access to advice of

counsel, if desired. Prichard appeals t he denial of his request for remand and the dismissal of his

appeal. [No. 91–4276]

C. P RICHARD ' S M OTION TO R EOPEN

.

P richard t imely moved to reopen his deportation hearing for purposes of asserting (1) his

eligibilit y for a waiver of deportati on under section 212(c) and (2) his claim of derivative citizenship.

The BIA denied Prichard's motion to reopen on the grounds that his claim of eligibilit y under section

212(c) had existed since January 26, 1989, but that Prichard had not advanced that claim with the

proper evidence prior to the Board's February 1991 decision, and that any evidence as to Prichard's

derivative citizenship claim was not "new evidence which had not

... been available," 8 C.F.R. § 3.2,

prior to February 1991. The BIA also found that Prichard was no longer eligible for section 212(c)

relief because he was no longer a lawful permanent resident alien after the BIA's February 5th final

administrative order of

deportation. Prichard appeals the denial of his motion to reopen. [No.

91–4893]

II. ANALYSIS

Prichard's various arguments on appeal before this court and the BIA can be consolidated into

four issues: (1) lack of assistance of counsel at his deportation hearing; (2) his claim to derivative

United States citizenship; (3) his claim of eligibility for a section 212(c) waiver of deportation; and

(4) the "equities" favoring granting him a waiver of deportation. Only the first and third issues are

properly before this court. 4United States citizen sibling, and the allegation that he has no immediate relatives in Mexico,

these factors would only be relevant if this court were evaluating a denial of section 212(c)

waiver. However, since neither the INS nor the Attorney General have denied Prichard's waiver

application, these "equities" are irrelevant.

5 The first two factors, alone, were sufficient to satisfy the "fundamental fairness" requirement

in Cobourne v. INS, 779 F.2d 1564 (11th Cir.1986). A. P RICHARD ' S R IGHT TO C OUNSEL AT THE D EPORTATION H EARING

.

A deportati on proceeding is civil, not criminal, in nature, and various constitutional

protecti ons associated with criminal proceedings are not required. I NS v. Lopez–Mendoza, 468 U.S.

1032, 1038–39, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984). Specifically, no sixth amendment

right to counsel exists in a deportati on proceeding. U nited States v. Campos–Asencio, 822 F.2d 506,

509 (5th Cir.1987); T

rench v. INS, 783 F.2d 181, 183 (10th Cir.), cert. denied, 479 U.S. 961, 107

S.Ct. 457, 93 L.Ed.2d 403 (1986).

While Prichard was entitled to due process during his deportation hearing, "due process is

not equated automatically with a right to counsel." M ichelson v. INS, 897 F.2d 465, 468 (10th

Cir.1990); s ee Trench, 783 F.2d at 183. "[B]efore we may intervene based upon a lack of

representation, [Prichard] must demonstrate prejudice which implicates the fundamental fairness of

the proceeding." M ichelson, 897 F.2d at 468. He did not do so. The IJ repeatedly informed

Prichard of his right to be represented by counsel, repeatedly ascertained that Prichard had received

and had a chance to review the list of persons and organizations providing free or low-cost legal

assistance, and repeatedly asked Prichard if he needed a postponement in order to secure counsel. 5

Furthermore, there is no indication that there were any grounds for relief available to Prichard at the

time of the deportation hearing which an attorney mi ght have brought to the IJ's attenti on.

Therefore, we find that Prichard's lack of counsel at his deportation hearing is insufficient grounds

to reverse the BIA's dismissal of his appeal.

B. P RICHARD ' S E LIGIBILITY FOR A WAIVER OF D EPORTATION

.

Section 212(c) of the INA allows the Attorney General to waive deportati on of an eligible

permanent resident alien, including one convicted of a controlled substances offense, so long as he

or she has been in legal permanent residence for at least seven years. G hassan v. INS, 972 F.2d 631,6 The INS argues that only the Second Circuit has held that section 212(c) "residence" may

begin prior to an alien becoming a permanent resident. See Lok v. INS, 548 F.2d 37, 38 (2d

Cir.1977) [ Lok I

]. In cases arising in all other jurisdictions, the INS argues that "the acquisition

of 7 or more years of lawful unrelinquished domicile for purposes of eligibility under section

212(c) of the Act commences with the date of admission for permanent residence and not before."

A.R. 238; see, e.g., In re Anw o, 16 I & N Dec. 293 (BIA 1977), aff'd sub nom. Anw o v. INS, 607

F.2d 435 (D.C.Cir.1979). 633–34 & n. 2 (5th Cir.1992). We turn to the questions of when Prichard's "legal permanent

residence" began and ended for purposes of eligibility for a section 212(c) waiver.

Prichard argues that the IJ should have considered his lengthy presence in the United States

prior to receiving his "green card" as indicating an intent to establish domicile sufficient to satisfy

section 212(c). Alternatively, Prichard argues that, even if his "residence" did not begin until he was

admitted as a permanent resident alien in January 1982, more than seven years passed between that

time and when the BIA dismissed his appeal; and, therefore, he was eligible at that lat t er time

(February 1991) to apply for a waiver.

The INS, on the other hand, argues that Prichard's section 212(c) "residence" did not begin

until January 26 , 1982, 6 and that he had not yet achieved seven years of "lawful unrelinquished

domicile," 8 U.S.C. § 1182(c), when he was ordered deported by the IJ. Further, the INS argues that

Prichard's application for a section 212(c) waiver in his motion to reopen is not t imely, because the

BIA's prior decision dismissing his appeal and affirming his order of deportati on stripped him of his

status as a lawful permanent resident, making him ineligible to apply for a waiver of deportation.

1. Eligibility Follow ing the BIA's Decision.

Taking the last argument first, we are guided by Rivera v. INS, 810 F.2d 540 (5th Cir.1987),

where, on rehearing, this court held that an alien's lawfu l resident status is terminated "after an

adverse decision by the init ial factfinder and an affirmance by the BIA following de novo review."

Id. at 541; accord Ghassan, 972 F.2d at 637–38 (5th Cir.1992); G onzales v. INS, 921 F.2d 236,

238–40 (9th Cir.1990); V ariamparambil v. INS, 831 F.2d 1362, 1367 (7th Cir.198 7); but see

Vargas v. INS, 938 F.2d 358, 363 (2d Cir.1991).

The Rivera court reasoned:

Requiring the a lien to assert his claim for discretionary relief from deportation while his7 For instance, if Prichard had been in the United States on a valid temporary work visa and had

achieved permanent resident status prior to the expiration of that visa, then the time he was

domiciled in the United States under the auspices of the visa might well count toward his seven

year minimum. However, such was not the case. Prichard had been present in the United States

as an illegal alien "for a long time" prior to being admitted as a permanent resident. deportati on order is on appeal t o the Board permits the Board to consider both claims

together....

....

The rule the appellant would have us adopt encourages an alien to wait until after he appeals

the deportati on order to the court of appeals before filing his petition for section 212(c) relief.

This would require the immigration judge and the BIA to again review the alien's case to rule

o n t he claim for section 212(c) relief. Such a rule would allow the alien to string o ut his

claims, unnecessarily increase the Board's work load and delay the ultimate disposition of the

case.

Rivera, 810 F.2d at 541–42.

We see no valid distinction between a de novo affirmance, as in Rivera, and a de novo review

leading to the BIA's decision to dismiss Prichard's appeal. Therefore, we hold that Prichard's motion

to reopen, based upon his application for waiver under section 212(c), is untimely.

2. Eligibility at Time of Deportation Hearing.

Because Prichard was not represented by counsel at his deportati on hearing and made the

statement that he had been in the United States "for a long time" prior to his legal admittance as a

permanent resident alien, he argues that the IJ should have considered sua sponte his eligibilit y fo r

a section 212(c) waiver. However, the statute clearly provides for the possibility of waiver only when

the alien has established "a lawful unrelinquished domicile of seven consecutive years." 8 U.S.C. §

1182(c). Since Prichard could not have been lawfully domiciled in the United States when he was

in the United States illegally, the time he spent here as an illegal alien, even if it immediately preceded

time spent as a lawful resident alien, could not count toward the seven year requirement.

We read Lok v. United States, 681 F.2d 107 (2d Cir.1982) [ Lok III ], to hold that, while one

need not be a permanent resident alien for the entire seven years in order to apply for a section 212(c)

waiver, one must be a law

fully resident alien for the entire seven years to do so. S ee id. at 109–110. 7

An illegal alien is not a lawfully resident alien. I d. at 109. Neither the IJ nor the BIA erred by failing

to consider Prichard's eligibility for a section 212(c) waiver at the time of his hearing before the IJ.8

We believe that when presented with a recommendation from the INS, with which a petitioner

concurs, the BIA must give the INS' recommendation ample consideration.... Since the

BIA gave no deference to the parties' request for a remand, and did not itself fully explore

petitioner's eligibility for § 212(c) relief based on the evidence presented, we find that the

BIA acted arbitrarily and capriciously.

Anderson, 953 F.2d at 806. Furthermore, the court stated that, had the petitioner's

eligibility been raised on direct appeal, it "could have remanded the case to the IJ for a

hearing on the § 212(c) motion." Id.

9 In our view, the most viable and fair cutoff date is the date upon which the INS commences the

deportation proceedings, i.e. when the order to show cause is issued. This choice

eliminates both of the problems inherent in the "time of commission of a deportable act" 3. Eligibility Prior to the BIA's Dismissal of Prichard's Appeal.

We will address one final issue: whether Prichard became eligible to apply for a waiver of

deportati on during the course of his appeal to the BIA. Prichard filed his Notice of Appeal on March

2, 1988. The BIA dismissed his appeal on February 5, 1991. In the interim, on January 26, 1989,

to be exact, Prichard "celebrated" the seventh anniversary of his admission to the United States as a

lawful permanent resident alien. Did he, at that time, beco me statutorily eligible to apply for a

waiver?

In Anderson v. McElroy, 953 F.2d 803 (2d Cir.1 992), the peti ti oner was not statutori l y

eligible under section 212(c) at the time of his deportati on hearing. While his appeal to the BIA was

pending, however, the petitioner completed seven years as a lawful permanent resident and, in the

words of the Second Circuit, "became eligible for § 212(c) relief." Id. at 806. The INS requested

that the BIA remand the case to the IJ to determine petitioner's eligibilit y for relief from deportati on.

The BIA summarily denied the re quest . The Second Circuit held this to be an abuse of the BIA's

discretion. Id. 8

In Ballbe v. INS, 886 F.2d 306 (11th Cir.1989), cert. denied, 495 U.S. 929, 110 S.Ct. 2166,

109 L.Ed.2d 496 (1990), the petitioner had entered the United States as a lawful permanent resident

on May 12, 1977. On September 19, 1983, he was convicted of possession of cocaine with intent

to distribute. The INS issued an Order to Show Cause on November 2, 1983, while Ballbe was still

incarcerated; however his deportation hearing was not held until June 17, 1985. I d

. at 307. The

Eleventh Circuit, relying on its earlier holding in Marti–Xiques v. INS, 741 F.2d 350 (11th Cir.1984), 9cutoff date. First, regardless of the grounds for deportation, the date is readily

ascertainable. Second, the Attorney General's discretion in granting § 212(c) relief is not

overly restricted as would be the case with the earlier cutoff date. Furthermore, fixing the

cutoff date as of the time of the issuance of the show cause order also avoids the problem

of tying the accrual of § 212(c)'s seven-year period to the quirks and delays of the

administrative and judicial processes. Therefore, we conclude that eligibility for § 212(c)

relief is determined as of the date the order to show cause is issued.

Marti–Xiques, 741 F.2d at 355. held that "the date to be used in determining whether an alien has maintained a lawful unrelinquished

domicile for purposes of dete rmining the alien's eligibility for section 212(c) relief is the date of

issuance of the order to show cause." Ballbe, 886 F.2d at 309.

The Ninth Circuit appears to rest its determination of when eligibilit y for section 212(c) relief

ends on the arguable merit of an alien's appeal(s). In Wall v. INS, 722 F.2d 1442 (9th Cir.1984),

petitioner became a permanent resident alien on January 20, 1976. He subsequently pled guilty to

a co caine distribution charge and was found deportable on October 2, 1979. Wall appealed. The

BIA affirmed on July 1, 1981. While his appeal was pending before the Ninth Circuit, Wall petitioned

the BIA to reo pen in o rder to apply for section 212(c) relief. The BIA denied Wall's motion to

reopen on April 8, 1983, on the grounds that his lawful domicile terminated on July 1, 1981. I d. at

1442–43. The Ninth Circuit held that "Wall became statutorily eligible for [section 212(c) ] relief

when he attained seven years of lawful domicile on January 20, 1983." Id. at 1445.

In Torres–Hernandez v. INS, 81 2 F.2d 1262 (9th Cir.1987), on the other hand, the Ninth

Circuit held that an alien "should not be entitled to evade the requirements of 8 U.S.C. § 1182(c) by

filing a frivolous appeal." I d. at 1264. The T

orres–Hernandez court specifically distinguished Wall

on the grounds that the latter case "did not

. .. invo lve a frivolous appeal" and thus "ha[d] no

application to the question presented in" the case at hand. Id.

Torres–Hernandez is consistent with the Supreme Court's holding in INS v. Rios–Pineda, 471

U.S. 444, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985), wherein the Court upheld the BIA's finding that

petitioners were not eligible for section 212(c) relief where t heir seven years of domicile accrued

"while their meritless appeals dragged on." I d. at 450, 105 S.Ct. at 2102. This, of course, leaves the

question: What constitutes a frivolous appeal for purposes of section 212(c)? In R ios–Pineda, the10 Specifically, petitioner claimed that the date of his entry into the United States was not

available at the time of his deportation hearing because his status was not entered into the INS

central index system until after his deportation hearing. However, his passport, which

Torres–Hernandez introduced as an exhibit in his deportation hearing, "proved the date of his

entry into the United States." Torres–Hernandez, 812 F.2d at 1264. Supreme Court found "[n]o substance

... in any of the points raised on appeal, in and of themselves,

and

... agree[d] with the BIA that they were without merit." I d. In T orres–Hernandez, the Ninth

Circuit found that petitioner failed to present any newly discovered evidence in the motion to reopen,

as required by 8 C.F.R. § 3.2. Torres–Hernandez, 812 F.2d at 1264. 10

Given the facts of this case, we feel that Anderson is inapposite. The INS did not ask the BIA

to reconsider Prichard's eligibilit y for section 212(c) relief. Lacking such a request, we are

hard-pressed to accept the view that an alien's eligibilit y for a waiver of deportability continues until

the day he or she is physically deported. On the other hand, we are not sure we would go as far as

Ballbe and require that an alien's section 212(c) eligibility be judged, in all cases, as of the date the

Order to Show Cause issues. That question we will save for another day.

What is clear is that Prichard's appeal to the BIA failed to present any arguments which could

have motivated the BIA to reverse the IJ's finding of deportability. Prichard's right to counsel, to the

extent that such exists in a civil deportati on hearing, was not infringed upon by the IJ. Prichard has

no valid claim to derivative United States citizenship. Prichard was not eligible for section 212(c)

relief at the time of the deportati o n hearing. And Prichard's "equity" arguments did not affect the

BIA's decision on the propriety of the IJ's findings; rather, they would be appropriate, if at all, only

when considering whether to grant Prichard a waiver of deportability for which he was not qualified.

In light of Rios–Pineda and Torres–Hernandez, we decline to allow Prichard to count the

time it took the BIA to dispose of his frivolous appeal toward the seven year unrelinquished domicile

requirement of 8 U.S.C. § 1182(c). Therefore, since Prichard had not achieved seven years of

unrelinquished domicile prior to the filing of his appeal, we hold that he did not satisfy the statutory

requirement of 8 U.S.C. § 1182(c) and that the BIA did not err.

III. CONCLUSION

We AFFIRM the decisions of the Board of Immigration Appeals in both No. 91–4276 andNo. 91–4893.

AFFIRMED.