Picca v. Mukasey

• Decision Date: 09 January 2008
• Docket Number: No. 07-0180-ag.,07-0180-ag.
• Citation: 512 F.3d 75
• Parties: Claudio Arturo PICCA, Also Known as Claudia Picca, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

512 F.3d 75

Claudio Arturo PICCA, Also Known as Claudia Picca, Petitioner, v. Michael B. MUKASEY, Attorney

General of the United States,¹ Respondent.

No. 07-0180-ag.

United States Court of Appeals, Second Circuit.

Submitted December 6, 2007.

Decided January 9, 2008.

H. Raymond Fasano, Madeo & Fasano, New York, NY, for Petitioner.

Margaret Kuehne Taylor, Attorney, Civil Division, Office of Immigration Litigation, U.S. Department of Justice (Peter D. Keisler, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, Civil Division, Office of Immigration Litigation, on the brief), Washington, D.C., for Respondent.

Before: STRAUB and HALL, Circuit Judges, and HAIGHT, District Judge.²

STRAUB, Circuit Judge.

Petitioner Claudio Arturo Picca seeks review of an order of the Board of Immigration Appeals ("BIA"), issued on December 19, 2006, dismissing his appeal from the August 30, 2006 decision of Immigration Judge ("IJ") Barbara A. Nelson ordering Picca removed to Italy and denying all relief. In re Claudio Arturo Picca, No. A30 513 652 (B.I.A. Dec. 19, 2006), aff'g No. A30 513 652 (Immig.Ct. Napanoch Aug. 30, 2006). In his petition, Picca argues that the agency failed to follow its own guidelines regarding the right to counsel in removal proceedings. We agree, and accordingly grant the petition for review, vacate the BIA's order, and remand the case to the BIA for further proceedings consistent with this opinion.

I. Background

Picca, a citizen of Italy, was admitted to the United States as a lawful permanent resident in September 1970, when he was nine years old. He lived in the United States without incident for thirty-five years, married a United States citizen, and now has three children, all of whom are United States citizens. In September 2005, Picca was convicted in New York state court of one count of attempted sale of a controlled substance in the third degree (namely, heroin), and sentenced to an indeterminate term of incarceration of between three and six years.

Four months later, on January 17, 2006, the Department of Homeland Security served Picca with a "Notice to Appear," charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which renders deportable any alien convicted of an aggravated felony, and 8 U.S.C. § 1227(a)(2)(B)(i), which renders deportable any alien who is convicted of a crime "relating to a controlled substance" other than a single offense involving possession of small quantities of marijuana. The Notice to Appear included a paragraph with the heading "Representation" that stated:

If you so choose, you may be represented in this proceeding, at no expense to the Government, by an attorney or other individual authorized and qualified to represent persons before the Executive Office for Immigration Review, pursuant to 8 CFR 3.16. Unless you so request, no hearing will be scheduled earlier than ten days from the date of this notice to allow you sufficient time to secure counsel. A list of qualified attorneys and organizations who may be available to represent you at no cost will be provided with this Notice.

The "Certificate of Service" in the administrative record indicates that the Notice to Appear was served "by regular mail," and that there was attached "a list of organizations and attorneys which provide free legal services," although no such list appears in the administrative record.

When Picca first appeared before an IJ, on March 24, 2006, he appeared pro se, via teleconference from the detention facility where he was serving his prison sentence. (All of his subsequent appearances were also via teleconference from the detention facility.) After the IJ told him that he had "the right to be represented by a lawyer," Picca said that he was "in the process of getting one," and the IJ then adjourned the proceeding. Picca appeared before an IJ a second time on May 5, 2006, this time represented by an attorney. Picca conceded removability based on his drug conviction, but he said that he intended to seek withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) and relief under the Convention Against Torture. In order to give Picca's attorney an opportunity to submit an application for relief, the IJ again adjourned the proceeding.

At his next appearance, on June 2, 2006, Picca's attorney was initially unavailable, and when he finally joined the teleconference, he asked for an additional continuance to give him time to speak with Picca's uncle prior to submitting Picca's application for relief. The IJ granted the adjournment. On July 28, 2006, Picca appeared before an IJ for the fourth time. Picca's counsel, however, immediately informed the IJ that he was withdrawing from his representation of Picca. The IJ then granted one "last" continuance in order for Picca to "get another lawyer."

Picca appeared before an IJ for a final time on August 30, 2006. In advance of the hearing, Picca's wife submitted a letter, dated July 23, 2006, stating that their family did "not have the funds to keep paying the large sums of money that is needed for each hearing." When the hearing began, the IJ, without stating whether she had reviewed the letter, asked Picca whether he had an attorney. Picca replied: "[T]he last time I was he[re], he dropped off the case." The IJ then proceeded to hold the hearing, found Picca ineligible for any relief, and entered an order of removal.

Picca appealed this decision to the BIA on the ground that he was denied due process because he was not represented by counsel. The BIA dismissed the appeal, reasoning that Picca "was given numerous opportunities to obtain counsel" and that even if his due process rights were violated, "he [ ] failed to show the requisite prejudice because he has not demonstrated any eligibility for relief from removal."

II. Discussion

Because Picca challenges the BIA's application of law to fact—namely, whether his due process right to counsel was violated during his proceedings before the IJ — our review is de novo. Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007); Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

We have noted on numerous occasions that because "immigration cases are civil, not criminal, proceedings[,] . . . [a]n asylum applicant . . . enjoys no specific right to counsel, but only a general right to due process of law under the Fifth Amendment of the Constitution." Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d Cir.2005); see also Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 241 (2d Cir.1992). "Nonetheless, the Due Process clause and the Immigration and Nationality Act afford[] an alien the right to counsel of his own choice at his own expense." Montilla v. INS, 926 F.2d 162, 166 (2d Cir.1991); see also Hidalgo-Disla v. INS, 52 F.3d 444, 447 (2d Cir.1995); 8 U.S.C. § 1362.

The government has adopted various regulations in order to give procedural safeguard to this right to counsel. See 8 U.S.C. § 1229a(b)(4)(A) (directing the Attorney General to adopt regulations ensuring that "the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings"). Regulations in effect at the time of Picca's removal hearing required that the IJ, inter alia: (1) "[a]dvise the respondent of his or her right to representation, at no expense to the government"; (2) "[a]dvise the respondent of the availability of free legal services provided by organizations and attorneys . . . located in the district where the removal hearing is being held"; and (3) "ascertain that the respondent has received a list of such programs." 8 C.F.R. § 1240.10(a) (2003).

In Montilla v. INS, we held that the failure of the IJ to follow these established procedures can constitute "reversible error," without a showing of prejudice, because, among other reasons, the right to counsel concerns "fundamental notions of fair play underlying the concept of due process," and "remand[ing] for agency compliance with its own rules would actively encourage such compliance." Montilla, 926 F.2d at 167, 169; see also Waldron v. INS, 17 F.3d 511, 517 (2d Cir.1994) ("[Montilla's no prejudice rule] addresses itself to the INS's failure to adhere to its own regulations concerning an alien's right to counsel, which, as even the INS recognizes, is a fundamental right derived from the Sixth Amendment right to counsel in criminal cases and the Fifth Amendment right to due process in civil cases, and enshrined in section 292 of the Act, 8 U.S.C. § 1362." (internal quotation marks...