ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Adams, Rosenn and Weis, Circuit Judges.
The extent to which an administrative agency may curtail a statutorily conferred right to the assistance of retained counsel is the main ingredient of this appeal. As a result of an adverse decision in an immigration hearing in February, 1974, which he in effect was required to attend without his lawyer, petitioner Chlomos was ordered to be deported. His subsequent appeal to the Board of Immigration Appeals was dismissed. We conclude that undue curtailment of the privilege of representation requires that we vacate and remand.
Petitioner is a Greek national who came to the United States as a seaman aboard the S.S. Resolute and deserted that ship on March 28, 1968 in Philadelphia. Although his temporary permit allowed him to stay in the country for twenty-nine days, he remained beyond that period.
On May 31, 1970, he entered into an alleged sham marriage for the purpose of staying in this country and on June 19, 1970, filed a petition for an immigrant visa based on that marriage. On June 24, 1970 he was granted the opportunity to leave the country voluntarily. The record does not disclose whether this privilege was granted as a result of the filing of the petition or whether there was an overlap in administrative proceedings.
Chlomos did not leave in the thirty-day period allowed and on July 8, 1970, he was served with an order to show cause*fn1 directing that he appear at the Immigration and Naturalization office in Newark, New Jersey for a hearing on "A DATE TO BE FIXED." No date was set, nor was a hearing ever held in Newark.
In January, 1972, both petitioner and one Louis Georgakilis were indicted in the district of New Jersey for conspiracy and defrauding the United States through a sham marriage.*fn2 Chlomos was the subject of an additional count for overstaying his leave. After petitioner pleaded nolo contendere to all counts on August 21, 1973, he received a suspended sentence and two years probation under the Youth Corrections Act. 18 U.S.C. § 5010 et seq.
At some time not specified in the record, Chlomos began to work as a race horse exercise boy -- employment which required him to travel between New Jersey and other states as the seasonal nature of the sport dictated. Counsel at argument represented that this travel was with the approval of the probation officers.
On Friday, January 25, 1974, an immigration officer who had participated in the earlier proceedings in New Jersey saw petitioner working at a race track near Miami, Florida and arrested him. He remained in jail until the case was called for hearing on the following Monday morning, January 28, 1974.
The hearing officer*fn3 was then told by Chlomos that he wanted to be represented by his lawyer. The hearing was continued until the following day, and the government officials were directed to give petitioner the use of a telephone. On Tuesday, Chlomos stated that he had not been able to telephone his attorney in New Jersey the preceding day but had talked to petitioner's employer who had been present at the hearing. The immigration judge then began to take testimony despite Chlomos' insistence that he wanted his lawyer. However, the prosecutor ("trial attorney") indicated that he was willing to give the petitioner more time, and the hearing was continued until the following Monday. The immigration judge warned petitioner that he would deny any motions to send the case back to New Jersey.*fn4
On the appointed day, February 4, Chlomos again appeared without counsel. The trial attorney advised the immigration judge that a lawyer -- apparently petitioner's New Jersey counsel -- had called the district director and requested that the case be returned to New Jersey. The immigration judge made no inquiry of the district director, nor did he attempt to contact the New Jersey Immigration and Naturalization office which had issued the show cause order. Petitioner had shown that order to the immigration judge on the preceding Tuesday, and hence he was aware of the existence of a case file there. Nevertheless, the hearing officer proceeded with testimony despite Chlomos' repeated requests for his lawyer.
Chlomos declined to cross-examine the agent or to make any statement about the exhibits. When asked to what country he wished to be sent, petitioner responded, "I need a ...