## Facts

- Jesus Aguilera-Enriquez, a Mexican citizen and lawful permanent resident since 1967, lived in Michigan with his family.
- After a 1971 trip to Mexico, customs officers searched him on reentry and found two grams of cocaine (no heroin).
- In 1972, he pleaded guilty in federal court to possession of cocaine under 21 U.S.C. § 844(a) and received a suspended one-year sentence, five years’ probation, and a $3,000 fine.
- Neither his criminal defense counsel nor the criminal court advised him that a narcotics conviction would likely result in deportation.
- INS charged him as deportable under INA § 241(a)(11), 8 U.S.C. § 1251(a)(11), based on the narcotics conviction.
- At his 1973 deportation hearing, he requested appointed counsel; the immigration judge denied the request, conducted the hearing, and ordered deportation without voluntary departure.
- After retaining counsel, he appealed to the BIA and separately sought to withdraw his guilty plea in criminal court under Federal Rule of Criminal Procedure 32(d).
- The BIA affirmed the deportation order, and Aguilera-Enriquez petitioned the Sixth Circuit for review.

## Issues

1. Whether due process requires appointment of counsel at government expense for a lawful permanent resident in deportation proceedings.
2. Whether a narcotics conviction is sufficiently final to support deportation when a motion to withdraw the guilty plea is pending.
3. Whether the denial of voluntary departure was an abuse of discretion.

## Decision

- Petition for review denied; deportation order affirmed.
- Due process does not require the government to appoint and fund counsel in deportation proceedings; the statutory right to counsel at no government expense is constitutionally adequate.
- The narcotics conviction was final for immigration purposes despite the pending motion to withdraw the guilty plea, because the judgment remained in effect and had not been vacated or reversed.
- The denial of voluntary departure was upheld because it was discretionary and no abuse of discretion was shown.

## Legal Principles

- Deportation proceedings are civil; the Sixth Amendment right to appointed counsel does not apply.
- Due process in deportation is satisfied by notice, a fair hearing, the opportunity to present and challenge evidence, and the right to retain counsel at the alien’s own expense.
- A criminal conviction supports deportation so long as it remains operative; collateral efforts to overturn it do not defeat finality unless the conviction is actually set aside.
- Voluntary departure is discretionary administrative relief and is reviewable only for abuse of discretion.

## Conclusion

The Sixth Circuit held that immigration authorities need not provide government-funded counsel in deportation hearings, that a narcotics conviction remains a valid basis for deportation while collateral challenges are pending, and that denying voluntary departure based on a controlled-substance conviction was within agency discretion.


Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975)