Montes–Lopez v. Holder
| Decision Date | 18 September 2012 |
| Docket Number | No. 08–70229.,08–70229. |
| Citation | 694 F.3d 1085 |
| Parties | Mario MONTES–LOPEZ, aka Mario Morales–Abrego, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.
Gregory G. Katsas, Aviva L. Poczter, and Craig A. Newell, Jr. (argued), U.S. Department of Justice, Washington, D.C., for the respondent.
Petition to Review an Order of the Board of Immigration Appeals. BIA No. A095–487–944.
Before: RICHARD R. CLIFTON, and MARY H. MURGUIA, Circuit Judges, and RANER C. COLLINS,* District Judge.
Petitioner Mario Montes–Lopez, a native and citizen of El Salvador, petitions for review of an order of removal. Petitioner's attorney failed to appear at a scheduled merits hearing before an Immigration Judge (“IJ”) because his license to practice law had been temporarily suspended. The Immigration Judge found that Petitioner may have learned of his attorney's suspension as much as eleven days before the hearing, and concluded that Petitioner was not diligent in bringing his attorney's suspension to the attention of the court. He denied Petitioner's motion to continue, proceeded with the hearing with Petitioner unrepresented by counsel, and denied Petitioner's application for asylum.
We conclude that the Petitioner's right to be represented in the proceedings by retained counsel, established under 8 U.S.C. § 1362 and related regulations, was violated. We also conclude that a petitioner so denied his right to counsel in an immigration proceeding is not required to demonstrate actual prejudice in order to obtain relief. We therefore grant the petition and remand for further proceedings.
Petitioner Mario Montes–Lopez, a native and citizen of El Salvador, entered the United States at Eagle Pass, Texas, on August 13, 2002. The Department of Homeland Security apprehended and detained Petitioner and initiated removal proceedings against him. On December 10, 2002, Petitioner appeared before the immigration court in San Antonio, Texas, and was granted a continuance in order to obtain counsel. Thereafter, attorney Gloria Lopez appeared on behalf of Petitioner and filed a motion to transfer the case to San Francisco, California. Ms. Lopez subsequently withdrew as counsel.
On April 10, 2003, Petitioner appeared in San Francisco before IJ Phan Quang Tue. Frank Sprouls, a pro bono attorney, appeared on Petitioner's behalf and indicated that the Immigration Law Clinic in Davis, California had agreed to represent Petitioner and requested a second continuance. The IJ granted the continuance, but warned Petitioner that this would be his last continuance. Thereafter, Petitioner hired attorney Otto Peña, and timely filed his application for asylum.
On May 12, 2004, Petitioner appeared before the IJ for his merits hearing. Mr. Peña was not present. Petitioner presented the IJ with a letter from Mr. Peña dated May 1, 2004, which stated:
Dear Immigration Judge:
the [sic] above mentioned person is scheduled for an individual hearing on May 12, 2004 at pm [sic]. Unfortunately, I am not able to represent him because I have been suspended from the bar until August 2004. I respectfully ask the court to continue this matter until September to allow me to continue representing him or so that he may obtain new counsel.
The IJ then questioned Petitioner about his contact with Mr. Peña:
At this point, the IJ placed Petitioner under oath and continued with the interrogation:
The IJ denied Petitioner's request for a continuance, finding that Petitioner lied to the court and that Petitioner's delay in seeking a continuance was unreasonable. The hearing proceeded with Petitioner appearing pro se.
After determining that Petitioner was not a credible witness, the IJ denied Petitioner's applications for asylum and withholding of removal, holding that young men in El Salvador resisting gang recruitment do not constitute a cognizable social group and that Petitioner failed to show past persecution. The IJ concluded that Petitioner was not entitled to protection under Article III of the United Nations Convention Against Torture (“CAT”) because according to the 2004 State Department Country Report on Human Rights Practices, the El Salvadoran government was actively combating gang violence, and thus Petitioner could not demonstrate that his torture would be sanctioned by the government.
The BIA summarily affirmed the IJ's decision without opinion and without discussing Petitioner's claim that his right to counsel was violated. We reversed and remanded, holding that the “BIA errs when it fails on appeal to consider and decide claims that the IJ proceedings suffered from procedural irregularity.” Montes–Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007). On remand, the BIA adopted and affirmed the IJ's decision, agreeing with the IJ's credibility determination and concluding that Petitioner could not establish that he was prejudiced by the denial of counsel at his merits hearing. This petition for review followed.
We must consider whether the IJ's denial of a continuance violated Petitioner's statutory right to counsel. This is a question of law which we review de novo. See Hernandez–Gil v. Gonzales, 476 F.3d 803, 804 n. 1 (9th Cir.2007).
The Sixth Amendment does not apply in immigration proceedings, but the Immigration and Nationality Act provides that “[i]n any removal proceedings before an immigration judge ... the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” 8 U.S.C. § 1362. Regulations require that immigration judges must “[a]dvise the respondent [in a removal proceeding] of his or her right to representation” and of “the availability of free legal services.” 8 C.F.R. § 1240.10(a)(1)-(2); see also8 U.S.C. § 1229a(b)(4)(A) (). Additionally, the Fifth Amendment guarantees that immigrationproceedings meet basic standards of procedural fairness. Baltazar–Alcazar v. INS, 386 F.3d 940, 944 (9th Cir.2004). We have recognized that denial of counsel or ineffective assistance of counsel in an immigration proceeding may violate the Fifth Amendment. Id.;Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir.1986).
Petitioner's right to counsel was violated when the IJ required him to proceed with the hearing without counsel. It was not Petitioner's fault that his retained attorney was suspended from practice. Although there might have been some confusion and conflicting testimony as to how many days before the hearing Petitioner learned about counsel's suspension, there was no basis to conclude that Petitioner had been aware of the problem for very long or was derelict in responding to it.
Petitioner's ultimate admission that he lied to the court was the result of the IJ's prolonged and hostile interrogation, which did not give Petitioner a fair opportunity to explain himself. The IJ ignored Petitioner's explanation that he made a mistake and that he was nervous and confused. Instead, the IJ forced Petitioner to admit to lying after submitting him to a confusing barrage of questions. We do not give significant weight to Petitioner's admission. Because the IJ did not identify any other problems with Petitioner's testimony, we conclude that the IJ's adverse credibility...
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