Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

No. 89-70540.

United States Court of Appeals, Ninth Circuit.

Before HUG and POOLE, Circuit Judges, and ATKINS,^*  District Judge.

MEMORANDUM^** 

Jose Ramon Perez-Romero ("petitioner"), a native and citizen of Nicaragua, petitions for review of an order of the Board of Immigration Appeals ("Board") affirming an immigration judge's denial of his requests for asylum and withholding of deportation. Petitioner contends, inter alia, that his statutory and constitutional rights to counsel of choice were denied by his not being given reasonable time to obtain legal representation. Because we agree that petitioner was not afforded reasonable time, we grant the petition for review, reverse the order of the Board of Immigration Appeals that he be deported, and remand the case for new proceedings with the assistance of counsel.¹ 

Petitioner entered the United States illegally through Arizona on December 8, 1988. Although he arrived together with his sister and her two children, he was transferred to an Immigration and Naturalization Services ("INS") detention facility in Miami while they remained in Arizona, where they were later released and found eligible for asylum. Before leaving Arizona, petitioner was served with an Order to Show Cause ("OSC"), which contains notice of his right to obtain counsel; petitioner also was provided with a list of individuals and organizations in Arizona who might provide legal representation.

Once in Miami, petitioner appeared without counsel at a series of preliminary appearances before an immigration judge--on the 27th and 30th of December 1988, and on the 4th and 6th of January, 1989. On December 27, the immigration judge informed petitioner that he could hire an attorney at his own expense, obtain counsel at no cost, or represent himself. After petitioner indicated his wish to obtain free legal counsel, the immigration judge adjourned the hearing until December 30, 1988, whereupon petitioner again appeared without counsel, explaining that the attorneys on a list provided by the immigration judge were not accepting his calls. The immigration judge adjourned the hearing until the following Wednesday, January 4, 1989. Petitioner again appeared without counsel and explained that although he had no attorney, he had an attorney's business card. The immigration judge agreed to give him two additional days to find counsel. On Friday, January 6, 1989, petitioner appeared without counsel once again, explaining that a woman, presumably an attorney, had promised to meet with him that afternoon. The immigration judge agreed to give petitioner one final extension--until the following Monday, June 9, 1989. On that day, petitioner appeared unrepresented for the fifth time in thirteen days. When asked where his attorney was, petitioner told the immigration judge that "I could not communicate with him, but the Attorney, I will have to go on ... for myself." The immigration judge proceeded with the deportation hearing, finding petitioner deportable as charged and giving him four days, until Friday, January 13, 1991, to submit his asylum application.

Although the immigration judge set the asylum hearing for March 1, 1989, for some unknown reason the hearing took place on February 22. Representing himself at the asylum hearing, petitioner testified as to his educational and work history in Nicaragua. He also testified that his father, a member of Somoza's National Guard, had been killed by Sandinistas in 1978; that in 1987 he began to avoid military service, for which he had registered in 1985; that as a result of his noncompliance with his service orders, he was arrested and imprisoned in January 1988; and that after being recaptured following two escapes, in October 1988 he escaped for a third time and fled with his sister and her children to the United States. After hearing this testimony but before ruling, the immigration judge asked petitioner about his sister's deportability. Petitioner answered that he was unaware of his sister's status, but that she had retained counsel who "might be able to help me." The court responded as follows: "Well, he's not here and you don't have a lawyer here. I gave you one, two, three, four opportunities to find a lawyer and then I proceeded. The following is a decision." The judge then orally reviewed petitioner's testimony and denied his applications.

Petitioner appealed through counsel to the Board of Immigration Appeals,¹  challenging both the immigration judge's denial of his applications and the adequacy of the opportunity he was afforded to obtain representation. On June 23, 1989, the Board denied petitioner's challenges, concluding that the Nicaraguan government's interest in petitioner was limited to his refusal to serve in the military. The Board also rejected petitioner's right-to-counsel claim, noting the four continuances and concluding that, in any event, petitioner's case had not been prejudiced by any such violation. The present petition for review followed.² 

An alien facing a deportation hearing has both statutory and constitutional rights to be represented, at his own expense, by counsel of his choice. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990). Federal statute grants aliens the "privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in [deportation] proceedings, as he shall choose." 8 U.S.C. § 1362 (West 1970 & Supp.1991); see Castro-O'Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) (stating that the " [t]he legislative history of [section 1362] confirms that Congress wanted to confirm a right ") (emphasis in original). The fifth amendment's due process clause guarantees an alien the right to a "full and fair" hearing, Colindres-Aguilar v. INS, 819 F.2d 259, 260-61 n. 1 (9th Cir. 1987); this right to a full and fair hearing guarantees an alien "a reasonable time to locate counsel ... and permit counsel to prepare for the hearing." Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985).

Petitioner argues that the immigration judge denied his rights to counsel by failing to allow reasonable time to obtain counsel and by not inquiring at the February 22 hearing whether he had waived his right to counsel, and, if not, whether there was sufficient cause to grant more time to obtain counsel. The INS contends that the four continuances provided by the immigration judge allowed petitioner sufficient opportunity to obtain counsel and that petitioner's attendance at the January 9 hearing without an attorney present constituted a waiver of the right to counsel. The INS further argues that any denial of petitioner's rights that may have occurred did not prejudice his application efforts. We review petitioner's constitutional claim de novo, Reyes-Palacios v. INS, 836 F.2d 1154, 1155 (9th Cir. 1988), and his statutory claim for abuse of discretion, Rios-Berrios, 776 F.2d at 862.

As noted, upon being taken into custody petitioner was transported from Arizona to South Florida, thousands of miles from his family; was in custody at all times; spoke only Spanish; was unfamiliar with this country and its legal procedures; and was forced to seek counsel by telephone during the Christmas-New Year's season. Thirteen days after his first appearance before the immigration judge in Miami, eight of which were working days, the ultimate hearing on the merits of petitioner's deportability occurred. Petitioner was then given four days to prepare his asylum application. Forty-three days after the ultimate deportability hearing, the merits of petitioner's asylum applications were considered. After the immigration judge orally denied petitioner's applications, petitioner told the immigration judge that his sister had retained a lawyer who might be able assist him. In light of these circumstances, we determine that petitioner was not given "a reasonable time to locate counsel and permit counsel to prepare for the [deportation] hearing," Rios-Berrios, 776 F.2d at 863, and therefore was denied due process.

We recognize that the decision whether to grant a continuance in a deportation setting rests within the sound discretion of the trial judge, id. at 862, and that petitioner did not request a continuance at the ultimate hearing on the merits of his deportability. "Experience tells us that in most situations we should defer to the trial judge's decision in granting or denying the continuance." Id. However, as we noted in Rios-Berrios, under some circumstances "the immigration judge, sua sponte if necessary, should ... continue [ ] the hearing so as to provide the petitioner a reasonable time to locate counsel." Id. at 863. This is so even where an immigration judge already has granted continuances.

The petitioner in Rios-Berrios was taken into custody, served with an OSC, and transported from California to Miami for deportation proceedings. At his initial appearance six days following his arrest, petitioner indicated a desire to retain counsel, was granted a three-day continuance and was warned that he would have to go forward with or without counsel. When petitioner appeared unrepresented three days later, the immigration judge continued the hearing again, until the following day. After petitioner again appeared without counsel, the immigration judge made no inquiry about the absence of counsel but instead commenced the proceedings and found petitioner deportable. Id. at 860-61. We determined that petitioner was denied his right to counsel:

The petitioner was in custody, spoke only Spanish, had limited education, was unfamiliar with this country and its legal procedures, and had been removed nearly 3,000 miles from his only friend in this country.... In the circumstances of this case, the immigration judge, sua sponte if necessary, should have continued the hearing so as to provide the petitioner a reasonable time to locate counsel, and permit counsel to prepare for the hearing.

Id. at 862-63.

We are mindful of the distinctions between Rios-Berrios and the present case: that whereas the immigration judge granted two continuances for a total of two working days in Rios-Berrios, the immigration judge below granted four continuances for a total of eight working days; and that while the alien in Rios-Berrios had only a 10th grade education, the present petitioner trained people to teach. Nevertheless, in light of all the circumstances, we are convinced that the time provided was unreasonable and therefore violated his due process right to counsel.³  Similarly, we find that the court's failure to continue the hearing to provide petitioner reasonable time to locate counsel was an abuse of discretion. Cf. Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986) (finding two continuances totalling four months sufficient); Rios-Berrios, 776 F.2d at 862 (finding two working days insufficient); Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir. 1985) (finding four years sufficient).

We have little difficulty rejecting the INS's arguments that petitioner waived his right to counsel. The INS first argues that petitioner's January 9th statement to the effect that he was unable to "communicate with counsel" and that he would "have to go on ... for myself" constituted a waiver. Our review of the record indicates that this statement was not a knowing and intelligent waiver of the right to counsel, see Ramirez v. INS, 550 F.2d 560, 565 (9th Cir. 1977), but rather a reflection of petitioner's understanding of the immigration judge's statement the previous Friday: " [T]his will be your last extension for an Attorney.... Now, if you don't come in with an Attorney Monday, we'll proceed with your hearing and you may speak for yourself." The INS also argues that, in light of this statement by the immigration judge, the petitioner's mere appearance without counsel at the January 9th hearing constituted a waiver. Were we to accept the logic of this argument, the only way petitioner could have avoided waiving his fundamental right to counsel of choice would have been not to have appeared at the hearing. Under these circumstances, we determine that petitioner did not knowingly and intelligently waive his right to counsel.⁴ 

We also determine that petitioner's case was prejudiced by the absence of counsel, as the assistance of counsel "could have materially affected the outcome of his case," Baires v. INS, 856 F.2d 89, 93 (9th Cir. 1988). "The importance of counsel, particularly in asylum cases where the law is complex and developing, can neither be overemphasized nor ignored." Reyes-Palacios, 836 F.2d at 1155. Indeed, petitioner's incomplete testimony before the immigration judge pales in comparison to the compelling counsel-assisted arguments petitioner makes before this court; at no time did either the immigration judge or INS counsel ask petitioner if any member of his family other than his father had been persecuted by the Sandinistas, whether any other member of his family had been arrested, whether petitioner had any involvement or association with the Contras, or whether he had ever been beaten by Sandinista officials.⁵  This prejudice was not cured by the subsequent assistance of counsel before the Board. See Rios-Berrios, 776 F.2d at 861.

In light of the foregoing, we determine that petitioner's statutory and constitutional rights to counsel of choice were violated. We therefore grant the petition for review, reverse the order of the Board of Immigration Appeals that he be deported, and remand the case for new proceedings with the assistance of counsel.