Ledesma v. Garland
| Decision Date | 06 April 2021 |
| Docket Number | No. 20-1667 NAC,20-1667 NAC |
| Parties | JONATHAN JOSE LOGAN LEDESMA, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of April, two thousand twenty-one.
Jonathan Jose Logan Ledesma, pro se, Washington, MS.
FOR RESPONDENT:
Janice K. Redfern, Senior Litigation Counsel; William C. Minick, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of these motions for a stay of removal, leave to proceed in forma pauperis, and appointment of counsel, it is hereby ORDERED that the motions for IFP status and appointment of counsel are GRANTED and the motion for a stay of removal is DENIED.
Petitioner Jonathan Jose Logan Ledesma, a native and citizen of the Philippines, is currently seeking review of a May 1, 2020 decision of an Immigration Judge ("IJ") concurring with an asylum officer's negative reasonable fear determination. In re Jonathan Jose Logan Ledesma, No. A 201 495 870 . Before us are only Ledesma's motions requesting that he be granted a stay of removal and IFP status, and appointed counsel to assist in his appeal. Thus, we do not decide whether the IJ in fact erred in concurring with the asylum officer's negative reasonable fear determination.
Ledesma entered the United States in 1995 on a visa and overstayed. In 2016, he was convicted of interstate travel in aid of racketeering under 18 U.S.C. § 1952(a)(3) in connection with a methamphetamine distribution scheme, which the immigration laws define as an "aggravated felony." See 8 U.S.C. § 1101(a)(43)(B) (); see also Deptula v. Att'y Gen. of U.S., 642 F. App'x 184, 185, 188 (3d Cir. 2016) (). Three years after that conviction, the Department of Homeland Security ("DHS") placed Ledesma into expedited removal proceedings.
Section 1228 permits the DHS to remove aliens, like Ledesma, convicted of committing aggravated felonies through an expedited process. See 8 U.S.C. § 1228. While § 1228(a) supplies "the general procedures for removing criminal non-citizens," § 1228(b) "applies specifically to the removal of criminal non-citizens who are not permanent residents."2 Zuniga v. Barr, 946 F.3d 464, 468 n.6 (9th Cir. 2019); see also Umude-Louis v. Holder, 368 F. App'x 544, 546 (5th Cir. 2010).As a non-resident convicted of an aggravated felony, Ledesma was therefore subject to the removal procedures supplied by § 1228(b). See 8 U.S.C. § 1228(b)(1), (2).
In August 2019, DHS entered a final administrative removal order against Ledesma. Because he was ordered removed under § 1228(b), he was ineligible for asylum. See 8 U.S.C. § 1228(b)(5). Ledesma was, however, permitted to seek withholding of removal and protection under the Convention Against Torture. See Zuniga, 946 F.3d at 467; see also Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013). While not set forth in § 1228(b), agency regulations promulgated under that statute required that once Ledesma requested these forms of relief, he be granted a reasonable fear interview before an asylum officer. See 8 C.F.R. § 1208.31(a), (b); see also 8 C.F.R. § 1238.1(f)(3) (); G.S. v. Holder, 373 F. App'x836, 839-40 (10th Cir. 2010) (describing this process); Umude-Louis, 368 F. App'x at 546-47 (same).3
It is undisputed that Ledesma had a right to counsel during that reasonable fear interview. See 8 C.F.R. 1208.31(c). Nevertheless, Ledesma attended the interview without counsel and turned down the asylum officer's offer to adjourn the interview until a later date. At the conclusion of the interview, the officer determined that, although Ledesma was credible, he did not have a reasonable fear of persecution or torture were he to be removed to the Philippines.
Ledesma thereafter sought review of that decision before an IJ pursuant to 8 C.F.R. § 1208.31(g). As before, Ledesma attended the proceeding without counsel. This time, however, Ledesma requested that the hearing be adjourned so that he could retain an attorney. The IJ denied that request, explaining that Ledesma "ha[d] a right to consult with an attorney, [but] not a right to be represented" in the hearing itself. Certified Admin. Record ("CAR") at 9. The IJthen proceeded with the review and concurred with the asylum officer's negative reasonable fear determination. Because of the unique procedures applicable in expedited removal proceedings under § 1228(b), Ledesma was not permitted to appeal that decision to the Board of Immigration Appeals. See 8 C.F.R. § 1208.31(g)(1) ().
To start, Ledesma requests both IFP status and that counsel be appointed to assist with his appeal. These motions present similar issues and so can be resolved in tandem.
We may waive filing fees for litigants who are unable to pay so long as their petitions for relief are not frivolous. See 28 U.S.C. § 1915(a); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (). Likewise, we may appoint an attorney for "any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). Whendeciding whether to assign counsel to an indigent civil litigant under § 1915, we ask "first whether the claimant has met 'a threshold showing of some likelihood of merit.'" Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989)); see also Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986) (). Once this threshold requirement has been satisfied, "we consider secondary factors such as the factual and legal complexity of the case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the particular case appointment of counsel would more probably lead to a just resolution of the dispute." Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001); see also Hodge, 802 F.2d at 61-62.
Ledesma's motions meet all these requirements. To start, Ledesma is financially indigent and therefore eligible for IFP status and appointment of counsel. He is presently detained and reports that he has no income or financial assets. See IFP Mot. Aff. at 2-6. As for the merits of Ledesma's petition, we agree that he has demonstrated "some likelihood of merit" and that the issues presented are sufficiently complex to warrant granting these two motions.
Ledesma's case raises the question of whether aliens have a right to be represented by counsel, at no expense to the government, in reasonable fear review hearings before an IJ that occur as part of an expedited removal process under § 1228(b). The government's argument that no such right exists is premised on 8 C.F.R. § 1208.31, the regulation governing such proceedings. See Zuniga, 946 F.3d at 468. As the government points out, that regulation expressly states that an alien has a right to counsel during the initial reasonable fear interview with an asylum officer, but is silent as to whether the same right attaches to a subsequent review of that asylum officer's conclusion by an IJ. Compare 8 C.F.R. § 1208.31(c), with id. § 1208.31(g). The government concludes that this silence indicates that there is no right to counsel at the review hearing. See Gov't Opp'n at 3; see also Bonilla v. Sessions, 891 F.3d 87, 92 (3d Cir. 2018) ().
While our Court has never considered this question, the Ninth Circuit rejected the government's position in Zuniga, 946 F.3d at 468-70. There, the Ninth Circuit rested its analysis on the language of 8 U.S.C. § 1228(b)(4)(B), which statesthat an 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." As the Ninth Circuit explained, "[n]othing in the language of § 1228 indicates that the right to counsel is conditional or limited only to certain types of proceedings initiated...
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