Interim Decision #2969 

MATTER OF SANTOS 

In Deportation Proceedings 

A-24879910 

Decided by Board June 26, 1.984 

(1) An alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated. 

(2) In cases arising outside of the United States Courts of Appeals for the Seventh 

Circuit and the District of Columbia Circuit, a violation of the right to counsel in 

a deportation proceeding may be disregarded as harmless error so long as the vioianon is not fundamentally unfair and dues nut. demonstrably- prejudice the alien. 

(3) The scheduling of a deportation hearing on less than 7 days' notice does not violate either the notice requirement of 8 C.F.R. § 242.1(b) (1984) or the constitutional 

guarantee of due process when the district director finds the public interest requires shorter notice, the notice is reasonable under the circumstances of the case, 

and the alien is not prejudiced. 

CHARGE 

Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. §1251(aX2)]--Nonimmigrant—remained longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Harold Green, Esquire David B. Hopkins 

6917 Old Seward Highway General Attorney 

Anchorage, Alaska 99502 

BY: Milhollan, Chairman; Mania's, Dunne, Morras' , and Vnees, %aril Members 

The respondent has appealed from the December 30, 1982, summary decision of an immigration judge finding him deportable as 

an overstay pursuant to section 241(a)(2) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(2) (1982). The appeal will be dismissed. 

The respondent is a 48-year-old male native and citizen of the 

Philippines. He entered the United States at San Francisco, California, on June 2, 1982, an a nonimmigrant visitor for pleasure who 

was authorized to remain in this country until August 30, 1982. He 

failed to depart by that date. On November 16, 1982, prior to the 

institution of deportation proceedings, the Immigration and Natu- 
Interim Decision #2969 

ralization Service granted the respondent the privilege of departing 

voluntarily from the United States before December 15, 1982. He 

again failed to depart within the time allotted. On December 27, 

1982, the Service arrested the respondent in Anchorage, Alaska, 

and commenced deportation proceedings against him by issuing an 

Order to Show Cause, Notice of Hearing, and Warrant for Arrest of 

Alien (Form I-221S) charging him with deportability pursuant to 

section 241(a)(2) of the Act for remaining in the United States 

longer than permitted. 

A deportation hearing was convened before the immigration 

judge 1 day later, on December 28. 1982. At that hearing the respondent requested an opportunity to secure counsel and was 

granted a continuance of 1 day to do so. At the reconvened hearing 

on December 29, 1982, the respondent, who had been unable to 

retain an attorney, waived his right to counsel and, testifying in response to questions put to him by the immigration judge, admitted 

the factual allegations in the Order to Show Cause. In a summary 

decision the immigration judge found the respondent deportable as 

charged on the basis of his admissions. Upon ascertaining that the 

respondent wished to depart voluntarily instead of being deported, 

the immigration judge granted the respondent voluntary departure 

until December 30, 1982, or any extension beyond that date that 

may be granted by the district director. The respondent waived his 

right to appeal the immigration judge's decision. 

On January 3, 1983, the respondent, with the assistance of counsel, filed this appeal. He contests the legality of his waivers of 

counsel and of appeal, challenges the sufficiency of the evidence of 

deportability, and contends that the Service and the immigration 

judge violated not only various regulations, but the fifth amendment's guarantee of due process. We shall assume jurisdiction over 

the case by certification as provided in 8 C.F.R. § 3.1(c) (1984), thus 

mooting the issue of whether the respondent effectively waived his 

right to appeal. 

As a preliminary matter, we will address the respondent's argument that the evidence in the case is Insufficient to support the 

finding of deportability. When an alien is charged with being deportable as an overstay pursuant to section 241(a)(2) of the Act, 

there must be "clear, unequivocal, and convincing evidence," 

Woodby v. INS, 385 U.S. 276, 286 (1966), that the alien was admitted as a nonimmigrant for a temporary period, that the period 

elapsed, and that he did not depart. Ho Chong Tsao v. INS 538 

F.2d 667, 668 (5th Cir. 1976), cert. denied 430 U.S. 906 (19T1); Mi 

lands v. INS, 484 F.2d 774, 776 (7th Cir. 1973); see also Torabpour v. 

INS, 694 F.2d 1119, 1122 (8th Cir. 1982); Cabuco-Flores v. INS, 477 

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F.2d 108, 110 (9th Cir.), cert. denied, 414 U.S. 841 (1973). The respondent freely admitted, under oath, that he entered the United 

States as a nonimmigrant, that he was authorized to remain until 

August 90, 1982, that he received an extension until December 15, 

1982, and that he did not depart by that date. These admissions are 

clear, unequivocal, and convincing and prove each of the elements 

of the charge of deportability. See, e.g., Milande v. INS, supra. 

Thus, we find them wholly sufficient to support the order of deportation. 

The respondent contends that we should reverse the order of deportation because his right to counsel was violated at his deportation hearing, thereby denying him due process. Specifically, the respondent argues that he was not given an adequate opportunity to 

obtain counsel and that he did not effectively waive his right to 

counsel once the hearing commenced. We do not believe the respondent was denied the privilege of counsel at his hearing. The 

immigration judge granted the respondent's request for a continuance so that he could have an opportunity to obtain counsel and, at 

the reconvened hearing, the respondent did not request more time 

to seek counsel or indicate he still wished to secure representation. 

See Milian-Garcia v. INS, 343 F.2d 825, 829 (9th Ch.), vacated and 

remanded on other grounds, 382 U.S. 69 (1965). In addition, the respondent's waiver of counsel appears to have been voluntary, 

knowing, and intelligent. There is no indication, whatsoever, that 

he waived counsel because of undue Government influence, nor do 

his statements at the time of the waiver reveal any confusion 

about the nature of the proceedings, his privilege of being represented,, or his rights to present evidence, cross-examine witnesses, 

and object to the Government's evidence. See Burquez v. IN% 513 

F.2d 751, 755 (10th Cir. 1975); Matter of Gutierrez, 16 I&N Dec. 226 

(BIA 1977). Moreover, the immigration judge sufficiently informed 

the respondent of his privilege of counsel. See United States v. Barraza-Leon, 575 F.2d 218, 222 (9th Cir. 1978); Matter of Gutierrez, 

supra. 

Nevertheless, even if the respondent was not given sufficient 

time to obtain counsel or did not effectively waive counsel, it does 

not automatically follow that he has been denied constitutional due 

process. We have held an alien must demonstrate that he has been 

prejudiced by a violation of a procedural rule or regulation before 

his deportation proceeding will be invalidated. Matter of GarciaFlores, 17 I&N Dec. 325, 329 (BIA 1980). This is consistent. with the 

rule that an alien must have been prejudiced by a procedural 

defect in his deportation proceeding before he will be found to have 

suffered a denial of due process. See Ka Stung Chan INS, 624 

AFf 
Interim Decision #2969 

F.2d 248, 258 (5th Cir. 1981); United States v. Calles-Pinecla, 627 

F.2d 976, 977-78 (9th Cir. 1980); Tejeda-Mata v. INS, 626 F.2d 721, 

727 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982); see also United 

States v. Vega-Mejia, 611 F.2d 751, 752 (9th Cir. 1979); Garcia-Jaramillo v. INS, 694 F.2d 1236, 1238-39 (9th Cir. 1979), cert. denied, 

449 U.S. 828 (1980); Bowe v. INS, 597 F.2d 1158 (9th Cir. 1979); 

Nicholas v. INS`, 59D F.2d 802, 808-10 (9th Cir. 1979); United States 

v. Barraza-Leon, supra, at 221; Orozco .Rangel v. INS, 528 F_2d 224 

(9th Cir. 1976); Chung Young Chew v. Boyd 309 F.2d 857, 864-65 

(9th Cir. 1962). We consider this rule to apply with equal force to 

the contention that an alien has been denied due process in his deportation proceeding because of conduct that amounts to a violation of his right to counsel. 

The "right" to counsel does not arise by operation of the sixth 

amendment, for deportation proceedings are not criminal prosecutions. Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977); MartinMendoza v. ma 499 F.2d 918, 922 (9th Cir. 1974); Murgia-Melencis es v. INS, 407 F.2d. 207, 209 (9th Cir. 1969). Rather, this "right" is 

the opportunity, created by the Act and the regulations, of being 

represented by qualified counsel of choice, at no expense to the 

Government See,. e_g, Ramirez v. IN& supra; see also sections 

242(b), 292 of the Act, 8 U.S.C. §§ 1252(b), 1362 (1982); 8 C.F.R. 

§ 242.10 (1984). An erroneous violation of this statutory privilege is 

not, as a matter of law, so egregious or inherently unfair that it 

amounts to a per se denial of due process. For example, the ineffective assistance of counsel in a deportation proceeding does not 

amount to a denial of due process unless it has been unfair or has 

prevented an alien from reasonably presenting his case. Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir.), cert. denied, 467 U.S. 1205 

(1984); Paul v. INS, 521 F.2d 194, 199 (5th Cir. 1975). Similarly, the 

absence of counsel at a deportation hearing does not constitute a 

denial of due process without some showing of prejudice to the 

alien. Ramirez v. WS, supra, at 562, 565; Aguilera-Enriquez v. INS, 

516 F.2d 565, 569 (6th Cir. 1975); Burquez v. INS, supra, at 755; 

Martin-Mendoza v. INS, supra, at 922; Villanueva-Jurado v. INS, 

482 F.2d 886, 888 (5th Cir. 1973); Henriques v. INS, 465 F.2d 119, 

120-21 (2d. Cir. 1972), cert. denied, 410 U.S. 968 (1973); Sumio Madokoro v. Del Guercio, 160 F.2d 164, 167 (9th Cir.), cert. denied, 332 

U.S. 764 (1947); Matter of Escobar, 18 I&N Dec. 412 (BIA 1983). The 

Supreme Court has recently acknowledged that even violations of 

the right to counsel in criminal proceedings may be disregarded as 

harmless error in appropriate cases. United States v. Morrison, 449 

U.S. 361, 365 (1981); see also Moore v. Illinois, 434 U.S. 220, 232 

(1977). If this is the rule in criminal proceedings where the right to 

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Interim Decision #2969 

counsel is grounded in the specific guarantee of the sixth amendment, it is, a fortiori, the rule in deportation proceedings where the 

statutory privilege of counsel is grounded in the due process concept of fairness. That concept necessarily includes consideration of 

the harm or prejudice caused by erroneous conduct. 

The respondent argues, however, that the privilege of counsel is 

so fundamental that its violation can never be considered harmless 

error. This position has been accepted by the United States Courts 

of Appeals for the Seventh Circuit and the District of Columbia 

("D.C.") Circuit, both of which have held that a violation of the 

privilege of counsel in deportation proceedings is inherently prejudicial and is not subject to the harmless error doctrine. CastanedaDelgado v. INS, 525 F.2d. 1295 (7th Cir. 1975); Yiu Fong Cheung v. 

INS, 418 F.2d 460 (D.C. Cir. 1969). These courts, which relied exclusively on decisions in criminal cases to support their position, did 

not address the distinction between deportation proceedings and 

criminal trials. See, e.g., Woodby v. INS, supra, at 285-86; Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952). Moreover, these 

courts based their decisions upon the premise, rejected in United 

States v. Morrison, supra, and Moore v. Illinois, supra, that violations of the right to counsel may never he considered harmless. 

even where no prejudice ensues. For these reasons, we decline to 

follow the position of the Seventh and the D.C. Circuits outside of 

those circuits. Since the respondent's case arises in the Ninth Circuit, we hold that a deprivation of counsel does not amount to a 

denial of due process so long as it was harmless error, i.e., so long 

as it was not unfair or did not demonstrably prejudice the respondent.' 

At the deportation hearing the respondent readily admitted the 

facts which make himdeportable as charged. He has not denied 

those facts nor has he challenged the legality of his admissiona. 2In 

Our holding is distinguishable from the decision in Castro-Nunn v. INS, 577 F.2d 

577 (9th Cir. 1978), in which the Ninth Circuit reversed an order of deportation 

when an immigration judge failed to continue an alien's deportation hearing until 

such time as counsel retained by the alien could be present. In that case, the Ninth 

Circuit held that the immigration judge had denied the alien his statutory privilege 

of counsel and thereby had committed a reversible abuse of discretion. Id. at 579. 

There was no contention in that case, however, that the violation of the privilege of 

counsel was harmless error. Thus, the Ninth Circuit did not address the issue. 

2 This is not a case in which counsel validly could have advised the respondent 

that he had a fifth amendment privilege to remain silent in response to the questions about his alienage and his failure to depart within the authorized time. The 

fifth amendment privilege against compelled self-incrimination exists only when a 

person is asked to testify to incriminatory facts, i.e., facts which could make him 

Continued 

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Interim Decision #2969 

the appellate stage of these proceedings the respondent has received the assistance of counsel in presenting his procedural objections to the order of deportation. Counsel has not advanced any arguments which refute the finding of deportability nor has he 

shown that the respondent was eligible for any form of discretionary relief from deportation other than that which he received, voluntary departure. Thus, this is a case in which the operative facts 

are undisputed, deportability is clear, and the respondent has been 

given a fair opportunity to challenge the deportation order on 

appeal and has failed to show how the presence of counsel would 

have changed the outcome. Under these circumstances, any erroneous violation of the privilege of counsel that may have occurred 

was neither unfair nor prejudicial to the respondent and therefore 

did not amount to a denial of due process requiring a new hearing. 

See Henriques v. INS, supra, at 121. 

The respondent has also raised a number of other procedural objections to his deportation hearing. Several of these objections are 

frivolous. The objection that the respondent was neither provided 

with nor given an opportunity to secure an interpreter ignores the 

fact that there was no apparent need for an interpreter because 

the respondent did not request one and appeared to understand 

and speak English well. The objection that the respondent was not 

advised that his statements might be used against him, in violation 

of 8 C.F.R. §§ 242.1(c) and 242.2(a) (1982), is unsupported by the 

record. The regulations cited pertain to advice an alien is to receive 

before a deportation hearing commences, either upon service of an 

Order to Show Cause or upon arrest, and the record contains no 

information whatsoever about the Service's conduct at this point in 

the proceedings. Moreover, once the respondent was placed under 

oath at his deportation hearing, he had no right to remain silent to 

nonincriminating questions, see supra note 2, and he was under an 

obligation to answer any questions truthfully or suffer the adverse 

inferences that could be drawn from his silence. United States ex 

rel. Vajtauer v. Commissioner, 273 U.S. 103, 110 (1927); United 

States ex rei Bilohum.sky v. Tod, 263 U.S 149, 154 (1923); ChavezRGya v. INS, 519 F.2d 397, 401 (7th Cir. 1975). The objection that 

the Order to Show Cause provided insufficient notice of the charges 

against the respondent and required an explanation is wholly without merit. The Order to Show Cause fully complied with the notice 

subject to criminal prosecution. See Minnesota v. Murphy, 465 U.S. 420, 435 n.7 

(1984); Wail v. INS, 722 F.211 1442 (9th Cir. 1984); Mattor of Carrillo, 17 T&N Dec. 30 

(31A 1979). No crime is implicated when an alien overstays his allotted time. Thus, 

the facts which the respondent was asked to, and did, admit were nonincrizainatory 

facts and he had no valid basis for asserting a fifth amendment privilege. 

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requirements of the regulations: it contained a recitation of the 

legal authority under which the deportation proceedings would be 

conducted, a statement of the facts which made the respondent's 

conduct unlawful, and a designation of the charges against the respondent and the statutory provisions he violated. 8 C.F.R. 

§ 242.1(b) (1982). The respondent made no request to be provided 

with an explanation of the Order to Show Cause, nor did he express any uncertainty when he admitted each of the allegations. 

The respondent has also argued that the Service's regulations 

were violated, thereby denying him due process, because he was 

not advised of the availability of a free legal services program. The 

regulations require an immigration judge at the opening of a deportation hearing to advise an alien of the availability of such programs and to ascertain whether the alien has received a list of 

them. 8 C.F.R. § 242.16(a) (1982). It appears from the record that 

the immigration judge did not advise the respondent of the availability of such programs at the opening of his hearing. Nonetheless, the immigration judge was able to ascertain that the respondent had already been informed of the availability of a free legal 

services program: the immigration judge had before him, as an exhibit, the Order to Show Cause which had been served upon the 

respondent and to which was attached a Written Notice of Appeal 

Rights (Form 1-618) informing the respondent of the existence and 

address of Legal Aid. Under these circumstances, it is clear that 

the respondent was given notice, before his deportation hearing, of 

the availability of a free legal services program and thus was not 

prejudiced by the immigration judge's failure to advise him of that 

program at the start of the hearing. Since the immigration judge's 

failure to comply fully with 8 C.F.R. § 242.16(a) (1982) was a procedural defect which did not prejudice the respondent, it did not 

amount to a violation of due process. See Tejeda-Mata v. INS, 

supra, at 727; Ka Fung Chan v. INS, supra, at 258. 

The respondent's final procedural objection is that he was not 

given sufficient notice of his deportation hearing, in violation of 8 

C.F.R. § 242.1(b) (1982) and the requirements of due process. The 

regulation cited by the respondent provides that an alien shall be 

notified of the time and place of his deportation hearing not less 

than 7 days before the hearing date, unless the Service believes 

that the public interest, safety, or security requires shorter notice, 

or unless the alien requests shorter notice- 8 C.F.R. § 242.1(b) 

(1982). The Service complied fully with this regulation in the respondent's case because the district director found the public interest required the respondent to undergo an immediate hearing and 

issued a written notification to that effect. 

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Moreover, the district director's decision to issue the notice appears to have been reasonable. Both of the parties' briefs on appeal 

agree that the respondent's deportation hearing was held without 

the standard 7 days' notice because Alaska did not have a full-time 

immigration judge at the time of the respondent's arrest; rather, 

an immigration judge traveled from Seattle, Washington, to spend 

a few days in Anchorage, Alaska, on a quarterly visit to the city. 

The Service has argued that the district director believed it to be in 

the public interest to schedule an immediate hearing because the 

respondent was unable to raise money for bond and the Service 

was faced with the dilemma of holding a hearing on short notice, 

or keeping the respondent in detention, at public expense, until the 

immigration judge returned to Alaska. It was not unreasonable for 

the district director to conclude that it would be in the public interest to avoid the costs of detaining the respondent at public expense 

until the immigration judge returned to Anchorage, for this is a 

time in which our nation is faced not only with immigration costs 

that are rising at an alarming rate but also with a staggering federal budget deficit. See generally, Lopez-Mendoza v. INS, 705 F.2d 

1059, 1091-92 (9th Cir. 1983) (Alarcon, J., Wright, J., Wallace, J., 

and Poole, J., dissenting). Nor was it unreasonable for the respondent to be required to face a deportation hearing on short notice: the 

charge that he was deportable as an overstay was capable of resolution by the mere fact of his presence in this country beyond his 

authorized time and was not subject to any defenses which would 

require expertise in immigration law. In addition, the respondent 

had the opportunity, which he exercised, of seeking a continuance 

of his hearing. See 8 C.F.R. § 242.13 (1982). 

The respondent has received all of the basic prerequisites of a 

fundamentally fair hearing: he was notified of the charge against 

him 2 days before he chose to proceed with his hearing; he was 

given the opportunities to retain counsel, to be heard, and to 

produce evidence and witnesses to refute the evidence against him; 

and his case was decided by an unbiased immigration judge and by 

the Board based upon substantial evidence of record. See 'Whitfield 

v. Hanges, 222 F. 745 (8th Cir. 1915). Thus, inasmuch as none of the 

alleged procedural defects, individually or in the aggregate, affected the outcome of the respondent's case or the validity of the deportation order, we cannot agree that he has been denied constitutional due process. Accordingly, the appeal will be dismissed. 

We note that the respondent has contested the immigration 

judge's grant of voluntary departure. We need. not decide whether 

it was reasonable for the immigration judge to grant the respondent 1 day to arrange his departure inasmuch as he has now been 

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able to extend his time in this country by virtue of this appeal. See 

8 C.F.R. § 3.6(a) (1984). Generally, when we dismiss an alien's 

appeal, we reinstate the immigration judge's grant of voluntary departure if that grant is less than 30 days. Matter of Chouliaris, 16 

I&N Dec. 168 (BIA 1977). In the respondent's case, however, we will 

modify the immigration judge's order and grant the respondent 15 

days for voluntary departure in order to give him more time to prepare for departure.° 

ORDER: The appeal is dismissed. 

FURTHER ORDER: In lieu of deportation, the respondent is 

permitted to depart voluntarily from the country without expense 

to the Government within 15 days from the date of this order, or 

any extension beyond that date as may be granted by the district 

director and under such conditions as he may direct. In the event 

of failure so to depart, the respondent shall be deported as provided 

in the immigration judge's order. 

The respondent has submitted various letters and documents to us on appeal 

which attest to the validity of a marriage between him and a woman identified 

solely as Shirley Santos. It appears from the notice attached to these exhibits that 

the respondent may be seeking to challenge the district director's failure to act 

upon a visa petition which he alleges was filed on January 28, 1983. Initial action on 

such a visa petition is a matter solely within the jurisdiction of the Service, not the 

Board. See 8 C.F.R. § 204.1(a) (1984). Since we have no explanation or motion before 

us regarding these documents and no original jurisdiction to decide matters pertaining to a visa petition, we will return these documents to the attorney for the respondent 

113