Gomez-Velazco v. Sessions, No. 14-71747 (9th Cir. 2018)
Annotate this CaseThere is no reason to conclusively presume prejudice when an individual was denied the right to counsel during his initial interaction with DHS officers, provided the individual was able to consult with counsel before the removal order is executed. The Ninth Circuit denied petitions for review of DHS's final administrative order of removal under 8 U.S.C. 1228(b). Assuming that a due process violation occurred when petitioner did not have counsel present at the outset of the removal process, the panel held that petitioner must show that he was prejudiced by the violation. In this case, petitioner failed to show that denial of the right to counsel during his initial interaction with DHS officers prejudiced him. In this case, petitioner has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he could not contend that his un-counseled admissions cost him the chance to raise plausible grounds for contesting removal. Nor could he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal.
Court Description: Immigration. The panel denied Eladio Gomez-Velazco’s petitions for review from the Department of Homeland Security’s final administrative order of removal under 8 U.S.C. § 1228(b), concluding that Gomez-Velazco’s due process claim, based on his contention that he was denied the right to counsel, failed because he made no showing of prejudice. Gomez-Velazco argued that DHS officers violated his right to counsel by pressuring him to concede removability without advice of counsel in his proceedings under 8 U.S.C. § 1228(b), a form of summary removal proceedings in which he did not have a hearing before an immigration judge. The panel concluded that it had jurisdiction to review Gomez- Velazco’s constitutional claim and assumed, without deciding, that the officers’ conduct violated his right to counsel. The panel held that Gomez-Velazco was required to show prejudice in order to prevail on his claim, rejecting his contention that, in the context of a due process violation based on the denial of the right to counsel, prejudice should be conclusively presumed and automatic reversal should follow. The panel concluded that, at least in cases like that of Gomez-Velazco, where an individual is in administrative removal proceedings under 8 U.S.C. § 1228(b), does not waive the 14-day waiting period for judicial review, and is GOMEZ-VELAZCO V. SESSIONS 3 allowed to consult with counsel before the removal order is executed, a showing of prejudice is required. The panel further concluded that Gomez-Velazco failed to establish prejudice. Dissenting, Chief District Judge Navarro wrote that she would grant the petition for review and vacate the final administrative order of removal. Judge Navarro would first make the distinct finding that Gomez-Velazco’s right to counsel was violated, and would hold that no prejudice is required to vacate the order, and that even if prejudice were required, Gomez-Velazco demonstrated sufficient prejudice.
The court issued a subsequent related opinion or order on May 31, 2018.
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