Montes-Lopez v. Gonzales
| Decision Date | 17 May 2007 |
| Docket Number | No. 05-76297.,05-76297. |
| Citation | 486 F.3d 1163 |
| Parties | Mario MONTES-LOPEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert B. Jobe and Aruna Sury, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.
Peter D. Keisler, Mark C. Walters, and Jennifer L. Lightbody, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A95-487-944.
Before ALFRED T. GOODWIN, SIDNEY R. THOMAS, and CARLOS T. BEA, Circuit Judges.
In this appeal we consider whether the Board of Immigration Appeals ("BIA") erred by failing to address petitioner's claim that he was denied his right to counsel at proceedings before the immigration judge ("IJ"). We conclude that the BIA so erred and remand for consideration of petitioner's claim.
Mario Montes-Lopez, also known as Mario Morales-Abrego, is a native and citizen of El Salvador who entered the United States without inspection in 2002. When he crossed the border, he was seventeen years old. Soon after Montes-Lopez entered the United States, the Department of Homeland Security instituted removal proceedings against Montes-Lopez. He conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").
Between December 10, 2002, Montes-Lopez's first immigration hearing at which he appeared pro se, and May 12, 2004, his merits hearing which was also held pro se, he experienced a series of difficulties in obtaining representation. His first attorney withdrew, stating that Montes-Lopez had decided to represent himself. He then retained the services of a pro bono attorney, to be later replaced by attorney Otto Peña who prepared his application for asylum, withholding of removal, and protection under CAT. Throughout this time, Montes-Lopez was granted continuances to afford him representation.
On May 12, 2004, Montes-Lopez appeared without Peña, but with a letter from Peña explaining that Peña was unable to appear because his license had been suspended until August 2004. The IJ proceeded to exhaustively interrogate Montes-Lopez on the precise time he received the letter and on when he last spoke with Peña, presumably to discern when Montes-Lopez discovered that Peña would be unable to represent him. Based on what the IJ thought to be inconsistent testimony, the IJ concluded that Montes-Lopez had lied regarding his communications with Peña and refused to grant him a continuance. The hearing proceeded pro se. As opposed to the lengthy questioning regarding Peña's letter, the IJ's colloquy on Montes-Lopez's basis for asylum, withholding, and CAT protection was relatively limited. The IJ denied the applications, noting that Montes-Lopez was an incredible witness who attempted to delay the proceedings.
On appeal to the BIA, Montes-Lopez asserted but one claim: that his statutory and constitutional right to counsel was violated. The BIA summarily affirmed the IJ's decision pursuant to 8 C.F.R. § 1003.1(e)(4), thereby failing to address Montes-Lopez's claim that his right to counsel was deprived. The BIA decision stated in full only that:
The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4).
We review de novo questions of law and claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the IJ's decision not to continue a hearing, Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir.2005). However, we are not permitted to decide a claim that the immigration court has not considered in the first instance. INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353,...
To continue reading
Request your trial
-
Henriquez-Rivas v. Holder
......INS, 225 F.3d 1084, 1092-93 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc). 5 In Hernandez-Montiel, we held that a particular social group "is one united by a voluntary ... See Ventura, 537 U.S. at 16; Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007). Only after it does, can we decide whether that construction is reasonable; never do we get to ......
-
Henriquez–Rivas v. Holder
......INS, 225 F.3d 1084, 1092–93 (9th Cir.2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005) (en banc). 5 In Hernandez–Montiel, we held that a particular social group “is one united by a voluntary ......
-
Perez v. Barr
......DHS later filed a Notification Pursuant to the Notice Criteria in the 957 F.3d 962 Franco-Gonzales Class Action 1 based on evidence of Perez’s mental health diagnoses. In March 2014, the IJ found that Perez was not competent to represent ...These claims raise questions of law that we address de novo. See Montes-Lopez v. Gonzales , 486 F.3d 1163, 1165 (9th Cir. 2007). A. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not ......
-
Coronado v. Holder
...“we are not permitted to decide a claim that the immigration court has not considered in the first instance.” Montes–Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007) (citing INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)); see also Barroso v. Gonzal......