The opinion of the court was delivered by: WEBER
A one count indictment charges the Defendant Sotirios Floulis under 8 U.S.C. § 1326 with re-entering the United States after he was deported without first obtaining the requisite permission of the Attorney General. At the non-jury trial on May 14, 1978, the Defendant testified and admitted all of the critical facts alleged in the indictment. Particularly, the Government established and the Defendant either admitted or failed to controvert the following facts. The Defendant, a Greek citizen, entered the United States illegally in 1970 as a crewman aboard the M/V Metten. On April 18, 1974, the Defendant was apprehended in Cleveland and was served with a warrant for his arrest, an order to show cause why he should not be deported, and a notice of a scheduled deportation hearing. On May 6, 1974, the Defendant married Judy Wancho before a Justice of the Peace in Painesville, Ohio. On May 8, 1974, an immigrant visa petition was filed on the Defendant's behalf. A deportation hearing was held in Cleveland on May 22, 1974 before an Immigration Judge who granted the Defendant the privilege of voluntary departure to either England or Greece by June 22, 1974. Pursuant to a letter from Attorney Kenneth Boukis who represented the Defendant at the deposition hearing, the voluntary departure date was extended to September 20, 1974. On October 24, 1974, the immigrant visa petition which was filed on May 8, 1974 was granted. After the Defendant's additional requests for extensions of the voluntary departure date were denied and after the Defendant's marriage to Judy Wancho was annulled, the Defendant was taken into custody on March 13, 1975, held pending deportation, and served with a deportation warrant. On March 14, 1975, the Defendant was advised that his applications for extensions of the voluntary departure date had been denied. Finally, on March 21, 1975, the Defendant was deported to Athens, Greece from New York City.
Before his departure, the Defendant was warned of the possible penalties awaiting deported aliens who re-enter the United States without first receiving the permission of the Attorney General to re-apply for admission. Despite this notice, the Defendant re-entered the United States on March 29, 1976, at Norfolk, Virginia after arriving aboard the M/V Livanos. On September 29, 1977, the Defendant visited the Pittsburgh office of the Immigration and Naturalization Service (hereinafter, "INS"). During an interview on that date with an INS officer, the Defendant admitted the facts critical to the charge under 8 U.S.C. § 1326, namely, that the Defendant entered the United States in 1976 after he was deported without first obtaining the permission of the Attorney General to re-apply for re-entry.
On November 8, 1977, the INS certified the nonexistence of any record indicating that the Defendant had applied for permission to re-apply for re-entry before re-entering the United States in 1976. The Defendant was indicated in November 1977, and he applied on Feb. 8, 1978 for permission to re-apply for re-entry into the United States. This application was returned for additional information, and on March 6, 1978 the Defendant's attorney re-submitted this application which is still pending.
The Defendant's whole defense to this charge is technical rather than substantive. The Defendant contends that his deportation in 1975 was unlawful and thus cannot provide the basis for a conviction under 8 U.S.C. § 1326, which prohibits deported aliens from re-entering the United States without the requisite permission of the Attorney General. Specifically, the Defendant argues that the failure of the INS to comply with its own regulations concerning the conduct of the deportation hearing and those concerning the denial of the Defendant's applications for voluntary departure results in a denial of due process as guaranteed by the 14th Amendment. The Defendant presumes that each and every failure to comply with INS regulations is tantamount to a denial of due process. For reasons set forth herein the Court notes that the Defendant here is not constitutionally entitled to a perfect deportation proceeding and that errors in the deportation proceeding do not necessarily constitute a denial of due process, see, e.g., Burquez v. Immigration Serv., 513 F.2d 751 (10th Cir. 1975); Jolley v. Immigration Serv., 441 F.2d 1245 (5th Cir.) Cert. denied 404 U.S. 946, 92 S. Ct. 302, 30 L. Ed. 2d 262 (1971).
This case presents two specific issues: 1) whether the Defendant may raise the validity of his prior deportation hearing as a defense to the indictment under 8 U.S.C. § 1326; and 2) whether the alleged violations of the administrative regulations resulted in a fundamentally unfair proceeding and in a consequent denial of due process.
Concerning the first issue, United States v. Bowles, 331 F.2d 742 (3d Cir. 1964) sets out the controlling Third Circuit rule that the defendant in a prosecution under 8 U.S.C. § 1326 may collaterally attack the validity of a prior deportation hearing to show that he was not deported "according to law," 331 F.2d at 749. The mandate of Bowles that a defendant be deported "according to law" requires that the defendant receive during his deportation procedures some
of those procedural and substantive protections generally encompassed by the due process clause of the 14th Amendment as applied to deportation hearing procedures, see The Japanese Immigrant Case, 189 U.S. 86, 23 S. Ct. 611, 47 L. Ed. 721 (1903). In deciding what specific protective rights the due process clause provides to aliens, courts have historically examined the deportation proceeding under scrutiny from the standpoint of fundamental fairness, see, e.g., Bridges v. Wixon, 326 U.S. 135, 154, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945). Conversely to safeguard against fundamental unfairness in deportation hearings, the courts have formulated an analytical approach which would allow the prior deportation proceedings to stand as valid unless convinced by the defendant that there was a "gross miscarriage of justice in the former proceedings." United States ex rel Steffner v. Carmichael, 183 F.2d 19, 20 (5th Cir. 1950) (quoted with approval, McLeod v. Peterson, 283 F.2d 180, 184 (3d Cir. 1960)).
In holding invalid a deportation order resulting from a hearing which proceeded despite the absence of the alien's retained counsel, the Court in Chlomos v. Immigration and Naturalization Service, 516 F.2d 310 (3d Cir. 1975) enumerated the following requisites for due process in deportation proceedings 1) reasonable notice of the charges; 2) the privilege of counsel; 3) the opportunity to present evidence and cross-examine witnesses; and 4) a decision of deportability based upon reasonable, substantial and probative evidence, 516 F.2d at 313. See also, Cheng Fan Kwok v. Immigration Service, 392 U.S. 206, 209, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). The Defendant in the instant case makes no claim that his proceeding lacked any of the above requisites. Instead, the Defendant argues that the failure of the INS to comply with several regulations amounts to a denial of due process. Although we will later examine each of the claimed violations, we do not believe that the failure of the INS to comply with its regulations constitutes a Per se denial of due process rendering the Defendant's deportation proceedings constitutionally defective and requiring the dismissal of the indictment. The contours of the due process clause are too deeply rooted in lasting constitutional principles to depend upon administrative regulations for the specific protections the clause affords. What is "fundamentally fair" for a defendant in a prosecution under 8 U.S.C. § 1326 cannot vary each time the Attorney General amends the immigration regulations.
The Defendant contends that the indictment should be dismissed because the INS failed to comply with its regulations during the Defendant's 1975 deportation proceedings.
First, the Defendant contends that the Government has not proven in the instant case that the INS notified the Defendant that he may contact his consul, as provided by 8 C.F.R. § 242.2(e). INS official John Sigler testified that the Cleveland INS office orally notifies each alien that he may contact his consul but that the office does not specifically record in writing in each alien's file that the alien was so notified. Mr. Sigler could not specifically recall advising the Defendant that he could contact his consul. Nevertheless, the Court is satisfied by Mr. Sigler's explanation of his office procedures that the INS did, in fact, notify the Defendant that he could contact his consul.
The absence of such notice, however, would not require the dismissal of the Defendant's indictment because such notice would hardly be critical to the fundamental fairness of a hearing for a defendant who was represented by counsel at the deportation hearing.
Second, the Defendant argues that the deportation proceeding was "irregular on its face" and thus requires the dismissal of the indictment because the INS did not attempt to comply at the hearing with procedures set out in 8 C.F.R. § 242.16(a). This regulation requires the inquiry officer (in this case, the Immigration Judge) to advise the alien of his right to representation at the hearing at his own expense, of his right to present evidence and cross-examine adverse witnesses, and of his right to a simple explanation of the charges which the Government brings against him. The Defendant and his brother appeared together before the Immigration Judge for a joint deportation hearing. Our examination of the record of the hearing indicates that the Defendant was present when the Immigration Judge told his brother, who was not represented by counsel, that he had a right to be represented by counsel at no expense to the Government, and that he could object to the admission of any papers or documents. (Government Exhibit 6, Hearing Transcript, p. 2). Furthermore, the Immigration Judge explained to the Defendant's brother that he may be subject to deportation because the Government charged that he remained in the United States for a period of time exceeding that which alien crewmen are allowed to remain in the United States. The Defendant had the opportunity to hear these disclosures which satisfy 8 C.F.R. § 242.16(a). Even if the disclosures were not as adequate as they were, the Defendant had the benefit of an attorney familiar with deportation law with whom he presumably conferred before he came to the hearing where he did not contest the Government's charges.
Third, the Defendant contends that the Immigration Judge based her finding of deportability on statements of Attorney Kenneth Boukis who represented the Defendant at the deportation hearing without first obtaining from Defendant his confirmation that Mr. Boukis was authorized to speak for him. The Defendant's present counsel, Attorney Orlow, suspects that the Defendant acknowledged Attorney Boukis's authorization in an off the record conference, but Attorney Orlow argues that such an authorization contravenes both the letter and the spirit of 8 C.F.R. § 242.16(b) which states that the hearing officer shall require the respondent to either admit or deny the factual allegations of deportability presented by the Government. For at least four reasons, we cannot accept Mr. Orlow's reasoning: 1) 8 C.F.R. § 242.16(b) does not require that a respondent's authorization for his attorney to speak on his behalf be placed on a record; 2) 8 C.F.R. § 242.15 allows the inquiry officer to exclude from the record, in his discretion, any arguments about motions, applications, requests or the like; this allowance reflects the intention of the Attorney General that the record of a deportation hearing must not necessarily include all that occurred at the hearing; 3) the Defendant does not now contend that Mr. Boukis was in fact not authorized to speak on his behalf at the deportation hearing; and 4) the Defendant, who both understands and speaks English, did not object at the deportation hearing that Attorney Boukis had no authority to speak for him.
In sum, the evidence adduced at trial indicates that the officials of the INS in fact substantially followed the applicable regulations during the conduct of the Defendant's deportation hearing and that the Defendant's hearing was fundamentally fair.
The Defendant also argues that the INS did not follow its own regulations in regard to the Defendant's applications for extensions of his voluntary departure date. To achieve certain economies, an immigration official may in his discretion authorize the alien to depart voluntarily at his own expense before a specified date instead of being deported, i. e., taken into custody and accompanied by an INS official to the point of departure, 8 U.S.C. § 1252(g) (1977 Supp.); 8 C.F.R. § 244.1. Upon application by the alien, the voluntary departure date may be extended, 8 C.F.R. § 244.2. If the alien does not leave by the specified date, he may be apprehended and deported. If an alien departs voluntarily before the specified date, he may return to the United States without securing the permission of the Attorney General to ...