Lara v. Barr
| Citation | 962 F.3d 45 |
| Decision Date | 15 June 2020 |
| Docket Number | No. 19-1524,19-1524 |
| Parties | Ana Ruth HERNANDEZ LARA, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Sang Yeob Kim and Eloa J. Celedon, with whom Harvey Kaplan, Gilles Bissonnette, Henry Klementowicz, the American Civil Liberties Union of New Hampshire, and Celedon Law were on brief, for petitioner.
Deirdre M. Giblin, Iris Gomez, and Massachusetts Law Reform Institute on brief for Massachusetts Law Reform Institute, American Immigration Lawyers Association New England Chapter, Boston College Law School Immigration Clinic, Boston University Immigrants' Rights and Human Trafficking Program, Catholic Charities of the Archdiocese of Boston, Catholic Social Services of Fall River, Central West Justice Center, DeNovo Center for Justice and Healing, Greater Boston Legal Services, Immigrant Legal Advocacy Project, Justice Center of Southeast Massachusetts, MetroWest Legal Services, The Northeast Justice Center, Political Asylum/Immigration Representation Project, and University of Massachusetts Dartmouth Immigration Law Clinic, amici curiae.
Zoe Jaye Heller, with whom Katherine A. Smith, Trial Attorney, U.S. Department of Justice Office of Immigration Litigation, Civil Division, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
Before Barron, Stahl, and Lipez, Circuit Judges.
Ana Ruth Hernandez Lara ("Hernandez"), a native and citizen of El Salvador, entered the United States in the fall of 2013 without being admitted or paroled. She made her way to Portland, Maine, where she was living and working when she was arrested by immigration officers on September 20, 2018, and issued a Notice to Appear. Following her arrest, Hernandez was detained at the Strafford County Department of Corrections in Dover, New Hampshire ("Strafford County Jail"), where she remained throughout her removal proceedings.
Those proceedings culminated in an evidentiary hearing on the merits of Hernandez's application for relief from removal, during which Hernandez was required to represent herself. At the end of the hearing, an Immigration Judge ("IJ") denied Hernandez's claims for relief. With the assistance of her newly retained attorney, Hernandez appealed the IJ's decision to the Board of Immigration Appeals ("BIA") and filed a motion to reopen and remand. The BIA dismissed Hernandez's appeal, denied her motion, and ordered her removed to El Salvador.
Hernandez petitions for review on multiple grounds, but we need decide only one. Concluding that the IJ denied Hernandez her statutory right to be represented by the counsel of her choice, we grant the petition, vacate the BIA's decision, and remand for further proceedings consistent with this decision.
Over the course of her removal proceedings, Hernandez retained an attorney, lost that attorney, and attempted to find another to assist her in presenting the merits of her claims. Because Hernandez's efforts to secure counsel, her requests for additional time for that purpose, and the IJ's responses to those requests are at the heart of our analysis, we describe the relevant portion of each removal hearing. We then turn to the factual underpinnings of Hernandez's claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").
On October 11, 2018, three weeks after her arrest, Hernandez had her initial master calendar hearing.1 The IJ advised Hernandez of her "right to be represented at no expense to the government by counsel of [her] choice," and Hernandez confirmed that she had received the required list of low-cost legal services providers.2 The IJ then asked Hernandez whether she wanted an opportunity to find an attorney, and Hernandez responded that she had an attorney who was not aware of the hearing. The IJ told Hernandez that her next hearing would take place on October 18 and that she should have her attorney "enter an appearance as soon as possible."
On October 18, Hernandez appeared with her attorney, who entered a limited appearance for the custody and bond proceedings taking place that day. The IJ denied bond based on a Red Notice published by the International Criminal Police Organization ("INTERPOL")3 that accused Hernandez of being a gang member.4 The IJ continued the hearing for a week to October 25 -- without objection from the attorney for the Department of Homeland Security ("DHS") -- to allow Hernandez's bond attorney time to decide whether she would continue to represent Hernandez. The IJ ended the hearing by warning Hernandez that, if she did not have an attorney by her next hearing, she would "have to speak for [her]self and represent [her]self."
Hernandez appeared at her hearing the following week without an attorney. The IJ began by asking her about the status of her legal representation:
After confirming that the attorney's entry of appearance was limited to the bond hearing and that no other attorney had entered an appearance for the removal proceedings, the IJ informed Hernandez that she would have to "speak for [her]self and represent [her]self" that day.
The IJ proceeded to read Hernandez the allegations in the Notice to Appear. Following the reading, Hernandez admitted that she is not a United States citizen, that she is a native and citizen of El Salvador, and that she entered the United States without being admitted or paroled. The IJ therefore found Hernandez removable as charged under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United States without inspection. The subject of the hearing then shifted to relief from removal. In response to questions from the IJ, Hernandez testified that she was afraid of "[t]he gang" in El Salvador. The IJ determined that she might be eligible for withholding of removal or CAT relief -- he noted that "asylum is one-year barred"6 -- and instructed that Hernandez receive a Form I-589, the application for relief from removal.7 He told Hernandez that her next hearing would be in eight days, on November 2, and that she must "fill out the application completely in English" before then. He also told her that, if she found a lawyer before the hearing, she should tell the lawyer to enter an appearance as soon as possible.
On Friday, November 2, Hernandez again appeared without counsel. When the IJ inquired about the status of Hernandez's legal representation, she asked for time to find a new lawyer:
[T]he attorney that represented me on my first - on my first hearing, she called me and asked me if she was going to continue to represent me. I said yes, and then she just called me this past Monday telling me that she couldn't represent me anymore. So we've been calling to other attorneys. They say that they cannot take my case from one day to another, so they asked me to ask the judge if they could give me another day for them to review my file to see if they can take my case.
Without asking any further questions about Hernandez's efforts to find a new lawyer or acknowledging her request for more time, the IJ told Hernandez that she would "have to speak for [her]self and represent [her]self." The IJ then questioned Hernandez about her application for relief from removal:
To give Hernandez more time to fill out the application, the IJ set another hearing for November 8. He instructed Hernandez to "fill out th[e] application completely in English, consistent with [his] orders," and told her that if she failed to file her application on the morning of the next hearing, he might "deem [her] application ... abandoned."
The following Thursday, November 8, Hernandez appeared in immigration court for the fourth time, again without a lawyer. When the IJ asked Hernandez whether she had been able to find an attorney, Hernandez responded that her bond attorney had called her two days earlier to get her permission to turn over her case file to a new attorney. Hernandez told the IJ that she expected the new attorney to visit her at the Strafford County Jail either that day or the following day. The IJ told Hernandez that she would have to "speak for [her]self and represent [her]self" because she was "only consulting with an attorney" and no lawyer had entered an appearance.
The IJ then turned to the matter of Hernandez's application for relief from removal, asking whether she had filled out the form, as he had instructed her to do. Hernandez explained that someone at the jail had helped her fill out two pages of the paperwork and she gave the completed pages to the IJ. But the person who helped...
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