United States v. Loaisiga

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1403



                              UNITED STATES OF AMERICA,



                                      Appellant,



                                          v.



                                DONALD JESUS LOAISIGA,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                            Cyr and Boudin, Circuit Judges,
                                            ______________



                             and Ponsor,* District Judge.
                                          ______________



                                 ____________________



            Jacqueline  Ross,  Assistant  United  States Attorney,  with  whom
            ________________

        Donald K.  Stern, United  States Attorney,  and Robert  E. Richardson,
        ________________                                _____________________

        Assistant  United States  Attorney,  were  on  briefs for  the  United

        States.

            Jeffrey M. Smith, by Appointment of  the Court, with whom  Peters,
            ________________                                           ______

        Smith & Moscardelli was on brief for appellee.
        ___________________


____________________



                                   January 15, 1997

                                 ____________________


____________________



        *Of the District of Massachusetts, sitting by designation.



BOUDIN, Circuit Judge.  Donald Loaisiga was indicted for
                         _____________



            reentering the United  States after having been deported.   8



            U.S.C.    1326.  Prior  to trial, the  district court granted



            Loaisiga's   motion  to   suppress  evidence  of   his  prior



            deportation,  an essential  element  of the  offense, on  the



            ground that the deportation hearing was fundamentally flawed.



            The government now  appeals in advance of trial, as permitted



            by 18 U.S.C.   3731, to challenge this ruling.



                 The pertinent  facts are almost all undisputed.  In July



            1987  Loaisiga  came to  the  United  States from  Nicaragua,



            entering as an  illegal immigrant.  He was  granted political



            asylum  in  April  1989  and  thereafter  attained  permanent



            resident status.   In  March  1992, Loaisiga  pled guilty  in



            Massachusetts state  court to  charges of armed  assault with



            intent to  murder and several  lesser related  offenses.   He



            received  a  10-year  suspended  sentence and  two  years  of



            probation.



                 On  March 23,  1994, the Immigration  and Naturalization



            Service served  on Loaisiga a show-cause  order, proposing to



            deport him  because he  had been convicted  of an  aggravated



            felony.  8 U.S.C.    1251(a)(2)(A)(iii).  Six days  later, on



            March  29,  Loaisiga appeared  for  a hearing  before  an INS



            immigration judge  who explained the purpose  of the hearing,



            told  Loaisiga that  he  had a  right  to be  represented  by


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counsel at no expense  to the government, and  confirmed that



            hehadbeen givenalistof entitiesthatprovidefree legalservices.



                 The immigration  judge asked Loaisiga  whether he wanted



            counsel  and  after several  unclear  replies, Loaisiga  said



            firmly that  he did  not.    Reminded  that  Loaisiga had  an



            automatic  right to a 14-day delay after service of the show-



            cause order,  8 U.S.C.    1252b(b)(1), the  immigration judge



            asked  Loaisiga  whether  he  wanted  to  waive  that  right.



            Loaisiga said he  did not.   The judge  then rescheduled  the



            hearing for April  19, 1994,  gave Loaisiga  another list  of



            legal service providers, and urged him to obtain an attorney.



                 At the April 19  hearing, the immigration judge inquired



            at  the outset  whether  Loaisiga had  arranged for  counsel.



            Loaisiga  told the  immigration judge  that no  one had  been



            willing  to take his case.   The immigration  judge said that



            Loaisiga would  have to represent himself  and proceeded with



            the  hearing.    Proof  of Loaisiga's  state  conviction  was



            offered, and  the judge  ultimately ordered that  Loaisiga be



            deported, as required by 8 U.S.C.   1251(a)(2)(A)(iii).



                 The immigration judge told Loaisiga that he could appeal



            to  the Board  of Immigration  Appeals and  asked whether  he



            wanted to do so.  Loaisiga said he did not.   The immigration



            judge  said  nothing  more  about  an  appeal,  omitting  any



            reference  to the  time to  appeal (within  ten days)  or the



            possibility of counsel  on appeal (allowed, as before, at the


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respondent's  own  expense).    Loaisiga made  no  effort  to



            appeal,   although  his   father  unsuccessfully   sought  an



            administrative stay, and in due course Loaisiga was deported.



                 After his deportation,  Loaisiga returned to  the United



            States.  He  was arrested and charged  under 8 U.S.C.    1326



            with  reentry  after  deportation.   That  statute  does  not



            suggest that the deportation  can be collaterally attacked in



            the  criminal case.   However, in  United States  v. Mendoza-
                                               _____________     ________



            Lopez, 481 U.S. 828 (1987), the Supreme Court ruled that such
            _____



            a collateral attack would be permitted if the deportation was



            fundamentally flawed and if the deportee had been effectively
                                ____



            denied a right to appeal the original deportation order.



                 Prior to trial in the district court, Loaisiga sought to



            invoke  Mendoza-Lopez  to obtain  dismissal  of  the case  or
                    _____________



            suppression  of evidence of his deportation.   He argued that



            he had not been adequately advised of his right to counsel at



            the deportation hearing and that  his appeal rights had  been



            frustrated in  various respects.  After a hearing on November



            21, 1995, the district  court granted the motion  to suppress



            on two different  grounds.  The government then  brought this



            appeal.



                 1.   The district court's  main reason for granting  the



            motion to suppress  was that the immigration  judge failed to



            advise Loaisiga  at the April 19, 1994, hearing that he had a



            right   to  representation   by   counsel.     There  is   no


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constitutional right to  appointed counsel  in a  deportation



            proceeding.   Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988).
                          ______    ___



            But Congress  has provided that  a respondent may  obtain his



            own  counsel.   8 U.S.C.    1252(b)(2).   INS  regulations, 8



            C.F.R.   242.16(a), provide that at the hearing 



                 [t]he Immigration Judge shall advise the respondent

                 of his  right to  representation, at no  expense to

                 the  Government, by counsel of his own choice . . .

                 and require him to state  then and there whether he

                 desires representation; [and] advise the respondent

                 of the availability of free legal services programs

                 . .  .  located in  the  district  . .  .  ;  [and]

                 ascertain that  the respondent has received  a list

                 of such programs . . . .

             

                 We will  assume  without deciding  that  it would  be  a



            fundamental flaw  under Mendoza-Lopez  to fail to  advise one
                                    _____________



            threatened with  deportation of his statutory  right to self-



            obtained counsel.   See United States  v. Campos-Asencio, 822
                                ___ _____________     ______________



            F.2d 506, 509-10 (5th Cir. 1987).  But in this  case Loaisiga



            was told at  the initial hearing  on March 29  that he had  a



            right  to provide his  own counsel; in  fact, the immigration



            judge asked six questions on the subject because Loaisiga was



            at first unclear  in expressing  his desires.   Two lists  of



            providers were furnished.



                  When the government made  this argument to the district



            court, the district court replied that the advice provided at



            the  March 29  hearing did  not count.   Congress,  the court



            pointed  out, has required a 14-day  period to elapse (unless



            waived)  between  the show-cause  order  and  the hearing,  8


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U.S.C.   1252b(b)(1), and here the  March 29 hearing occurred



            only  six days after the  show-cause order.   In the district



            court's view, the advice had to be given at the outset of the



            April 19 hearing, after the 14-day period, which it was not.



                 The district court's reasoning, presenting a legal issue



            that we consider de novo, see United States v. Smith, 14 F.3d
                             _______  ___ _____________    _____



            662,  664-65  (1st Cir.  1994),  seems to  us  overly formal.



            Loaisiga was  plainly  told several  times  at the  March  29



            hearing  of his  right to  self-obtained counsel, and  he was



            then  given  three  weeks  to  seek   counsel.    Thus,  both



            objectives reflected in the statute  and regulation--advising



            the respondent of  his statutory right to  obtain counsel and



            providing him the statutory 14 days to do it--were  satisfied



            in this case.    



                 There  was nothing  unlawful in  convening the  March 29



            hearing,  even  assuming  that  would matter.    By  statute,



            Loaisiga  was  free to  waive the  14-day  delay, 8  U.S.C.  



            1252b(b)(1), although he  chose not to do so.   By that time,



            he  knew of his right  to obtain counsel  and, furnished with



            two lists, had three weeks to seek counsel.   It appears that



            he made unsuccessful efforts to obtain free assistance.



                 It is plain that the district judge was concerned  that,



            regardless  of  the  formalities  in  providing   advice  and



            allowing the  14-day period,  the immigration judge  had done



            too little  at the April 19  hearing to help Loaisiga  in his


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quest for counsel and  assuring him enough time to  find one.



            "Suppose," the  district judge said, "[Loaisiga]  had been in



            the hospital ill.  Suppose . . . he had been disabled for all



            of that three weeks.   There's no opportunity here  given for



            an explanation of what he had done in that three weeks."  



                 Such   solicitude   is   common  in   federal   criminal



            proceedings.  For example, in taking a guilty plea, the court



            not only complies with numerous formal requirements but seeks



            to be certain that the defendant knows what  he is doing, has



            been  adequately counseled, and is guilty of the crime.  Fed.



            R.  Crim. P.  11.   One might  think that  deportation, whose



            effects are more enduring than many convictions, would follow



            this pattern.



                 But deportations  are civil  matters, exempt  from Sixth



            Amendment protections, and  they are  primarily conducted  by



            administrative bodies and not by courts.  Accordingly, it has



            been  left primarily to  Congress and  to INS  regulations to



            dictate the  course of  proceedings--which  both bodies  have



            done in some  detail.  See  8 U.S.C.    1252b; 8 C.F.R.  part
                                   ___



            242.   Courts  normally require  nothing more  in the  way of



            procedural  protection, except  to prevent  flagrant abuses--
            __________



            normally those rising to the level of due process violations.



            United  States v.  Palacios-Martinez,  845 F.2d  89, 92  (5th
            ______________     _________________



            Cir.), cert. denied, 488 U.S. 844 (1988).
                   ____________


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Loaisiga said nothing at the April 19 hearing to suggest



            that he had been ill or disabled, or even that he wanted more



            time  and  had some  reason to  think  that he  might thereby



            obtain  counsel.    Nothing  in the  statute  or  regulations



            required  further  inquiry.    And absent  some  signal  from



            Loaisiga--such as a plausible request for a further delay--we



            do  not  think that  it  was  even  close to  a  due  process



            violation for the immigration judge to move on to the merits.



            Cf. United  States v. Baez-Ortega,  906 F. Supp.  740, 744-45
            ___ ______________    ___________



            (D.P.R. 1995), aff'd, 95 F.3d 1146 (1st Cir. 1996) (table).1
                           _____



                 2.   The   district  court  gave  a  second  reason  for



            granting  the  motion  to  suppress,  which  focused  upon  a



            different stage of  the INS proceeding.   The district  court



            said  briefly that  even assuming  that the  March 29  advice



            carried over  to the April  19 hearing, due  process required



            that Loaisiga be advised again at  the close of the April  19
                                                   _____



            hearing of his right to obtain his own counsel for an appeal.
                                                           _____________



            In the court's words:



                 The rights  [to self-obtained  counsel and time  to

                 seek  one] may not be as concrete and as easily and

                 well  understood at an earlier point as they are at

                 that point when the determination about deportation

                 is  being  made and  the  order  is being  entered.

                 That's the time at  which due process requires that

                 notice of the  alien's rights, including rights  to


____________________



                 1Only  the Ninth Circuit  has ever  suggested otherwise,

            and  its  ruling,  on  more extreme  facts,  occurred  before

            Congress added  the 14-day  waiting period.   Rios-Berrios v.
                                                          ____________

            INS, 776 F.2d 859, 863 (9th Cir. 1985).
            ___



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representation  of  counsel and  rights  to appeal,

                 must be given. 



                 By regulation, 8 C.F.R.   242.19(b), the respondent must



            be  told of his right  to appeal from  the deportation order;



            but  there is no statute or regulation prescribing that he be



            told anything  more if he says  on the spot that  he does not



            wish  to  appeal.      When  the  immigration  judge  ordered



            deportation at  the close of  the April 19  hearing, Loaisiga



            was told that he had a right to appeal, and he did say on the



            spot that he did not wish to appeal.  Thus, Loaisiga got what



            the regulation requires and nothing more.



                 Ordinarily,  in a  civil  proceeding, the  judge is  not



            obligated  to say  anything to  a pro  se losing  party about
                                              _______



            appeal  rights, let  alone about  the right  of the  party to



            provide  his  own  counsel  for  appeal.    Deportations  are



            obviously  special,  and  it  would  certainly  be  admirable



            administrative  practice  to  remind the  respondent  of  his



            continuing  right  to  representation  at  his  own  expense.



            Whether  failure to do so, where the respondent has just said



            that he does  not wish to appeal, is so  unfair as to violate



            the Constitution is quite another matter.



                 One might ask why  such advice is even pertinent  if the



            respondent flatly  disclaims any desire to appeal, especially



            where there does not appear to be much about which to appeal.



            Still, a respondent's inclination to appeal might be affected



            by  being  told  (again)  that he  could  be  represented  by


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counsel; Loaisiga has filed an affidavit  saying that this is



            so in  his case, although such  self-serving statements years



            after the fact are not very  compelling.  In all events, this



            interesting issue need not be decided here.



                 At  least  for  a   collateral  attack  on  a  now-final
                                     __________



            deportation order,  the defendant must show  prejudice in the



            sense  of a reasonable likelihood  that the result would have



            been different if the error in the deportation proceeding had



            not occurred.   Although nuances differ,  a prejudice showing



            appears to be required  in every circuit that  has considered
                                       _____



            such  collateral attacks  during a prosecution  under section



            1328.2   Several courts have found  this requirement implicit



            in  Mendoza-Lopez,  pointing  out that  absent  prejudice,  a
                _____________



            proceeding  cannot be  deemed  fundamentally  unfair.   E.g.,
                                                                    ____



            Espinoza-Farlo, 34 F.3d at 471.
            ______________



                 Even  a  showing  of  prejudice  would  not  suffice  if



            Loaisiga  had obtained a  fair opportunity  to file  a direct



            appeal  from  his deportation  order.   In  such a  case, the



            appeal is the means  to correct error and  a later attack  in



            the criminal  proceeding is barred.   Mendoza-Lopez, 481 U.S.
                                                  _____________



                                
            ____________________



                 2United States v. Fares, 978 F.2d 52, 57 (2d Cir. 1992);
                  _____________    _____

            Figeroa  v.  INS, 886  F.2d 76,  78  (4th Cir.  1989); United
            _______      ___                                       ______

            States  v. Encarnacion-Galvez,  964 F.2d  402, 408  (5th Cir.
            ______     __________________

            1992); United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th
                   _____________    ______________

            Cir. 1994); United States v. Polanco-Gomez, 841 F.2d 235, 237
                        _____________    _____________

            (8th Cir. 1988); United  States v. Proa-Tovar, 975  F.2d 592,
                             ______________    __________

            595 (9th Cir. 1992) (en banc); United States v. Meraz-Valeta,
                                 _______   _____________    ____________

            26  F.3d 992, 998 (10th Cir. 1994); United States v. Holland,
                                                _____________    _______

            876 F.2d 1533, 1537 (11th Cir. 1989).



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at 839.  But Loaisiga says that his opportunity to appeal was



            undercut by  the alleged  due process violation,  namely, the



            failure to remind him of his  right to counsel for an appeal.



            And we find  it harder to  resolve that issue than  to decide



            that, in all events, he has made no showing of prejudice.



                 The "right  to counsel," says Loaisiga,  is an exception



            to  the general  rule  that prejudice  must  be shown.    But



            argument by  talisman is not very  productive; impairments of



            the right to counsel  differ in degree and context,  and such



            differences affect whether and  to what extent prejudice must



            be shown.   See Scarpa  v. Dubois,  38 F.3d 1,  12 (1st  Cir.
                        ___ ______     ______



            1994),  cert. denied, 115 S.  Ct. 940 (1995).   Perhaps there
                    ____________



            may  be  deportations  where  a  denial  of  counsel  was  so



            flagrant, and  the difficulty of proving  prejudice so great,



            as to argue for presuming harm.   Cf. Lozada, 857 F.2d at 13.
                                              ___ ______



            But this is not such a case.



                 If there was error  at all in the deportation, it  was a



            failure  to  repeat  advice  already  given,  where  no  such



            repetition  was  required  by statute,  regulation  or direct



            precedent.    And  judging   whether  prejudice  occurred  to



            Loaisiga  is especially  easy in  light of  the statute  that



            governed the deportation and the admitted facts of this case.



            8 U.S.C.   1251(a)(2)(A)(iii)  provides that one convicted of



            an aggravated  felony "shall" be  deported, providing  little



            room to maneuver;  and Loaisiga has  never disputed that  his


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conviction  for  assault  with  intent  to  murder  fits  the



            "aggravated felony" pigeon-hole.



                 Loaisiga's brief  closes by saying that  if prejudice is



            required,  he can point to avenues of relief available to him



            which counsel  might have  pursued:   listed are  claims that



            Loaisiga was entitled to consular contact with the Nicaraguan



            government,  that the  underlying conviction  in state  court



            might have been set aside, that an application for "asylum or



            other  similar relief"  might have  been pursued, and  that 8



            U.S.C.    1251(a)(2)(A)(iii)  might  have been  challenged on



            constitutional  grounds  (e.g., because  Loaisiga's suspended
                                      ____



            state-court sentence shows that he posed no danger).



                 The government's  reply brief  parries each thrust.   It



            says, for  example, that  Loaisiga was ineligible  by statute



            for  "withholding  of  deportation" relief,  which  otherwise



            prohibits deportation  to  countries where  the alien's  life



            will be threatened.   8  U.S.C.    1253(h)(2)(B).    It  also



            appears  that   Loaisiga  was  debarred   from  discretionary



            "suspension  of  deportation" relief,  available  in hardship



            cases, id.   1254(a)(2), or for a discretionary "waiver" from
                   ___



            the Attorney General, id.   1182(c), because he had not lived
                                  ___



            in the United States for a sufficiently long period.



                 Loaisiga says that if appellate proceedings  had dragged



            on long enough, he might have met the time requirements.  But



            even if  this is  so,  there is  no hint  of  a showing  that


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Loaisiga  would  have met  the  explicit  criteria under  the



            suspension statute  or that  there is any  reason to  believe



            that  the  Attorney  General's  discretion  would  have  been



            exercised in his  favor, as  required under both  8 U.S.C.   



            1254(a)(2) and 8 U.S.C.   1182(c).



                 Similarly,  nothing suggests  that  Loaisiga could  have



            succeeded in  a  timely  effort to  vacate  his  state  court



            conviction,   nor  that   he  could   have  prevailed   in  a



            constitutional attack on 8  U.S.C.   1251(a)(2)(A)(iii).  See
                                                                      ___



            Mosquera-Perez  v.  INS, 3  F.3d  553, 559  (1st  Cir. 1993).
            ______________      ___



            These possibilities are a tribute to defense counsel's energy



            and imagination.  But based on Loaisiga's showing, we have no



            reason  to think  that Loaisiga had  any realistic  chance of



            success  in avoiding  deportation by  appeal or  in ancillary



            proceedings.



                 Finally, we turn to Loaisiga's related argument that his



            appeal rights  were unfairly impaired because  no mention was



            made in the April 19 hearing of the 10-day period for appeal.



            See  8 C.F.R.   242.21.  The  government has asked us to take
            ___



            judicial  notice  of  a  written  form,  allegedly  given  to



            Loaisiga at the time of  the show-cause order, which outlined



            his appeal rights including the 10-day period for appeal (and



            the right to employ counsel).   Loaisiga objects, saying that



            no  such  evidence was  presented to  or  relied upon  by the



            district court.


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This  judicial-notice  dispute   does  not  affect   the



            outcome.   It is  very  doubtful that,  as  a matter  of  due



            process, a respondent must  be told of the time  within which



            to  appeal  where, as  here,  he has  expressly  disclaimed a



            desire  to appeal.    But even  if  we assumed  otherwise,  a



            showing  of prejudice  would  still be  required.   And,  for



            reasons already set forth, Loaisiga has provided us no reason



            to think that an appeal would have altered the outcome.



                 We appreciate the concerns of the distinguished district



            judge who presided in this case.  But, in our view, there was



            no  showing   of  prejudicial   error   in  the   deportation



            proceedings  that would  justify the  collateral  attack here



            attempted.   The order  of  suppression is  reversed and  the
                                                        ________



            matter  is  remanded  to   the  district  court  for  further
                        ________



            proceedings.



                 It is so ordered.
                 _________________


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