Hernan Patricio Castro-O'ryan v. United States Department of Immigration and Naturalization

Citations: 847 F.2d 1307; 1987 WL 46530Docket: 86-7502

Court: Court of Appeals for the Ninth Circuit; May 26, 1988; Federal Appellate Court

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Hernan Patricio Castro-O'Ryan, a Chilean citizen, appeals the Board of Immigration Appeals' denial of his applications for withholding of deportation and asylum, which occurred on July 2, 1986. The Ninth Circuit Court of Appeals, led by Circuit Judge Noonan, has reversed the Board's decision and remanded the case for further consideration. Castro, born on April 10, 1955, in Vina Del Mar, Chile, entered the United States on a tourist visa in 1976 and became a permanent resident in 1980. 

In May 1981, he was indicted for cocaine trafficking, convicted of conspiracy to distribute cocaine, and sentenced to five years in prison, of which he served three years in a federal prison camp. Castro was noted for his exemplary behavior in prison, earning a reputation as a model prisoner and a stabilizing influence among inmates.

During deportation proceedings in 1985, Castro was informed of his right to counsel and was provided resources to obtain representation. He admitted to the deportation allegations and expressed a desire to apply for withholding of deportation and asylum, citing his involvement with the Christian Democratic Party in Chile and the repression he faced following the 1973 coup that dissolved political parties. His affidavit detailed his political activities and efforts to restore democracy in Chile, highlighting the risks associated with his activism.

In 1974 and early 1975, a student movement gained momentum at the University, aiming to strike and pressure the government for concessions to dissolved political parties. In August 1975, rumors emerged about Army Intelligence Officers infiltrating the student body. On October 21, 1975, the narrator was detained by soldiers in Santiago, taken to an isolated location, and subjected to harsh treatment. After being stripped of clothing and locked in a dark cell, he was later moved to a cold, dimly lit freezer where he was restrained and interrogated by an Army Intelligence Officer about the movement's activities and membership. The interrogator demonstrated extensive knowledge of the movement, indicating prior infiltration. After several hours of mistreatment, including exposure to freezing temperatures, the narrator was ordered to leave the country. He was returned to Santiago and subsequently went to his hometown, Vina Del Mar, where he informed his family of the ordeal. Following the incident, he developed pneumonia and chose to withdraw from the movement, informing its President of his decision and receiving advice to leave the country.

Final exams required commuting between the individual’s hometown and Santiago until December 1975, when family circumstances prompted the decision to leave Chile due to an order from an Army Intelligence Officer. The individual's uncle, Daniel Castro Lopez, had been arrested twice in 1973 and was reportedly shot and killed by the Army after his second arrest, which was linked to his involvement in an outlawed movement. After securing travel documents without issue, the individual left Chile for the United States on February 28, 1976.

In a deportation hearing on June 20, 1985, Judge Nail addressed Castro, who represented himself after his attorney, Daniel Carrasco, withdrew from the case. Castro requested a change of venue to San Francisco for the presence of material witnesses and his preferred attorney; however, Judge Nail stated he had not received this request, and even if he had, he might not grant it.

Judge Nail’s decision noted Castro’s fear of returning to Chile, advice to leave the country, and details of his uncle’s killing, but concluded that aside from one incident of mistreatment during detention in October 1975, there was insufficient evidence of persecution. Furthermore, Judge Nail ruled that Castro’s conviction for conspiracy to traffic in drugs disqualified him from asylum benefits under Sections 208 and 243(h) of the Immigration and Nationality Act. Castro’s subsequent appeal to the Board of Immigration Appeals, where he represented himself and did not receive oral argument, was denied. The Board affirmed the statutory ineligibility for withholding deportation due to his drug trafficking conviction, stating that while this statutory bar did not apply to asylum requests, it was a significant factor in determining whether asylum should be granted at the discretion of the authorities. Castro has since appealed to the court with legal representation.

Castro's statutory right to counsel was at the center of the analysis regarding his deportation proceedings. Historically, the significance of legal representation in such cases has been acknowledged, with references to the potential injustices faced by unrepresented aliens. Although the Sixth Amendment does not grant a right to counsel in deportation cases (as established in Ramirez v. INS), Congress has enacted 8 U.S.C. Sec. 1362, which mandates that individuals in deportation and appeal proceedings have the right to be represented by chosen counsel, at no expense to the government. Legislative history supports the intention to confer this right, and failure to uphold it can be deemed an abuse of discretion, potentially necessitating a remand.

The analysis indicates that if the denial of counsel results in significant prejudice to the alien, it could constitute a denial of due process. A fundamental unfairness must arise from a defect in the proceedings that leads to a denial of justice or a lack of essential due process elements. In Castro's case, he requested counsel in San Francisco, a request that was effectively denied without a ruling from Judge Nail. Castro did not make a competent and voluntary waiver of his right to counsel, as he was not given a genuine opportunity to secure representation.

The absence of counsel was found to be prejudicial, with Judge Nail committing a serious legal error by conflating the implications of a drug conviction for withholding deportation with its impact on asylum petitions. Unlike withholding, there is no statutory bar to granting asylum. Relevant case law further clarifies that the denial of counsel in Castro's situation was materially detrimental, warranting reconsideration of his case.

The Board based its decision on its precedent in Matter of Salim and relevant regulations, particularly 8 C.F.R. Sec. 208(f)(1)(iv), which mandates denial of asylum for aliens convicted of "a particularly serious crime." While the Board may reference these regulations in its asylum discretion, it cannot reduce its discretionary function to a strict application of a rule that treats criminal convictions as absolute bars. This would blur the distinction between asylum and withholding of deportation statutes. Castro, who lacked legal representation, struggled to articulate his fears of persecution during his examination by Judge Nail, leading to a prejudiced case. His written statements, which were likely overlooked, contrasted sharply with the superficial evaluation performed by Judge Nail. Although Castro had the chance to seek counsel for his appeal, the absence of legal assistance significantly impacted the fairness of the proceedings. The Board's review of the record was cursory, and it inadequately justified its conclusion that Castro had voluntarily opted to proceed without counsel. Furthermore, while the Board recognized that there was no statutory bar to asylum, it failed to specify the facts on which it exercised its discretion. The Board identified the drug conviction as a significant factor but neglected to consider other relevant factors, such as Castro's family support, rehabilitation, or potential dangers in Chile, and did not assess evidence indicating a well-founded fear of persecution based on political opinion, suggesting it viewed the drug conviction as conclusive.

The government contends that Judge Nail and the Board could have reasonably determined that the narcotics conviction was a significant factor overshadowing other considerations. However, the mere possibility of such a conclusion does not replace the necessity of discretionary evaluation. Regulations, while not binding, require the Board to consider all relevant factors. A serious criminal conviction can bar mandatory deportation relief but may only be a consideration in discretionary asylum grants. This distinction has been upheld in precedent, emphasizing the importance of discretion exercised by the Attorney General and delegates. 

Furthermore, the Board is required to make findings when exercising its discretion, and the court must understand the rationale behind the Board's decisions to ensure they are supported by substantial evidence. The absence of legal counsel during the proceedings hindered the proper application of criteria, leading to a fundamental error by the Board in affirming a flawed decision. Consequently, the case is reversed and remanded for further proceedings.