1938. His natural father registered his birth and recognized him as his son. The child's parents married approximately 21 years later. There is no indication as to whether the child's mother also recognized him as her natural son.

The subject of legitimation of children born out of wedlock is governed by the Civil Code of El Salvador. Given the time element in this request, two editions of this Code, published in 19261 and 1959,2 were consulted, the currency of which was verified using our Index to Latin American Legislation. According to our research, there have been no significant changes in the statutes governing the procedures for legitimation from 1926 to the present time.

3

Pertinent provisions applicable to the instant case state that a child born out of wedlock may be voluntarily acknowledged by his or her parents. Acknowledgment may be effected, among other ways, in the act of registration of the child's birth in the office of the Civil Registry.5 If a child has been acknowledged by both parents, their subsequent marriage legitimates him or her ipso jure. An ipso jure legitimation also takes place when the child is acknowledged by his or her parents in the wedding ceremony and this recognition is annotated in the record of marriage. Legitimation takes place regardless of the fact that the child may be dead."

There are two exceptions to the above rules, however, children conceived in an adulterous relationship cannot be legitimated by the subsequent marriage of their parents. This applies even in those cases where the married parent believed in good faith that she or he was no longer married at the time of conception. The second exception concerns putative marriages, which cause legitimation of children born out of wedlock only in those cases where at least one of the spouses was in good faith at the moment of contracting marriage. 10

The Civil Code also provides that, if the father has legally acknowledged the child or his paternity has been established by a court decision, and in either case the mother's name is established in the child's birth

1

1 Constitución y Códigos de la República de El Salvador [Imprenta Elzeviriana y Librería Camí, S.A. Barcelona, Spain, 1926].

2 Código Civil de El Salvador [C. Civ.] [Instituto de Cultura Hispánica, Madrid, Spain, 1959].

3 Index to Latin American Legislation 1950–60 [Library of Congress, G. K. Hall & Co., Boston, 1961] and Supplements.

4 C. Civ., art. 279.

5 C. Civ., art. 280.

6 C. Civ., art. 217.

7 C. Civ., art. 218(1).

8 C. Civ., art. 216(1).

9 C. Civ., art. 216(2).

10 C. Civ. art. 215.

record, there shall be no need for a formal acknowledgment of the child by the mother in order to be legitimated ipso jure by the subsequent marriage of the parents.

11

If there has been no previous acknowledgment of the child, there is no ipso jure legitimation as a result of the parents' marriage, but the parents, at any time after their marriage, can legitimate the child by means of a public instrument. 12

Children legitimated by their parents' subsequent marriage are considered as legitimate children conceived in wedlock and have the same rights. 13 However, the benefits of legitimation are not retroactive from the date of the parents' marriage. 14 Also, unless legitimated children are expressly excepted, the designation of legitimate children in laws, decrees, wills and contracts shall be understood to include legitimated children. 15

Based on the above paraphrased provisions, we may conclude that in the instant case the child was a natural one until apparently legitimated ipso jure by the subsequent marriage of his parents, provided that: (a) he was not conceived in an adulterous relationship between his parents; (b) his parents were legally married or at least had contracted a putative marriage, with one of them in good faith; and (c) he was acknowledged not only by his father but also by his mother, or at least her name was included in the birth record signed by his father.

" C. Civ., art. 218(2). 12 Ċ. Civ., art. 219.

13 C. Civ., arts. 214 and 225(1).

14 C. Civ., art. 225(2).

15 C. Civ., art. 226.

MATTER OF GUTIERREZ

In Deportation Proceedings

A-31404629

Decided by Board May 26, 1977

(1) Where the record showed that the immigration judge took scrupulous care to inform respondent of his right to be represented by counsel and of the availability of Legal Aid counsel at no charge to respondent and the immigration judge offered to adjourn the hearing to enable respondent to obtain counsel but respondent nonetheless desired to go ahead with the hearing, the respondent was sufficiently informed of his right to be represented by counsel at the hearing in compliance with 8 C.F. R. 242.16(a) and 8 C.F.R. 242.10.

(2) Where respondent's statements revealed no confusion or misunderstanding about the nature of the proceedings or of his right to be represented by counsel and there was no evidence that the respondent lacked a clear understanding of his right to be represented, the availability of Legal Aid counsel free of charge, or the consequences of proceeding without counsel, respondent's waiver of counsel was knowingly, intelligently and competently made.

(3) Where respondent's waiver of counsel was an effective and competent waiver, respondent's contention that failure of the immigration judge to appoint counsel at Government expense was a denial of due process, is without merit.

CHARGE:

Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of any law or regulation relating to the illicit possession or trafficking in marihuana

ON BEHALF OF RESPONDENT: Robert Guerra, Esquire

Legal Aid Foundation of Los Angeles

5228 Whittier Boulevard

Los Angeles, California 90022

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

The lawful permanent resident respondent, a native and citizen of Mexico, was found deportable under section 241(a)(11) of the Immigration and Nationality Act, as an alien convicted of a crime relating to the illicit possession of marihuana, at a hearing before the immigration judge on December 9, 1976. Upon finding that no relief from deportation was available, the immigration judge ordered the respondent deported to Mexico. The respondent now appeals the finding of deportability, alleg

ing that his lack of counsel at the hearing resulted in a denial of due process of law. The appeal will be dismissed.

The respondent was admitted for permanent residence as the spouse of a United States citizen on January 25, 1972. This marriage apparently ended in divorce. On March 1, 1976, the respondent was convicted in United States District Court for the Southern District of California upon a plea of not guilty to the offense of possession of 363 pounds of marihuana with intent to distribute. He was sentenced to imprisonment for a period of one year, and was required to serve a special parole term of five years. On appeal to the United States Court of Appeals for the Ninth Circuit, this judgment was affirmed on August 5, 1976. On October 22, 1976, the respondent was served with an Order to Show Cause charging him with deportability under section 241(a)(11) of the Act. At the December 9, 1976 hearing, the respondent waived the right to counsel, despite being advised by the immigration judge of the availability of Legal Services counsel at no charge to the respondent and despite the immigration judge's offer to continue the hearing to allow the respondent to seek legal assistance. The respondent conceded all the allegations in the Order to Show Cause, but denied deportability. The immigration judge found him deportable, and found that he was ineligible for any form of discretionary relief. The immigration judge therefore ordered the respondent deported to Mexico.

On appeal, the respondent, through counsel, contends that the immigration judge failed to advise him of his right to counsel, in violation of 8 C.F.R. 242.16. He also contends that the waiver of his right to counsel was not voluntary, understanding or competent. Last, he claims that the failure of the immigration judge to appoint counsel at the Government's expense denied him a fair hearing. The respondent argues that these deficiencies, taken separately or together, resulted in a denial of his right to procedural due process of law under the Fifth Amendment to the United States Constitution.

A deportation hearing is not a criminal proceeding. Zakonaite v. Wolf, 226 U.S. 272 (1912). Therefore, any right to counsel derives not from the Sixth Amendment, but from the Fifth Amendment right to a fair hearing. Barthold v. INS, 517 F.2d 689 (5 Cir. 1975). 8 C.F.R. 242.10 and 8 C.F.R. 242.16(a) provide that an alien shall have the right to counsel in a deportation proceeding at no expense to the Government, and that the immigration judge shall inform him of that right.

Counsel contends that the immigration judge's conduct at the hearing represented only a "feeble attempt" to inform the respondent of his right to be represented by counsel. We disagree. We note first that the Order to Show Cause served on the respondent contained a notification of the right to counsel at the deportation hearing. Murgia-Melendrez v. INS, 407 F.2d 207 (9 Cir. 1969). Second, even a cursory reading of the

transcript of the hearing reveals that the immigration judge took scrupulous and commendable care to inform the respondent of his right to be represented, the availability of legal counsel from Legal Aid at no charge to the respondent, and his willingness to adjourn if the respondent desired to secure Legal Aid counsel (Tr. p. 1). The respondent, however, expressed his desire to "go ahead with the hearing" (Tr. p. 2). We find that the respondent was sufficiently informed of his right to be represented at the hearing.

Counsel next alleges that the immigration judge did not "attempt to ascertain whether the respondent was competent to make the waiver" of counsel (Respondent's Brief, p. 5). The right to counsel outlined in 8 C.F.R. 242.10 may be waived by the alien. Millan-Garcia v. INS, 343 F.2d 825 (9 Cir. 1965); Dentico v. INS, 280 F.2d 71 (2 Cir. 1960); see Appleman, I., "Right to Counsel in Deportation Proceedings," 14 San Diego L.R. 130 (1976). However, since the right to counsel is an important right often essential to the fundamental fairness of a hearing, meticulous care must be exercised to insure that a waiver of this right is competently and understandingly made. De Souza v. Barber, 263 F.2d 470 (9 Cir.), cert. denied 359 U.S. 989 (1959); Bridges v. Wixon, 326 U.S. 135 (1945). It is the duty of the immigration judge to insure that a waiver of the right to counsel is competently and understandingly made. Kovac v. INS, 407 F.2d 102 (9 Cir. 1969); U.S. ex rel. Castro-Louzan v. Zimmerman, 94 F. Supp. 22 (E.D. Pa. 1950). The criteria for determining whether the right to counsel has been competently waived are identical to those employed to determine the competency of a confession. Murgia-Melendrez v. INS, supra. Therefore, in assessing the competency of a waiver of the right to counsel, the respondent's age, intelligence, education and ability to comprehend must be considered. Murgia-Melendrez v. INS, supra.

We have reviewed the record transcript, and find no evidence that the respondent lacked a clear understanding of his right to be represented, the availability of Legal Aid counsel free of charge, or the consequences of proceeding without counsel. The respondent is 28 years old and has lived and worked in the United States for four years. Although he has had only four years of education, the hearing was conducted in the respondent's native Spanish, and the respondent's statements reveal no confusion about or misunderstanding of the nature of the proceedings or of his right to be represented. The immigration judge is not required to state for the record that he finds the respondent competent to waive counsel. Our review of the record satisfies us that the respondent's waiver of counsel was knowingly, intelligently and competently made. Burquez v. INS, 513 F.2d 751 (10 Cir. 1975). We therefore find that the respondent's second contention is without merit.

Counsel's last contention, that the immigration judge's failure to