Mendoza-Garcia v. Barr, 031319 FED6, 18-3513

Docket Nº:18-3513
Opinion Judge:JANE B. STRANCH, CIRCUIT JUDGE.
Party Name:Rogelio Mendoza-Garcia, Petitioner, v. William P. Barr, Attorney General, Respondent.
Attorney:Elizabeth M. Knowles, UNIVERSITY OF AKRON SCHOOL OF LAW, Akron, Ohio, for Petitioner. Kevin J. Conway, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Judge Panel:Before: KEITH, STRANCH, and DONALD, Circuit Judges.
Case Date:March 13, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Rogelio Mendoza-Garcia, Petitioner,

v.

William P. Barr, Attorney General, Respondent.

No. 18-3513

United States Court of Appeals, Sixth Circuit

March 13, 2019

On Petition for Review from the Board of Immigration Appeals; No. A 090 695 509.

ON BRIEF:

Elizabeth M. Knowles, UNIVERSITY OF AKRON SCHOOL OF LAW, Akron, Ohio, for Petitioner.

Kevin J. Conway, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: KEITH, STRANCH, and DONALD, Circuit Judges.

OPINION

JANE B. STRANCH, CIRCUIT JUDGE.

Approximately six weeks before Rogelio Mendoza-Garcia's final removal hearing, his attorney warned him that he needed to comply with the terms of their retainer agreement-that is, to pay the attorney. Mendoza-Garcia did not pay and, one week before the hearing, his attorney filed a motion to withdraw. The immigration judge (IJ) granted the motion the day of the hearing. When Mendoza-Garcia requested a continuance to find a new attorney, the IJ denied the request, explaining that he would assist in developing the record. Mendoza-Garcia argues that the IJ violated his constitutional rights by denying the continuance and by failing to fully develop the record. The Board of Immigration Appeals disagreed and, for the reasons explained below, we DENY the petition for review.

I. BACKGROUND

Mendoza-Garcia came to the United States from Guatemala in 2004, when he was 16 years old. He was placed in removal proceedings approximately six years later, in March 2011. He appeared pro se at an initial scheduling hearing the next month and was granted a six-month continuance to find an attorney. With the help of retained counsel, he applied for asylum and withholding of removal within that six-month window. In the application, he stated that he was afraid to return to Guatemala because, years before, his hometown had been torn apart by violence after a mayoral election won through fraud.

The case then languished for reasons that are not clear from the record. More than six years later, in September 2017, Mendoza-Garcia attended another scheduling hearing, and his merits hearing was scheduled for November. On November 6, one week before that hearing took place, his attorney submitted a motion to withdraw. The attorney stated that he told Mendoza-Garcia on September 25, 2017-the day of the scheduling hearing-about an outstanding obligation related to their 2011 representation agreement. Mendoza-Garcia informed the attorney on November 3 that he was "unable to comply."

The motion had not been decided when Mendoza-Garcia and counsel attended the merits hearing in November. The IJ asked if Mendoza-Garcia objected to his attorney's withdrawal; he responded that he "did have some financial issues" and "request[ed] a little bit more of time." The IJ informed him that financial difficulty was not a "valid reason" to grant a continuance and asked again if Mendoza-Garcia objected. Mendoza-Garcia asked the IJ, "if he doesn't want to continue with my case, he's going to leave me by myself?" The IJ said yes, explaining, "you'll represent yourself, and I would ask you questions to help you develop your testimony regarding why you fear going back to your country." When asked a third time if he objected to his attorney's withdrawal, Mendoza-Garcia said no. The IJ granted the motion to withdraw, and the attorney left.

The hearing proceeded, working through two interpreters-one translating from English to Spanish, and the second from Spanish to Aguacateco, the indigenous language that Mendoza-Garcia speaks best. Mendoza-Garcia explained to the IJ that he was afraid to return to Guatemala because "when [he] was little, there was some serious issue or problem in [his] village and a problem that took place with the local mayor." When asked if anyone harmed him, he responded, "I do not want to lie but, no, no, and that's why I decided to come over here." He also denied that he had been threatened but asked "to be able to give a little bit of further explanation." The IJ responded that Mendoza-Garcia would be allowed to "say whatever [he] want[ed] to say," and asked if there was a "person or group" he feared would harm him. Mendoza-Garcia responded, "I don't fear any person in particular or a group, per se," but explained, "they made us to get involved with a group to protect the village," even giving him a gun.

Later, the IJ asked if anyone would harm him if he returned to Guatemala. Mendoza-Garcia explained that, according to a new village law, anyone who did not collaborate with the new government at the time of the mayoral election had been "expelled from the village" and "wouldn't be allowed to live there anymore." His mother had confirmed to him that he had been expelled. The judge then asked if Mendoza-Garcia could live elsewhere in Guatemala. Mendoza-Garcia said he "just [didn't] want to go back to Guatemala," because he was "afraid something's going to happen to [him]," although he had "no idea what might happen."

After the IJ finished his questions, he summarized the voluntary departure process and asked if Mendoza-Garcia wished to apply. Before responding to the question, Mendoza-Garcia asked one more time if there was "a possibility for the Judge to give [him] more time to look for a lawyer." The IJ refused, and Mendoza-Garcia turned down voluntary departure. The Government attorney then cross-examined Mendoza-Garcia, questioning him about family members who still lived in his village and how long he had remained there after the contested election. When the cross-examination was complete, the IJ announced his decision that Mendoza-Garcia was not eligible for immigration relief.

Mendoza-Garcia appealed to the Board of Immigration Appeals (BIA or the Board), first pro se and then through pro bono counsel. As relevant here, he argued that (1) he had not been given a reasonable opportunity to obtain counsel and had not waived his right to counsel, and (2) the IJ failed to adequately develop the record. The BIA denied the appeal, reasoning that (1) the denial of a continuance was within the IJ's discretion because Mendoza-Garcia had six weeks' notice of counsel's intended withdrawal, and (2) in light of Mendoza-Garcia's admission that he was never harmed or threatened and his inability to identify specific harm he feared upon return, any error was not prejudicial. Mendoza-Garcia petitions for review.

II. ANALYSIS

A. Constitutional and Regulatory Background

Noncitizens in removal proceedings have long been protected by the Fifth Amendment's guarantee of due process of law. See Yamataya v. Fisher, 189 U.S. 86, 101 (1903) (holding that a noncitizen may not "be taken into custody and deported without giving him all opportunity to be heard" because "[n]o such arbitrary power can exist where the principles involved in due process of law are recognized"). Removal "visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness." Bridges v. Wixon, 326 U.S. 135, 154 (1945). But we have also been clear for decades that the Sixth Amendment right to appointed counsel in criminal proceedings does not apply to civil removal proceedings. See Mustata v. U.S. Dep't of Justice, 179 F.3d 1017, 1022 n.6 (6th Cir. 1999); see also Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). Procedural challenges to removal proceedings-including counsel-related challenges-are therefore evaluated under the due process "fundamental fairness" framework. See, e.g., Denko, 351 F.3d at 723-24.

We have addressed the scope of the right to counsel under the Fifth Amendment in immigration proceedings many times. We stated decades ago that "[w]here an unrepresented indigent alien would require counsel to present his position adequately to an immigration judge, he must be provided with a lawyer at the Government's expense. Otherwise, 'fundamental fairness' would be violated." Aguilera-Enriquez v. INS, 516 F.2d 565, 568 n.3 (6th Cir. 1975). More recently, on the basis that there is no "right to government-provided counsel in civil litigation," we stated that "[t]he Fifth Amendment simply does not guarantee the right to counsel or, it follows, the right to effective counsel in removal proceedings." Al-Saka v. Sessions, 904 F.3d 427, 434 (6th Cir. 2018). It is arguable that the statements from each case fall within the arena of dicta. See id. at 435 (White, J., concurring) (deeming the opinion's discussion of constitutional requirements "unnecessary"). Even so, this line of cases makes clear that we have consistently endorsed the Supreme Court's requirement that removal proceedings "meet the essential standards of fairness." Bridges, 326 U.S. at 154. And we have defined those standards to include, at a minimum, the due process rights of a noncitizen "to make his case before the immigration authorities"-and, if he wishes, to "hire counsel" to do so. Al-Saka, 904 F.3d at 434. Thus, a noncitizen in removal proceedings has a due process right to be represented by retained counsel.

Due process requirements also adhere in cases involving pro se petitioners. As several other circuits have recognized, it is the IJ's duty to fully develop the record. Because aliens appearing pro se often lack the legal knowledge to navigate their way successfully through the morass of immigration law, and because their failure to do so successfully might result in their expulsion from this country, it is critical that the IJ scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.

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