Zuniga v. Barr, No. 16-72982 (9th Cir. 2019)
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The Ninth Circuit filed an amended order granting a petition for review of the IJ's decision affirming an asylum officer's negative reasonable fear determination in expedited removal proceedings.
The panel held that non-citizens subject to expedited removal under 8 U.S.C. 1228 have a statutory right to counsel in reasonable fear proceedings before an immigration judge. In this case, the panel held that petitioner had a statutory right to counsel, the colloquy at the beginning of the hearing before the IJ was inadequate to waive that right, and no showing of prejudice is required. Therefore, the panel held that the IJ violated petitioner's right to counsel in his reasonable fear review proceeding by failing to obtain a valid waiver, and petitioner was entitled to a new hearing before an IJ in which his right to counsel is honored. Accordingly, the panel reversed for further proceedings.
Court Description: Immigration. The panel filed an amended opinion granting Baldemar Zuniga’s petition for review of an immigration judge’s decision affirming an asylum officer’s negative reasonable fear determination in expedited removal proceedings, and remanded, holding that non-citizens subject to expedited removal under 8 U.S.C. § 1228 have a statutory right to counsel in reasonable fear proceedings before an immigration judge, and that the immigration judge deprived Zuniga of his right to counsel by failing to obtain a knowing and voluntary waiver of that right. The panel rejected the government’s argument that there is no statutory right to counsel in reasonable fear proceedings. The panel explained that expedited removal proceedings for non-citizens convicted of committing aggravated felonies are currently codified at 8 U.S.C. § 1228(b), and that reasonable fear proceedings are in turn a part of those expedited removal proceedings. The panel noted that although the legal provisions requiring the government to conduct reasonable fear proceedings as part of expedited removal proceedings are set forth in regulations, rather than § 1228 itself, those regulations were promulgated pursuant to the Attorney General’s authority under § 1228. The panel further concluded that the statute clearly contemplates a right to counsel in expedited removal proceedings initiated under § 1228, including reasonable fear review proceedings, where § 1228(b)(4)(B) explicitly ZUNIGA V. BARR 3 provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel, and nothing in the language of § 1228 indicates that the right to counsel is conditional or limited only to certain types of proceedings initiated under that statute, expedited or otherwise. The panel explained that subsections of § 1228 reinforce that right by requiring that proceedings for the removal of criminal non-citizens be conducted in conformity with § 1229a, which in turn provides a statutory right to counsel in ordinary removal proceedings, and by requiring the government to take reasonable efforts not to impair an individual’s access and right to counsel in considering whether to detain non-citizens. The panel also observed that the broader legislative context outside of the specific provisions dealing with expedited removal proceedings for criminal non-citizens supports the conclusion that there is a right to counsel in reasonable fear proceedings. The panel noted that its conclusion was not undermined by the fact that § 1228 was enacted before the reasonable fear regulations were promulgated, because when § 1228 was enacted, the United States was already a signatory to the Convention Against Torture, and one must presume that Congress intended for the expedited removal procedures prescribed in § 1228(b) to conform to the Convention’s requirements. The panel further noted that Congress confirmed that intention shortly thereafter by commanding the appropriate agencies to prescribe regulations to implement the obligations of the United States under the Convention, which the Immigration and Naturalization Service did when it promulgated regulations making clear that reasonable fear proceedings for aggravated felons would be part of expedited removal proceedings governed by § 1228(b). 4 ZUNIGA V. BARR The panel also noted that its holding was not inconsistent with Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007), because Morales-Izquierdo concerned the other category of non-citizens to whom the reasonable fear regulations apply, non-citizens subject to the reinstatement of a previous removal order, and held only that non-citizens have no statutory right to counsel at the initial stage of reinstatement proceedings, but did not address whether a statutory right to counsel attached during the subsequent reasonable fear review before an IJ. The panel declined to give deference to a 1999 Executive Office of Immigration Review memorandum interpreting regulations at 8 C.F.R. § 208.31 as giving IJs discretion to decide whether a non-citizen may be represented by counsel. The panel noted that the government was correct that the regulations specify only that non-citizens may be represented by counsel in the initial reasonable fear interview before an asylum officer, and that they are silent as to representation by counsel in the review hearing before the IJ. However, the panel concluded that EOIR’s interpretation conflicted with the plain text of § 1228. The panel held that the IJ violated Zuniga’s Fifth Amendment right to due process by failing to obtain a knowing and voluntary waiver of his right to counsel, and that Zuniga did not need to show prejudice where he was denied his statutory right. The panel therefore remanded for a new hearing in which Zuniga’s right to counsel is honored. ZUNIGA V. BARR 5
This opinion or order relates to an opinion or order originally issued on August 20, 2019.
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