Gomez-Velazco v. Sessions

• Decision Date: 10 January 2018
• Docket Number: Nos. 14-71747,14-73303,s. 14-71747
• Citation: 879 F.3d 989
• Parties: Eladio GOMEZ–VELAZCO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

879 F.3d 989

Eladio GOMEZ–VELAZCO, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

Nos. 14-71747

14-73303

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2017, Portland, Oregon

Filed January 10, 2018

Navid David Shamloo (argued), Portland, Oregon, for Petitioner.

Leslie McKay (argued) and Blair T. O'Connor, Assistant Directors; Juria L. Jones, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice Washington, D.C.; for Respondent.

Before: Paul J. Watford and John B. Owens, Circuit Judges, and Gloria M. Navarro,^* Chief District Judge.

Dissent by Judge Navarro

WATFORD, Circuit Judge:

Under the Immigration and Nationality Act, the Department of Homeland Security (DHS) can seek to remove non-citizens from the United States through several different means. The most formal process involves a hearing in immigration court before an immigration judge, at which the individual to be removed can contest the charges against him and request various forms of relief from removal. See 8 U.S.C. § 1229a. Today, however, most non-citizens are ordered removed through streamlined proceedings—expedited removal, administrative removal, and reinstatement of removal—that do not involve a hearing before an immigration judge. See Jennifer Lee Koh, Removal in the Shadows of Immigration Court , 90 S. Cal. L. Rev. 181, 183–84 (2017) ; Shoba Sivaprasad Wadhia, The Rise of Speed Deportation and the Role of Discretion , 5 Colum. J. Race & L. 1, 2–3 (2014). The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS.

This case involves administrative removal under 8 U.S.C. § 1228(b). A DHS officer ordered Eladio Gomez–Velazco, a native and citizen of Mexico, removed from the United States. Gomez–Velazco contends that his due process rights were violated because he did not have counsel present at the outset of the removal process. We will assume that a violation occurred. The question we address is whether Gomez–Velazco must show that he was prejudiced by the violation. We conclude that he must and that he has not done so. We therefore deny his petitions for review.

I

Before discussing the facts of Gomez–Velazco's case, it will help to begin with a brief overview of how administrative removal works. Section 1228(b) authorizes DHS to order a limited class of non-citizens removed from the country without affording them a hearing before an immigration judge. To invoke § 1228(b), DHS must establish that the individual to be removed: (1) is not a citizen of the United States; (2) has not been lawfully admitted for permanent residence; and (3) has been convicted of an aggravated felony. 8 U.S.C. § 1228(b)(1), (2) ; 8 C.F.R. § 238.1(b)(1). Proceedings under § 1228(b) are summary in nature because if DHS establishes those three predicates, the individual is conclusively presumed removable and categorically ineligible for most forms of discretionary relief from removal. 8 U.S.C. § 1228(b)(5), (c) ; see United States v. Arrieta , 224 F.3d 1076, 1080–81 (9th Cir. 2000).

DHS commences administrative removal proceedings by serving you with a "Notice of Intent to Issue a Final Administrative Removal Order." 8 C.F.R. § 238.1(b)(2). The notice must allege each of the three predicates necessary to trigger eligibility for administrative removal. § 238.1(b)(1), (b)(2)(i). The notice must also advise you of certain rights, among them the right to be represented by counsel of your choosing at no expense to the government, the right to rebut the charges against you, and the right to request withholding of removal if you fear persecution or torture in the country to which you would be removed. § 238.1(b)(2)(i).

Upon service of the notice, you have ten days to file a response. § 238.1(c)(1). In the response, you can (among other things) attempt to rebut the charges, request an opportunity to review the government's evidence, and request withholding of removal. Alternatively, you can waive the right to pursue any of these options and concede that you are removable as charged.

If you do not file a response, or if you concede that you are removable as charged, a DHS official known as the deciding officer will issue a "Final Administrative Removal Order," which for ease of reference we will simply call a removal order. § 238.1(d)(1). To allow an opportunity for judicial review, the order may not be executed for 14 days unless you waive that waiting period in writing. 8 U.S.C. § 1228(b)(3) ; 8 C.F.R. § 238.1(f)(1).

If the deciding officer issues a removal order and you fear persecution or torture in the country to which you would be removed, the deciding officer must refer the case to an asylum officer to conduct a reasonable fear interview. 8 C.F.R. § 238.1(f)(3). If the asylum officer determines that your fear of persecution or torture appears reasonable, the case is transferred to an immigration judge for a hearing to determine whether you are entitled to withholding of removal. § 208.31(e). If the asylum officer determines that you do not have a reasonable fear of persecution or torture, you can seek review of that determination by an immigration judge. § 208.31(g). But if the adverse reasonable fear determination is ultimately upheld, the removal order may then be executed.

With that background in mind, we can turn to the facts of this case. DHS officers determined that Gomez–Velazco, then confined in county jail, appeared to be eligible for removal under § 1228(b). Shortly after Gomez–Velazco was released, DHS officers took him into custody pursuant to a warrant issued by the agency. The officers served him with a Notice of Intent to Issue a Final Administrative Removal Order. The notice alleged that Gomez–Velazco is not a citizen of the United States; that he has not been lawfully admitted for permanent residence; and that he has been convicted of an aggravated felony, namely, second-degree rape under Oregon law. The notice advised Gomez–Velazco of his right to contest the charges and his right to be represented by counsel of his choosing at no expense to the government.

The officers attempted to take a formal sworn statement from Gomez–Velazco, but he refused to give one without his attorney present. The DHS officers knew Gomez–Velazco had retained an attorney because two months earlier the attorney had notified them of Gomez–Velazco's pending application for a U-visa. See 8 U.S.C. § 1101(a)(15)(U). Although Gomez–Velazco refused to provide a sworn statement, he nonetheless admitted the allegations in the notice and conceded that he was removable as charged. He did not claim fear of persecution or torture in Mexico, but he declined to waive the 14–day waiting period for execution of the removal order. He made each of these decisions without the benefit of counsel's advice because his attorney was not present.

Immediately after Gomez–Velazco conceded that he was removable as charged, and before he had a chance to consult with his attorney, the deciding officer issued a removal order under § 1228(b). Because Gomez–Velazco had not waived the 14–day waiting period, he was not removed from the country, and before the waiting period expired his attorney filed a petition for review in this court challenging the validity of the removal order. We issued a stay of removal pending our resolution of the petition, which remains in effect.

II

Gomez–Velazco argues that the DHS officers violated his right to counsel by pressuring him into conceding removability without the advice of counsel, even after he told them that he did not want to give a sworn statement until he could speak with his attorney. We have jurisdiction to review this constitutional claim under 8 U.S.C. § 1252(a)(2)(D). As mentioned at the outset, we will assume without deciding that the officers' conduct violated Gomez–Velazco's right to counsel.

The question becomes whether Gomez–Velazco must show prejudice in order to prevail. The answer to that question requires a point of clarification as to the source of the right at issue. The Sixth Amendment does not afford a right to the assistance of counsel in immigration proceedings. Hernandez–Gil v. Gonzales , 476 F.3d 803, 806 (9th Cir. 2007). The right to be represented by counsel at one's own expense is protected as an incident of the right to a fair hearing under the Due Process Clause of the Fifth Amendment. Biwot v. Gonzales , 403 F.3d 1094, 1098–99 (9th Cir. 2005) ; see also 8 U.S.C. § 1228(b)(4)(B) ("the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as the alien shall choose"). Thus, an individual who asserts that he was denied the right to counsel in immigration proceedings is asserting that his right to due process was violated.

As a general rule, an individual may obtain relief for a due process violation only if he shows that the violation caused him prejudice, meaning the violation potentially affected the outcome of the immigration proceeding. Hernandez–Gil , 476 F.3d at 808 ; Biwot , 403 F.3d at 1100. That rule rests on the view that the results of a proceeding should not be overturned if the outcome would have been the same even without the violation. Gomez–Velazco contends that the rule should be different when a due process violation is predicated on denial of the right to counsel. In that context, he urges, prejudice should be conclusively presumed and automatic reversal should follow.

There is some support for the rule Gomez–Velazco advocates. In cases involving removal proceedings before an immigration judge, we have held that requiring an individual to proceed with the merits hearing without the assistance of counsel violates due process, absent a valid waiver of the right to counsel. See, e.g. , Hernandez–Gil , 476 F.3d at 806–08 ; Tawadrus v. Ashcroft , 364 F.3d 1099, 1103–05 (9th Cir. 2004). And in ...