Biwot v. Gonzales

• Decision Date: 14 April 2005
• Docket Number: No. 03-71456.,03-71456.
• Citation: 403 F.3d 1094
• Parties: Jona Kipkorir BIWOT, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.3d 1094

Jona Kipkorir BIWOT, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-71456.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2005.

Filed April 14, 2005.

COPYRIGHT MATERIAL OMITTED

Ryan P. McBride, Heller, Ehrman, White & McAuliffe, Seattle, WA, for the petitioner.

Michele Y.F. Sarko and Virginia M. Lum, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-812-262.

Before B. FLETCHER, McKEOWN, and GOULD, Circuit Judges.

McKEOWN, Circuit Judge.

Jona Kipkorir Biwot ("Biwot") petitions for review of a Board of Immigration Appeals ("BIA") order dismissing his appeal from an order of removal. The issue we address is whether Biwot was denied his right to counsel when the Immigration Judge ("IJ") allowed Biwot, who was incarcerated and diligently seeking representation, only five working days to obtain counsel. We conclude that Biwot was denied his statutory right to counsel and, accordingly, we grant the petition in part and remand to the BIA with instructions to remand to the IJ.

BACKGROUND

Biwot, a citizen of Kenya, came to the United States on a non-immigrant student visa in 1996 after winning a full scholarship to attend Northwest College in Kirkland, Washington.

In 1999, while he was still a student, Biwot was involved in a dormitory brawl that resulted in a conviction for third-degree assault. The conviction prompted the former Immigration and Naturalization Service ("INS") to charge Biwot with failure to maintain his student status.¹

At his first removal hearing, on July 3, 2002, Biwot appeared without counsel. When Biwot stated that he wanted to obtain free representation, the IJ provided him with a list of legal service providers and continued the hearing until July 9, 2002. On the day of the first hearing, Biwot was transferred from one detention facility to another, which made it difficult for him to contact the lawyers on the list. Biwot's efforts to find an attorney were further frustrated because the following day was Thursday, July 4, a national holiday. This quirk of timing left Biwot with only two business days — Friday, July 5, and Monday, July8 — to obtain an attorney before the next hearing.

Biwot was unable to find an attorney before the second hearing. He explained that he tried to get a lawyer, but the legal service providers told him that the application process took a week or two. Biwot asked the IJ for another two weeks, but the IJ responded that he thought two weeks was excessive and that he would continue the hearing until July 15, 2002.

On July 15, Biwot again appeared without counsel. The IJ asked why Biwot did not have an attorney and Biwot said: "Your Honor, I went back. I had written down the notice immigration on my paper work. I talked to them about it and they told me I'm supposed to put a name of lawyer." The IJ informed Biwot that the paperwork he had been filling out was only for petitioners who already had lawyers. He then said, "but if you're looking for [a lawyer], okay. Well, you are going to have to speak for yourself. You can continue your efforts to find an attorney, but we're going to have to go ahead and take pleading on the [Notice to Appear]."

The IJ immediately began to question Biwot, who presented no evidence other than his responses to the IJ's inquiries. The IJ determined that Biwot was removable and ineligible for any relief. After announcing his ruling, the IJ told Biwot that he could accept the decision as final or he could appeal. Biwot said, "Your Honor, I accept the decision as final because I cannot do anything right now."

Biwot later appealed to the BIA. In his Notice of Appeal, he alleged that "During my case hearing I never had a legal representative because I was detained and took several days to contact family. I didnt [sic] know how my constitutional rights were conducted [sic]." After he filed his appeal, Biwot wrote a letter informing the BIA that he had decided to apply for asylum and asking for his case to be sent back to him so he could work on his asylum application. When the BIA did not respond, Biwot sent a second letter inquiring about the status of the first letter. The BIA ignored both letters and dismissed the appeal on the ground that it lacked jurisdiction as a result of Biwot's statement that he would not appeal.

Biwot now petitions for review not only of the dismissal of his appeal but of the BIA's handling of his letters and consideration of the merits of his claims for relief. We address only the BIA's dismissal of his appeal and the related claim of denial of counsel.

DISCUSSION

I. JURISDICTION

As a threshold matter, we consider whether we have jurisdiction to address Biwot's claim that he was denied the right to counsel. The government contends that we do not because Biwot failed to exhaust his administrative remedies. We disagree.

Although we may not review a final order of removal unless an alien has exhausted all administrative remedies, 8 U.S.C. § 1252(d)(1), Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004), Biwot raised the claim of denial of counsel during the administrative process. He consistently asked the IJ for a reasonable extension to obtain counsel. Biwot's Notice of Appeal to the BIA stated, "During my case hearing I never had a legal representative because I was detained and took several days to contact family. I didnt [sic] know how my constitutional rights were conducted." The Notice of Appeal not only identified as an error Biwot's lack of representation, but it also alluded to the reason he was unable to obtain a lawyer — lack of time. Because Biwot was pro se at the time, we liberally construe his appeal, Barron, 358 F.3d at 676 n. 4, and conclude that the Notice of Appeal sufficiently preserved the denial of counsel claim.

The basis of the BIA's decision raises a second potential barrier to our review. The BIA held that it lacked jurisdiction because Biwot waived his right to appeal. See 8 C.F.R. § 1003.3(a)(1) ("A Notice of Appeal may not be filed by any party who has waived appeal...."); 8 C.F.R. § 1003.39 ("[T]he decision of the [IJ] becomes final upon waiver of appeal...."). Although the BIA is certainly correct in a semantic sense, simply concluding that Biwot "waived" his appeal begs the question whether the waiver was valid.

A waiver of the right to appeal a removal order must be "considered and intelligent" or it constitutes a deprivation of the right to appeal and thus of the right to a meaningful opportunity for judicial review. United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir.2004) (quoting United States v. Leon-Paz, 340 F.3d 1003, 1005 (9th Cir.2003)). Biwot's statement that he would not appeal can hardly be characterized as considered and intelligent. His comment that he was accepting the IJ's decision because he could "not do anything right now" reveals a fundamental misunderstanding of the effect of a waiver of appeal. Biwot was the victim of a double disadvantage — he was under the misapprehension that he had no choice but to waive his appeal and he labored under that cloud because he had been denied counsel. Surely an attorney would have disabused Biwot of any misconceptions about the conclusive effect of his statement. Because the waiver of appeal was not knowing and considered, the waiver does not strip us of jurisdiction.

II. DENIAL OF THE RIGHT TO COUNSEL

The right to counsel in immigration proceedings is rooted in the Due Process Clause and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A). See Baltazar-Alcazar v. INS, 386 F.3d 940, 944 (9th Cir.2004); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004) ("Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings."). The regulations that effectuate the right to counsel provide that "[t]he alien may be represented in proceedings before an [IJ] by an attorney or other representative of his or her choice." 8 C.F.R. § 1003.16(b).

The Supreme Court has long recognized that because deportation "visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom[,]... [m]eticulous care must be exercised lest the procedure by which [an alien] is deprived of that liberty not meet the essential standards of fairness." Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). One way we ensure that the "standards of fairness" are met is by guaranteeing that aliens have the opportunity to be represented by counsel. The high stakes of a removal proceeding and the maze of immigration rules and regulations make evident the necessity of the right to counsel. The proliferation of immigration laws and regulations has aptly been called a labyrinth that only a lawyer could navigate. Castro-O'Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir.1988).

To infuse the critical right to counsel with meaning, we have held that IJs must provide aliens with reasonable time to locate counsel and permit counsel to prepare for the hearing. Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir.1985). Absent a showing of clear abuse, we typically do not disturb an IJ's discretionary decision not to continue a hearing. Nonetheless, we cannot allow a "myopic insistence upon expeditiousness" to render the right to counsel "an empty formality." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

No bright line guides our consideration of what constitutes reasonable time. The inquiry is fact-specific and thus varies from case to case. We pay particular attention to the realistic time necessary to obtain counsel; the time frame of the requests for counsel; the number of continuances; any barriers that...