WALLACE, Circuit Judge:
Barraza-Leon (Barraza) appeals from his conviction after a non-jury trial of violating 8 U.S.C. § 1326 by returning to the United States without receiving the Attorney General's permission to reapply for admission after having been deported. We affirm.
In January of 1973, Barraza, an alien, pleaded guilty to a charge of violating 8 U.S.C. § 1325 for using a photo-altered permanent resident alien registration card. After serving the imposed sentence of imprisonment for 30 days, he and seven other aliens were found deportable in proceedings before the Immigration and Naturalization Service (INS) in El Centro, California.
Two days after being deported to Mexico, Barraza reentered the United States without receiving the consent of the Attorney General to reapply for admission as required by 8 U.S.C. § 1326.
After a nonjury trial on stipulated facts, Barraza was convicted as charged. His defense was that his 1973 deportation proceeding was illegal because he was denied due process of law, and that consequently he had not been "deported" within the meaning of section 1326. The trial court allowed him collaterally to attack the 1973 deportation proceeding, but found that he had been validly deported. On appeal, Barraza renews his contention that his earlier deportation was illegal.
The threshold issue we must decide is whether Barraza may collaterally attack his 1973 deportation proceeding. Despite the apparent statutory preclusion of such review by 8 U.S.C. § 1105a(c),
Barraza bases his contention that the 1973 deportation proceeding denied him due process of law on three theories: (1) holding a single proceeding in which several respondent aliens were simultaneously found deportable was a per se violation of due process, (2) both the immigration judge's failure specifically to inquire into Barraza's background to determine whether he might be eligible for relief from deportation, and (3) the manner in which the immigration judge informed Barraza of his right to be represented by retained counsel and accepted his waiver of that right denied him due process of law. We find no merit in any of these arguments.
A. The "Multiple Hearing" Procedure
Although he cites no authority in support of the proposition, Barraza insists that the "multiple hearing" procedure in which eight aliens were simultaneously found to be deportable was not sufficiently individualized to provide a fair hearing and thus should be declared a per se violation of due process.
Although deportation proceedings are civil in nature, and thus not subject to the full panoply of procedural safeguards accompanying criminal trials, Whetstone v. INS, 561 F.2d 1303, 1306 (9th Cir. 1977), we have held that due process must be afforded in deportation hearings. Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977). We have examined the transcript of the deportation hearing, and while this procedure, as any other, is potentially capable of abuse, we find no reason to declare all multiple hearings to be per se violative of due process. We believe that just as criminal trials often proceed with multiple defendants, deportation hearings may likewise include multiple respondents without automatically transgressing the bounds of due process.
Moreover, we have no basis for finding any constitutional deprivation on the specific facts before us. It appears from the record that eight aliens were simultaneously brought before the immigration judge
B. The Immigration Judge's Failure to Make an Inquiry Into the Facts
At the deportation hearing, the immigration judge informed Barraza that he was entitled to retain counsel and that he was free "to make a statement or present any evidence that you might have to show why you should not be ordered deported. That is, to show why you should be entitled to stay here."
Barraza now contends that this was insufficient, that the immigration judge was required to inquire specifically into his factual background to determine whether any relief from deportation might be available. As authority he cites 8 C.F.R. § 242.17(a) (1977) which provides, in part:
This language, asserts Barraza, required the immigration judge to ask him how long he had been in the United States. This inquiry would purportedly have revealed that Barraza was eligible for a suspension of deportation under 8 U.S.C. § 1254
We are unable to accept this argument for two reasons. First, it does not appear from the record that Barraza was entitled to any such relief. The stipulated facts say nothing about the length of his stay in the United States previous to his 1973 deportation. Indeed, an affidavit of his attorney (which apparently was never itself introduced into evidence) states that Barraza claims to have entered the United States for the first time in 1973, the very year he was deported. In his brief on appeal, Barraza now claims that the 1973 date was "erroneously typed" in place of 1966 — precisely seven years prior to the deportation. We cannot accept as fact such conclusory
Second, we are not convinced that even if Barraza had been eligible to apply for discretionary relief, the immigration judge would have been required to ferret out this information. Section 242.17(a) requires the immigration judge to inform the respondent of his "apparent eligibility." Until the respondent himself or some other person puts information before the judge that makes such eligibility "apparent," this duty does not come into play.
While it is likely that illegal aliens will often not know what grounds for relief might exist in their favor, they must at least be expected to know that the attorney they are expressly advised they are entitled to retain will be able to discover and argue such grounds.
C. The Adequacy of the Waiver of Counsel
Barraza's final argument is that he was insufficiently advised of his right to retain counsel, and that his waiver of that right was therefore inoperative. The immigration judge said to Barraza and his fellow respondents:
This, alleges Barraza, was inadequate because the immigration judge said merely "you may [be represented by counsel] if you wish," rather than that the respondents had a right to such representation. This argument borders on the frivolous. More clarity in the instruction by the immigration judge was not required.
Barraza's further arguments concerning his right to counsel are merely restatements of his contention, dealt with above, that the multiple hearing was inherently defective. Again, nothing in the record substantiates the conclusory allegations made in Barraza's brief.