Unpublished Disposition, 923 F.2d 861 (9th Cir. 1991)

Memorandum^** 

Carlos Cubillo-Herrera ("Cubillo") appeals the affirmance by the Board of Immigration Appeals of an Immigration Judge's denial of asylum. According to Cubillo, his right to counsel was denied because the Immigration Judge failed to adequately inform him of the existence of free legal services and because the judge failed, when the hearing resumed after a continuance, to ask him if he desired counsel.

We review the Board's decision for abuse of discretion. Castro-O'Ryan v. I.N.S., 847 F.2d 1307, 1312 (9th Cir. 1988). In order to show that he was denied the right to counsel, Cubillo must show that his waiver was not knowing, intelligent and voluntary. Ramirez v. I.N.S., 550 F.2d 560, 565 (9th Cir. 1977). The Board correctly concluded that Cubillo had been adequately informed of his rights.

The Order to Show Cause, the letter notifying Cubillo when to appear for his hearing, and the letter notifying him when the hearing would be resumed after the continuance all informed Cubillo of his right to have counsel. At the original hearing, the Immigration Judge told Cubillo that he had the right to counsel and asked him whether he wished a continuance to obtain one. Cubillo clearly waived his right to an attorney. At no time did Cubillo give any indication that he no longer wished to waive counsel. The immigration judge's failure, when the hearing resumed after the continuance, to confirm that Cubillo had not changed his mind is not a violation of 8 C.F.R. Sec. 242.16.

The judge confirmed that Cubillo had seen the list of free legal services. There is no need for the judge to specifically tell the alien of the existence of legal services when it is clear that the alien is already aware of them. See Ramirez-Durazo v. I.N.S., 794 F.2d 491, 499 (9th Cir. 1986) (Immigration Judge had no reason to advise petitioners of their right to counsel when they appeared at the hearing with an accredited representative).

AFFIRMED.