
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                                         -2-                                         -2-            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                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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                                         -6-                                         -6-            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).                   ____________                                         -7-                                         -7-                 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).            ___                                         -8-                                         -8-                 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                                         -9-                                         -9-            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).                                         -10-                                         -10-            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                                         -11-                                         -11-            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                                         -12-                                         -12-            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.                                         -13-                                         -13-                 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.                 _________________                                         -14-                                         -14-
