Before WRIGHT, Chief Judge, BAZELON,. Circuit Judge, and PARKER,.. District Judge.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the Immigration and Naturalization service.
Petitioner Goziam Thomas Attoh, a citizen of Nigeria, seeks review of a deportation order issued by the Immigration and Naturalization Service on February 20, 1976, and of various administrative decisions declining to reopen or reconsider his situation. We conclude, based on the totality of circumstances in the case, that the proceedings against Attoh did not comport with due process of law. Accordingly, we remand for a new deportation hearing. I
Some time around 7:00 A.M. on Thursday, February 19, 1976, two I&NS officers came to the door of petitioner's apartment in the District of Columbia and conveyed him to the I&NS District Office. *fn1 The precise chronology of the events that followed cannot be discerned with certainty from the record. What is clear is that Attoh offered some resistance and there was an altercation during which he was stripped, searched, and forcibly subdued. The episode left petitioner confined in a straitjacket in which he was to remain for four hours. One of the officers involved in the fray was treated for an injured toe.
At 3:30 that afternoon an I&NS officer served Attoh with a document entitled "ORDER TO SHOW CAUSE, NOTICE OF HEARING, AND WARRANT FOR ARREST OF ALIEN." *fn2 That document recited that petitioner had entered the United States on May 10, 1972 as a nonimmigrant student authorized to remain for two years, that on August 30, 1974 he was granted the privilege of voluntary departure, and that he failed to depart. *fn3 It contained a series of typed warnings among them that any statements made by petitioner might be used against him, that he could (at his own expense) retain counsel, and that at his deportation hearing he would be able to present evidence, cross-examine witnesses, and otherwise respond to the charges against him. The Order to Show Cause stated that Attoh was to appear before an Immigration Judge on March 5, 1976.*fn4 Several paragraphs later, however, it contained a section bearing the heading "REQUEST FOR PROMPT HEARING" which stated: "To expedite determination of my case, I request an immediate hearing, and waive any right I may have to more extended notice." Attoh signed beneath this statement. Neither the circumstances surrounding his decision to do so nor the temporal relationship between that decision and the fracas described above can be reliably determined.*fn5
The following day, Friday, February 20, Attoh's deportation hearing was held. He had spent the preceding night in jail and appeared without counsel. The Immigration Judge notified him at the outset that he could retain an attorney if he so desired. Thereafter the judge asked, "What do you want to do about having a lawyer?"*fn6 No response is transcribed. The judge then stated, "You'll speak for yourself, all right,"*fn7 and proceeded to question petitioner about the charges set forth in the arrest warrant. Attoh conceded his Nigerian citizenship, entry on a student visa, and failure to depart after being granted leave to do so voluntarily. *fn8 The colloquy between the judge and petitioner then touched in a rambling fashion on various allegations concerning the latter's supposedly fraudulent marriage to an American citizen and his use of a false address on various immigration forms. *fn9 In the course of his often confused responses petitioner made a number of potentially prejudicial concessions and admissions. Two I&NS officers then testified concerning petitioner's arrest and the subsequent altercation, after which Attoh gave his own version of those events. *fn10 He indicated he had signed the request for immediate hearing on the Order to Show Cause because he was told he had to, claimed he was confused and scared, and asserted that he was not aware of the precise charges against him.
Following Attoh's account the Immigration Judge delivered his ruling. *fn11 He stated that but for the post-arrest altercation this would have been a "border line case as to whether or not voluntary departure should be granted." *fn12 In light of that altercation, however, he concluded, "There is no longer any question that voluntary departure should be denied as a matter of administrative discretion, and the respondent will be ordered deported to Nigeria . . . ." *fn13 The judge then informed Attoh that he had ten days in which to appeal or, in the alternative, could immediately accept the decision as final. There followed a rather opaque discussion, at the close of which the judge concluded that petitioner did not wish to appeal. *fn14
Petitioner retained his present counsel shortly thereafter and moved to reopen and reconsider the matter of voluntary departure. The Immigration Judge denied this motion, and Attoh unsuccessfully sought relief from the Board of Immigration Appeals. After trying in vain to persuade the Board to reopen the case, he petitioned for review in this court. *fn15 II
The preceding narrative, we believe, reveals a series of procedural errors and infirmities which combine to raise grave doubts about the fairness of the way petitioner was treated. Deportation proceedings are governed by 8 U.S.C. § 1252(b) (1976). That section provides in relevant part:
. . . Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this chapter, as the Attorney General shall prescribe. Such regulations shall include requirements that
(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in ...