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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