Soto v. Holder, 042613 FED5, 12-60238

Docket Nº:12-60238
Opinion Judge:PER CURIAM:
Party Name:JOSE FRANCISCO SOTO, also known as Jose Tapia Soto, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent
Judge Panel:Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
Case Date:April 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

JOSE FRANCISCO SOTO, also known as Jose Tapia Soto, Petitioner



No. 12-60238

United States Court of Appeals, Fifth Circuit

April 26, 2013

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A027 901 930

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.


Jose Francisco Soto petitions this court to review the dismissal by the Board of Immigration Appeals (BIA) of his appeal from a final order of removal. Soto argues that he is entitled to a new hearing because 8 C.F.R. § 1240.10(a)(1) unambiguously required the immigration judge (IJ) to have Soto "state then and there" at the removal hearing whether he desired representation and the IJ failed to elicit Soto's express statement. Soto posits that if an agency violates its own regulation and that regulation helps to protect a constitutional or statutory right, a new hearing is required without requiring the alien to show that the violation caused prejudice because such a violation is prejudice per se.

Because Soto's claim is grounded in his claim that he was denied the right to counsel, we have jurisdiction over the appeal. See Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). We review the BIA's decision and consider the IJ's decision only to the extent that it influenced the BIA. Ogunfuye v. Holder, 610 F.3d 303, 305 (5th Cir. 2010). The BIA's conclusions of law are reviewed de novo. Id.

We need not reach Soto's arguments that § 1240.10(a)(1) is unambiguous and that the BIA's interpretation of the regulation is not entitled to deference because, contrary to his assertion, Soto is required to make an initial showing of substantial prejudice. Section 1240.10(a)(1) provides that the IJ in a removal proceeding shall "[a]dvise the respondent of his or her right to representation, at no expense to the government, by counsel of his or her own choice authorized to practice in the proceedings and require the respondent to state then and there whether he or she desires representation." The regulation implements 8 U.S.C. § 1362, which provides that an alien "shall have the privilege of being represented (at no expense to the Government) . . . ." See 8 U.S.C. § 1362 (emphasis added).

As nothing in § 1362 required the IJ to elicit from Soto at the removal hearing an express statement as to whether he desired...

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