Office of the Attorney General v. Honrado

5 N. Mar. I. 8, 1996 MP 15, 1996 N. Mar. I. LEXIS 2

• Court: Supreme Court of The Commonwealth of The Northern Mariana Islands
• Decided: June 27, 1996
• Docket: Appeal No. 94-044; Civ. Action No. 94-0883
• Status: Published

Opinions

TAYLOR, Chief Justice:

¶1 This is an appeal from an order of deportation entered against Veronica C. Honrado (“Honrado”), by the trial court on October 3, 1994. We have jurisdiction pursuant to 1 CMC § 3102 (a) and 3 CMC § 4342. We reverse.

ISSUE PRESENTED AND STANDARD OF REVIEW

¶2 The issue before us is whether Honrado ’ s statutory or due process rights were violated because the trial court judge did not inquire at the deportation proceeding whe ther she understood and waived her right to counsel of choice.

¶3 We review both the statutory and constitutional sufficiency of the proceedings de novo. See Office of Att ’y Gen. v. Rivera, 3 N.M.I. 436, 441 (1993) (deportation proceedings); Commonwealth v. Kaipat, 2 N.M.I. 322, 327-28 (1991) (interpretation and application of statute).

FACTS AND PROCEDURAL BACKGROUND

¶4 Honrado is a citizen of the Philippines currently residing in the Commonwealth of the Northern Mariana Islands (“CNMI”). She lives with her husband, Michael Batobato Estrada, and four minor children who are between the ages of two and five years. Mr. Estrada is a nonresident worker of Philippine citizenship. Honrado’s children are all United States citizens.

¶5 Honrado entered the CNMI on or around July 27, 1988, on a Nonimmigrant Entry Permit. The permit expired on May 26, 1989.¹ On June 6, 1989, Honrado filed a labor complaint against her then employer, Universal Ventures Company, Inc. and Ed Caceres, for unpaid wages. Pursuant to a settlement agreement reached with her former employer, Honrado’s return airfare to the Philippines would be paid by that employer.²

¶6 On September 7, 1994, Honrado was served with notice of a September 26,1994, hearing, an order to show cause as to why she should not be deported from the CNMI, and a notice entitled “Right to Legal Representation” (“Notice”). The Notice stated: “[t]he respondent is advised that he/she has a legal right to be represented at all stages of the deportation process by an attorney of one’s own choice. Counsel must be obtained at one’s own expense.” Id.

¶7 Honrado appeared at the deportation hearing without counsel. At the hearing, the trial court judge did not inquire whether Honrado understood and waived her right to counsel.

¶8 The court entered an order of immediate deportation on October 3, 1994. Honrado timely filed a notice of appeal and, on November 9, 1994, the trial court stayed the deportation order pending this appeal.

ANALYSIS

¶9 This Court is required to decide cases on non-constitutional grounds wherever possible. Estate of Tudela, 4 N.M.I. 1, 5 (1993). Therefore, we first address the statutory issue and then, if necessary, the issue of due process.

A. Statutory Waiver Requirement

¶10 Title 3, § 4341 of the Commonwealth Code establishes the procedures required for deportation proceedings in the Commonwealth. No court of the Commonwealth has issued a published decision interpreting this statute, and no provisions of the common law, as expressed in the Restatements of the Law, are applicable. Honrado urges us to view United States Immigration and Naturalization Service (“I.N.S.”) regulations as a benchmark for the statutory “minimum level of protection that must be afforded the alien during the hearing.” Br. of Appellant at 9 (emphasis in original). However, the federal and Commonwealth statutory schemes differ in key respects.

¶11 The I.N.S. regulations, which flow from the federal statutory right to counsel in immigration proceedings,³ mandate advice to an alien of his or her right to counsel at three stages of a deportation proceeding. See 8 C.F.R. § 242. Section 242.1(c) requires that an alien be advised of his or her right to counsel upon the service of the order to show cause, as well as of the “availability of free legal services programs [...] located in the deportation district where his [or her] deportation hearing will be held.” 8 C.F.R. § 242.1(c). Section 242.2(c)(2) mandates that an alien receive the same information regarding his or her rights to counsel from the officer serving an arrest warrant. Finally, § 242.16 requires that, at the hearing itself,

[t]he Immigration Judge shall advise the respondent of his [or her] right to representation, at no expense to the Government, by counsel of his [or her] own choice authorized to practice in the proceedings and require him [or her] to state then and there whether he [or she] desires representation; advise the respondent of the availability of free legal services programs [...] located in the district where the deportation is being held: [and] ascertain that the respondent has received a list of such programs.. .

Thus, the federal statutory right to counsel consists of a general statutory entitlement, which is supported by specific instructions for the I.N.S. to follow in serving orders to show cause, in issuing warrants, and in holding deportation hearings.

¶12 In the Commonwealth, deportation proceedings are governed by the terms of the Commonwealth Entry and Deportation Act of 1983 (“Deportation Act”). See 3 CMC § 4301 et seq. The Deportation Act contains two references to the right to counsel in deportation hearings. Title 3, § 4341 (c) of the Commonwealth Code, which governs service of the petition to show cause, requires that “[t]he petition shall be accompanied by a written advisement to the respondent of his [or her] right to be represented by counsel of his [or her] own choice.” 3 CMC § 4341(c). Subsection (d), governing arrest procedures, requires that “[w]hen an arrest warrant is served the respondent shall have explained to him [or her] the contents of the petition to show cause, the reason of his [or her] arrest and his [or her] rights to counsel.” 3 CMC § 4341(d).

¶13 However, § 4341 (e), which governs procedures at the hearing itself, does not mention the right to counsel or require the trial judge to obtain any waiver of that right. It merely provides that,

[a] hearing on the petition to show cause shall be before the Commonwealth Trial Court. A determination of deportability shall be made if there is clear and convincing evidence that the facts alleged as grounds for deportation are true. The court may receive in evidence any oral or written statement previously made by the respondent which is material and relevant to any issue in the case. Testimony of witnesses appearing shall be under oath or affirmation. The hearing shall be recorded pursuant to Trial Court procedure.

3CMC § 4341(e). The Deportation Act differs from the federal statutory right in that, rather than a general entitlement implemented by three separate regulations, the Deportation Act sets forth specific procedures which correspond to only two of the federal regulations and omits the third. It is the third part of the federal scheme, omitted from the Deportation Act, which is at issue here.

¶14 The record demonstrates that Honrado received her notice along with the order to show cause,⁴ thus satisfying the express terms of 3 CMC § 4341(c). Honrado was not arrested prior to the hearing; therefore, the terms of 3 CMC § 4341(d) were never triggered. Finally, there is nothing before this Court to indicate that the hearing held in the superior court deviated in any way from the procedures mandated by 3 CMC § 4341(e). Thus, the express terms of the statute were complied with in this case.

B. Due Process Waiver Requirement

¶15 Honrado also claims a violation of her right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, § 5 of the Commonwealth Constitution.⁵ Federal due process guarantees are applicable in the Commonwealth pursuant to Covenant §501. COVENANT TO ESTABLISH A Commonwealth of the Northern Mariana Islands in Political Union with the United States of America § 501. Moreover, the protections of Article I, § 5 of the Commonwealth Constitution are coextensive with the due process clauses of the U.S. Constitution. Rivera, supra, 3 N.M.I. at 445 n.3. No Commonwealth court has issued a published decision addressing the constitutional right to counsel in deportation hearings.

¶16 Federal decisions which discuss this right typically cite the Fifth Amendment, the statutory language of 8 U.S.C. § 1362, and the I.N.S. regulations at 8 C.F.R. § 242, without delineating the precise contours of the rights and privileges flowing from each source. See Baires v. I.N.S., 856 F.2d 89, 90-91 (9th Cir. 19W); Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985).⁶

¶17 However, Honrado is correct m pointing out that the basic right to counsel in deportation hearings flows independently from the Fifth and Fourteenth Amendments, as well as from the statute and regulations. (Br. of Appellant at 7 (citing Rios-Berrios, supra, 776 F.2d at 862)). The Ninth Circuit made clear in Colindres-Aguilar v. I.N.S., 819 F.2d 259, 260 n.1 (9th Cir. 1987), that “petitioner’s rightto counsel is a statutory right granted by Congress under 8 U.S.C. § 1362, and it is a right protected by the fifth amendment due process requirement of a full and fair hearing” (emphasis added). The U.S. Supreme Court in Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443 (1945), found that an I.N.S. failure to observe rules regarding the admissibility of evidence violated the Fifth Amendment where the procedural error was central to a finding of deportability. Id., 326 U.S. at 154-56, 65 S. Ct. at 1452-53. The Court held that “[m]eticulous care must be exercised lest the procedure by which [an alien] is deprived of [the ability to remain in the U.S.] not meet the essential standards of fairness.” Id., 326 U.S. at 154, 65 S. Ct. at 1452.

¶18 It is these “essential standards of fairness” which have been held to require that a pro se petitioner in a deportation proceeding be asked if she understands her right to counsel and wishes to waive that right. See Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988) (“[petitioner was denied due process when the INS failed to inquire whether petitioner waived his right to counsel” at a deportation hearing); Colindres-Aguilar, supra, 819 F.2d at 261 (analyzing claim that immigration judge failed to secure waiver at hearing as due process violation); Handlovitz v. Adcock, 80 F. Supp. 425, 427 (E.D. Mich. 1948) (holding that immigration judge’s failure to explain right to counsel in a way alien understood did not comply “with the requirements of a fair hearing”); In re Kosopud, 272 F. 330, 337 (E.D. Ohio 1920) (aliens, if advised of rights to counsel at deportation hearings, are not “denied counsel in such a way as to deprive them of a fair hearing”).⁷

¶19 The Fifth and Fourteenth Amendment waiver requirements established by federal case law are also rooted in the historic role of the judiciary as the arbiter of procedural due process rights, even in areas where courts defer to the legislative branch on substantive matters. Thus, while the U.S. Supreme Court has consistently refused to interfere with the power of the elected branches of government to set the substantive grounds for admission and exclusion of aliens, the Court does not allow this deference on matters of substantive law to erode the role of the judiciary to ensure that procedural safeguards are respected. As the Court held in Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737 (1954), “[p]olicies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.” Id., 347 U.S. at 531, 74 S. Ct. at 743. However, “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process.” Id. See Wixon, supra, 326 U.S. at 154; Reno v. Flores, 507 U.S. 292, 305-06, 113 S. Ct. 1439, 1449 (1993). By the same token, this Court’s deference to the Commonwealth Legislature in substantive immigration matters cannot override our duty to uphold constitutional procedural safeguards. This is especially true where our legislature has provided that the courts act as the forum in which deportation proceedings are to be held. See 3 CMC §4341.

¶20 In summary, even though federal l.N.S. regulations do not apply and Commonwealth statutory law is silent, the due process clauses of the Fifth and Fourteenth Amendments and Article I, § 5 of the Commonwealth Constitution require an inquiry on the record as to whether an alien appearing pro se understands and wishes to waive his or her right to counsel in a deportation proceeding. In this case, the record is clear that no inquiry occurred. Therefore, we hold that Honrado’s rights to procedural due process were violated.

C. Lack of In-Court Waiver of Right to Counsel Does Not Require Showing of Prejudice

¶21 The Ninth Circuit has consistently held that the failure to obtain a waiver of the right to counsel of choice at deportation proceedings, accompanied by prejudice to the alien, requires remand.⁸ However, the Ninth Circuit has yet to determine in a direct appeal case whether there must be a showing of prejudice where the defendant was not apprised of the right to counsel on the record at the deportation hearing.⁹

¶22 The Seventh Circuit has held that the failure of an administrative judge to obtain a waiver at deportation hearings, requires vacation of a deportation order even without a showing of prejudice. Specifically, in Snajder v. I.N.S., 29 F.3d 1203 (7th Cir. 1994), on facts substantially analogous to those here, the court held that the right to be represented by counsel in deportation proceedings “is too important and fundamental a right to be circumscribed by a harmless error rule . . . [t]he circumstances . . . call for the prophylactic remedy of vacating the order of deportation and for writing thereafter We find this reasoning on a clean slate.” Id. at 1207.¹⁰ most appropriate to the facts presented here.

¶23 We hold that pursuant to Article I, § 5 of the Commonwealth Constitution, due process mandates that a respondent in a deportation hearing be advised of his or her right to counsel. Here, the trial court should have made at least a brief inquiry as to whether Honrado wished to have representation at her own expense before proceeding with the deportation hearing.

CONCLUSION

¶24 Based on the foregoing, we VACATE the Superior Court’s deportation order and remand for further proceedings consistent with this opinion.

1 The Deportation order dated October 3, 1994, states that Honrado’s work permit expired on August 6,1988. This seems to be a typographical error. See Excerpts of R. at tab 5.

2 Id. at tab 3. Declaration of George P. Camacho, Acting Director of Immigration (Sept. 2. 1994).

3 That statutory right, codified at 8 U.S.C. § 1362, provides:

In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel authorized to practice in such proceedings, as he shall choose.

Id.

4 See Excerpts of R. at tabs 2 through 4.

5 The Fifth Amendment, applicableto federal agencies, provides that no person shall be “deprived of life, liberty, or property without due process of law.” U.S. Const, amend. V, cl. 2. The Fourteenth Amendment contains a similar limitation on state action. Id. amend. XIV, § 1. The concept of procedural due process implies that official action must meet a minimum standard of fairness to the individual, conferring the right, for example, to adequate notice and a meaningful opportunity to be heard. Art. I, § 5 of the Commonwealth Constitution is coextensive with the due process clauses of the United States Constitution.

6 Indeed, some of the cases in this area rely exclusively on the statutory and regulatory provisions without mentioning the constitutional protections. See Baires, supra, 856 F.2d at 91 (“we need not reach the constitutional issue if we find that a statutory right was violated”). However, none of these cases can be read to negate the Fifth Amendment right to counsel in deportation proceedings or the due process requirement of a valid waiver of that right when an alien appears pro se.

7 By a contrary reading of these cases, the Due Process Clauses would only guarantee and enforce the federal statutoiy right to counsel, which, as discussed above, does not apply in the Commonwealth. However, such a reading would make unnecessary these cases’ reliance on the Due Process Clauses. If the federal right to counsel were only statutory, there would be no need to call upon the Fifth and Fourteenth Amendments to enforce it. Moreover, such a reading of federal precedents, as applied to this case, would result in a lesser standard of constitutional due process protection in the Commonwealth than is guaranteed under the U.S. Constitution. Section 501 of the Covenant and Art. I § 5 of the Commonwealth Constitution provide due process protections coextensive with the due process clauses of the U.S. Constitution.

8 See Baires. supra, 856 F.2d at 91; Colindres-Aguilar, supra, 819 F.2d at 261: Rios-Berrios, supra, 776 F.2d at 863; Castro-O'Ryan v. I.N.S., 847 F.2d 1307, 1312-13 (9th Cir. 1988).

9 Rios-Berrios, supra, 776 F.2d at 863. This is disting-uishable from Cerda-Pena, supra, 799 F.2d 1374, where the court found that a collateral attack of a deportation order based on a violation of due process required a showing of prejudice. In Cerda-Pena, the appellant appealed his conviction for illegally re-entering the United States under 8 U.S.C. § 1326. Under § 1326, an alien may not be convicted for illegally re-entering the U.S. unless he or she has previously been lawfully deported. Appellant was deported and that deportation was the basis for the indictment charging appellant with violating § 1326. The court held that an alien who wished to challenge the legality of a previous deportation order bore the initial burden of producing evidence indicating that a violation of an INS regulation that occurred during the alien’s deportation prejudiced his or her interests protected by the regulation in such a manner as to actually have the potential for affecting the outcome of the proceedings. Once such a showing of prejudice was made, then the burden shifted to the government to show that the violation could not have changed the outcome ofthe deportation proceeding. Id. at 1379. However, the Court stated that it “expresse[d] no opinion as to whether a lesser showing of prejudice should be required on a direct appeal of a deportation decision as opposed to a collateral attack of a previous deportation.” Id. at 1379, n.8. In addition in Cerda-Pena, since the defendant had a hearing below, he had the opportunity to introduce evidence of prejudice. However, in a direct appeal as we have here, there is limited opportunity to show prejudice based on the record.

10 See Castaneda-Delgado v. I.N.S., 525 F.2d 1295 (7th Cir. 1975); Botanic v. I.N.S., 12 F.3d 662, (7th Cir. 1993).