Baltazar-Alcazar v. I.N.S.
Decision Date | 21 October 2004 |
Docket Number | No. 02-73363.,02-73363. |
Citation | 386 F.3d 940 |
Parties | Julio BALTAZAR-ALCAZAR; Maria Guadalupe Baltazar, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
Vincent Chan, Law Offices of Sung U. Park, Los Angeles, CA, for the petitioners.
Paul Fiorino and Cindy S. Ferrier, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A74-803-331, A74-792-328.
Before: McKEOWN, BYBEE, Circuit Judges, and BREYER, District Judge.*
Julio Baltazar-Alcazar ("Mr.Baltazar") and Maria Guadalupe Baltazar ("Mrs.Baltazar") petition for review of a Board of Immigration Appeals ("BIA") order denying their application for suspension of deportation. The issue before us is whether the Baltazars were denied the right to counsel when the immigration judge banned an entire law firm from representing them at their deportation hearing. We conclude that the Baltazars did not knowingly and voluntarily waive their statutory right to counsel of choice and that they were prejudiced by the denial of that right. We grant the petition for review.
The background and sequence of the proceedings is important to our decision, so we recount the events in some detail. The Baltazars, both born in Mexico, entered the United States without inspection and have lived here since 1989. In late 1996, the Immigration and Naturalization Service ("INS") commenced separate deportation proceedings against each of them. Judge Martin presided over Mr. Baltazar's case, and Mrs. Baltazar's case was assigned to Judge Latimore. In the preliminary stages of the proceedings, James Valinoti represented both of them. Each admitted the factual allegations in the order to show cause, conceded deportability and applied for suspension of deportation.
On the day of Mr. Baltazar's originally-scheduled merits hearing, his counsel, Valinoti, delivered a substitute notice of appearance indicating that Stephen Alexander would be representing Mr. Baltazar. Neither Alexander nor Valinoti showed up for the hearing.
Frustrated by the attorneys' failure to appear, the judge told Mr. Baltazar: (emphasis added). Mr. Baltazar expressed his desire to find another attorney and the judge set a new date for his hearing. Judge Martin gave Mr. Baltazar a list of local legal aid agencies and cautioned him that if he failed to retain counsel by the date of the continued hearing, he would be expected to proceed pro se.
Before the rescheduled date for Mr. Baltazar's hearing, Mrs. Baltazar's case was consolidated with her husband's and transferred to Judge Martin. The motion to consolidate the cases was submitted to Judge Martin by Monica Hagan, an attorney from Valinoti's office. The Baltazars arrived for their consolidated merits hearing with Hagan as their attorney. At the outset of the hearing, Judge Martin played a recording of the earlier proceeding during which he banned Valinoti's entire firm from representing Mr. Baltazar. Judge Martin explained that the Baltazars' options were to "[e]ither go ahead and speak pro se before this Court, have Ms. Hagan represent just the female respondent separately and just have the case sent back to Judge Latimore or any other proposal that you care to make to the Court."
After a recess to confer with Hagan, the Baltazars appeared before Judge Martin without their counsel. The following colloquy regarding the Baltazars' representation by counsel ensued:
Judge Martin then went off the record and contacted Judge Latimore. When Judge Latimore refused to take the consolidated cases, Judge Martin again asked Mrs. Baltazar what she wanted to do:
The Baltazars, whose primary language is Spanish and who have only a sixth grade education, presented their case pro se. Judge Martin determined that the Baltazars met the continuous presence and good moral character requirements for suspension of deportation,1 but found that they failed to establish extreme hardship either to themselves or to their United States citizen daughter. The Baltazars appealed to the BIA, alleging that they were denied due process because they were not permitted to be represented by their attorney of choice at the consolidated merits hearing. The BIA held that the Baltazars waived their right to counsel and "have not alleged or demonstrated on appeal what testimony or evidence they were unable to present which would have established their eligibility for suspension of deportation." The BIA affirmed the IJ's decision, and this appeal followed.
The right to counsel in removal proceedings is derived from the Due Process Clause of the Fifth Amendment and a statutory grant under 8 U.S.C. § 1362. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004) () (emphasis added); Castro-O'Ryan v. United States Dep't of Immigration and Naturalization, 847 F.2d 1307, 1312-13 (9th Cir.1987) () ; Colindres-Aguilar v. INS, 819 F.2d 259, 261 n. 1 (9th Cir.1987) ().
In creating a statutory right to counsel, Congress recognized that aliens have a great deal at stake in removal proceedings and acknowledged the importance of representation by an attorney in those proceedings. As the Supreme Court...
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