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

386 F.3d 940

Julio BALTAZAR-ALCAZAR; Maria Guadalupe Baltazar, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-73363.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2004.

Filed October 21, 2004.

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.^*

McKEOWN, Circuit 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.

I. BACKGROUND

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: "[W]e can do one of two things, either I can give you an opportunity to retain other counsel, someone other than an attorney from Mr. Valinoti's office or from Mr. Alexander's office. Alternatively, you can proceed and speak for yourself." (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:

Q: Well, to the female respondent, what do you wish to do? Do you wish to have your case heard with your husband's and go ahead and speak today or do you wish a continuance and have your case sent back to Judge Latimore where you can seek representation of anybody you wish before Judge Latimore?

A: I want to continue with this case together with my husband. I don't want us to be separated.

Q: Well, unfortunately your husband's case should have been heard a long time ago and it was not solely because of the fact that his attorneys did not appear with him and this matter's been dragging on for over two year's [sic] time. Are you saying you want to get another attorney to represent you?

A: I want to continue with the same attorneys we had before. We've spoken to them, they've apologized and they gave us a reason why they couldn't come last time.

Q: All right. Well, ... if you'd like to have the same attorneys represent you, then I would suggest that your case proceed separately before Judge Latimore. I've had no such explanation from either Mr. Alexander or Mr. Valinoti and I previously advised your husband that, you know, either he obtained other counsel for purposes of the merits hearing or that he be prepared to speak for himself. You've indicated that you wish to continue to be represented by counsel. You have that right. You don't have a right necessarily to have your case heard with your husband's case.... And since I believe your right to counsel takes precedence over any right to anything else and you've indicated that you want to have the same counsel represent you, I'm going to sever your case from your husband's and return it to Judge Latimore for further hearing and if, as you have stated, you wish to have Mr. Valinoti's [sic] represent you, then you will be free to do so.... Do you understand?

A: Yes, one moment, but —

Q: Do you understand?

A: If that's not possible, in other words what I want to do is to continue the case but not get separated. But if it can't be done, then okay.

Q: Well, I'll go off the record one moment and ask Judge Latimore if she's willing to hear both of your cases together. But if she's not, then your case will be going back to Judge Latimore and I will hear your husband's case here. I will not permit counsel to represent your husband in the hearing before this Court, given the previous inconvenience caused by counsel to this Court. This is a situation that we have a continuing problem with here in Los Angeles. Counsels are retained and changed on short notice out in the hallways, they come in frequently unprepared and it's — the situation is very frustrating for the Court and about all I can do when I'm inconvenienced as I was on the day that I previously set for your husband's merits hearing, when I was ready to go but he wasn't ready to go because of the failure of counsel to communicate with each other or failure of your husband to communicate with counsel or whatever, the bottom line is all I can do is say, "Fine, we'll put it over and give the respondent another chance to retain counsel and if he doesn't, proceed pro se." And that's pretty much what we've done here and I'm not going to — I'm going to hold to that position in this case.

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:

Q: So the question is do you want to go ahead and speak for yourself pro se with your husband's case today or do you want me to sever your case from your husband's and just hear yours separately represented by counsel of your choice at another time?

A: No, I'd like to continue together with my husband without an attorney.

Q: Without an attorney?

A: Without an attorney.

Q: All right. That's your choice.

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.

II. DISCUSSION

A. THE RIGHT TO COUNSEL

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) ("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 subject to removal hearings.") (emphasis added); Castro-O'Ryan v. United States Dep't of Immigration and Naturalization, 847 F.2d 1307, 1312-13 (9th Cir.1987) ("Congress has enacted a statute whose heading reads `Right to Counsel.'. . . . Congress wanted to confer a right. . . . If the prejudice to the alien is sufficiently great, there may indeed be a denial of due process itself."); Colindres-Aguilar v. INS, 819 F.2d 259, 261 n. 1 (9th Cir.1987) ("Petitioner's right to counsel is a statutory right granted by Congress under 8 U.S.C. § 1362, and it is a right protected by the fifth amendment due process requirement of a full and fair hearing.").

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...