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Keywords

appealhearingdue processdeportationnaturalization

attorneyappealhearingpleadue processdeportationnaturalizationguilty plea

Related Cases

Trench v. Immigration and Naturalization Service

Facts

Indigent petitioner was unable to secure counsel to represent him at his deportation hearing and subsequent appeal of the resulting deportation order, which was grounded upon convictions for crimes involving moral turpitude pursuant to 241(a)(4) of the Immigration and Nationality Act. Petitioner appealed the affirmance of the order, contending that lack of counsel deprived him of due process and the right to effective assistance of counsel.

Issue

Whether the lack of counsel at his deportation hearings amounted to a deprivation of petitioner's fundamental right to due process; whether petitioner was denied his sixth amendment right to effective assistance of counsel.

Petitioner raises two issues: First, whether the lack of counsel at his deportation hearings amounted to a deprivation of petitioner's fundamental right to due process; second, whether petitioner was denied his sixth amendment right to effective assistance of counsel because his attorneys at the underlying criminal proceedings failed to advise him of the possibility of deportation as a result of his guilty pleas to criminal offenses.

Rule

In a deportation hearing, due process requires that the alien be afforded a full and fair hearing. There is no right to appointed counsel in deportation proceedings, and the fact that an alien is without counsel is not considered a denial of due process, if he does not show that he was prejudiced thereby.

In a deportation hearing, due process requires that the alien be afforded a [*183] full and fair hearing. Wong Yang Sung v. McGraph , 339 U.S. 33, 49-51, 94 L. Ed. 616, 70 S. Ct. 445 (1950) . Section 242(b) of the Immigration and Naturalization Act, 8 U.S.C. 1252(b)(2) (1982) , provides that in such a hearing, 'the alien 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.' However, there is no right to appointed counsel in deportation proceedings, and 'the fact that an alien is without counsel is not considered a denial of due process, if he does not show that he was prejudiced thereby.' Burquez v. INS , 513 F.2d 751, 754 (10th Cir. 1975).

Analysis

The court applied the rule by examining whether petitioner was prejudiced at the deportation hearings due to the lack of counsel. It concluded that petitioner failed to demonstrate any prejudice, as he did not contest the truthfulness of the evidence against him and the immigration judge had sufficient evidence to establish his deportability based on his convictions.

Petitioner contends he was prejudiced by the lack of counsel for the following reasons. First, an attorney could have applied for a withdrawal of petitioner's guilty pleas to the underlying criminal convictions and for judicial recommendations against deportation. Such action, however, would not be related to the administrative deportation hearing per se, but rather would be an attempt to secure collateral relief from the judicially-imposed convictions. As demonstrated hereafter, petitioner cannot collaterally attack the legitimacy of his state criminal convictions in the deportation proceedings. Thus, it is irrelevant for our purposes that an attorney might successfully have applied for the withdrawal of the guilty pleas or the judicial recommendations against deportation.

Conclusion

The court affirmed the deportation order, holding that pro se petitioner was not denied due process where petitioner failed to demonstrate prejudice by lack of counsel.

Because petitioner has failed to demonstrate that he was prejudiced by the lack of counsel during his deportation hearings, we hold that he was not denied due process.

Who won?

The Immigration and Naturalization Service prevailed because the court found that the petitioner did not demonstrate any prejudice resulting from the lack of counsel during the deportation hearings.

The court affirmed the deportation order, holding that pro se petitioner was not denied due process where petitioner failed to demonstrate prejudice by lack of counsel and that petitioner could not collaterally attack legitimacy of final state criminal convictions which served as basis for his deportation.

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