Orozco-Lopez v. Garland, No. 20-70127 (9th Cir. 2021)
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Addressing two petitions for review, the Ninth Circuit held that noncitizens at reasonable fear hearings before an immigration judge (IJ), including noncitizens whose removal orders have been reinstated, are statutorily entitled to counsel. The court noted that 8 U.S.C. 1362 provides that noncitizens shall have the privilege of being represented (at no expense to the government), by counsel of their choosing in "any removal proceedings" before an IJ and in any appeal proceedings before the Attorney General.
Absent exceptional circumstances, denying a continuance despite the noncitizen’s inability to retain counsel within 10 days (the mandatory time for an IJ review hearing under 8 C.F.R. 208.31(g)) is not a denial of this entitlement if the asylum officer notified the noncitizen of the negative fear determination and the noncitizen requested IJ review and informed the noncitizen of the opportunity to have counsel, such as by providing a list of legal service providers. The statutory entitlement to counsel does not mean that a noncitizen must have counsel before an IJ can proceed, but only that a noncitizen must at least be informed and have an opportunity to seek counsel within section 208.31(g)(1)’s constraints. A noncitizen may waive the right to counsel, but such waiver must be knowing and voluntary. The court rejected additional due process arguments concerning the noncitizen’s hearing difficulties and the IJ’s failure to call a witness by telephone.
Court Description: Immigration. Granting Walter Orozco-Lopez’s petition for review, and remanding, and denying Homero Gonzalez Martinez’s petition for review, of decisions of immigration judges affirming asylum officers’ reasonable fear determinations in reinstatement proceedings, the panel held that noncitizens at reasonable fear hearings before an immigration judge are statutorily entitled to counsel, but that this entitlement is cabined by 8 C.F.R. § 208.31(g)’s temporal limitations on IJ review hearings. The panel observed that in Zuniga v. Barr, 946 F.3d 464 (9th Cir. 2019) (per curiam), this court addressed the question of whether non-citizens subject to expedited removal under 8 U.S.C. § 1228 have a statutory right to counsel in reasonable fear proceedings before immigration ** James V. Selna, United States Senior District Judge for the Central District of California, sitting by designation. OROZCO-LOPEZ V. GARLAND 3 judges. In Zuniga, the court held that there is indeed such a right because § 1228 provides that non-citizens in such expedited removal proceedings have the right to counsel at no expense to the government, and reasonable fear proceedings are in turn part of those expedited removal proceedings. The panel wrote that here the question is whether there is a statutory right to counsel at a reasonable fear hearing before an IJ for non-citizens with reinstated removal orders. The government argued that because neither the statute regarding reinstatement orders, 8 U.S.C. § 1231(a)(5), nor the regulations governing reinstatement proceedings, 8 C.F.R. § 1241.8, explicitly provide a right to counsel, there is no such right. The panel wrote that this approach was not persuasive. The panel explained that in Zuniga, this court considered the broader legislative context—outside of the specific provisions dealing with expedited removal proceedings for criminal non-citizens—and concluded that there is a right to counsel in reasonable fear proceedings, in particular because 8 U.S.C. § 1362 provides that non- citizens shall have the privilege of being represented (at no expense to the Government), by counsel of their choosing, in any removal proceedings before an IJ and in any appeal proceedings before the Attorney General from any such removal proceedings. The panel wrote that the question thus becomes whether reasonable fear hearings before an IJ fall under the category of “any removal proceedings.” Considering the plain language of the statute, and in the absence of a textual basis for restricting the right to counsel under § 1362 to only those proceedings determining removability under 8 U.S.C. § 1229a, the panel concluded that “any removal proceedings” includes those concerning eligibility for relief from removal. Thus, the panel held that 4 OROZCO-LOPEZ V. GARLAND non-citizens whose removal orders have been reinstated are statutorily entitled to counsel under § 1362, at no expense to the government, at their reasonable fear hearings before an IJ. The panel next considered how this eligibility for counsel is cabined by 8 C.F.R. § 208.31(g)(1)’s requirement that, in the absence of exceptional circumstances, the reasonable fear review hearing “shall be conducted by the immigration judge within 10 days of the filing of the Notice of Referral to Immigration Judge with the immigration court.” The panel wrote that in the absence of exceptional circumstances, denying a continuance despite the non- citizen’s inability to retain counsel within ten days is not a denial of this entitlement where, at the time the asylum officer notified the non-citizen of the negative fear determination and the non-citizen requested IJ review, the asylum officer informed the non-citizen of the opportunity to have counsel, such as by providing the non-citizen with a list of legal service providers. The panel held that the statutory entitlement to counsel does not mean that a non- citizen must have counsel before an IJ can proceed, but only that a non-citizen must at least be informed of the entitlement to counsel and have an opportunity to seek counsel within § 208.31(g)(1)’s constraints. Applying these holdings to the petitions at hand, the panel determined that Orozco-Lopez’s statutory right to counsel was denied, but that Gonzalez’s was not. Noting that a non-citizen may waive the right to counsel, but such waiver must be knowing and voluntary, the panel wrote that the IJ at Orozco-Lopez’s hearing did not mention the possibility of legal representation, so Orozco-Lopez could not possibly have waived it. Relying on Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), the panel also wrote OROZCO-LOPEZ V. GARLAND 5 that Orozco-Lopez need not show prejudice. The panel concluded that in Gonzalez’s case, the IJ’s denial of his request for a continuance to find a lawyer did not amount to a denial of his statutory right to counsel, where the asylum officer gave Gonzalez a list of free legal service providers after he requested review by an IJ, and at the review hearing eight days later, Gonzalez had not retained counsel or suggested when, if ever, he might do so. The panel rejected Gonzalez’s additional due process arguments concerning his hearing difficulties at the IJ hearing, and the IJ’s failure to call a witness by telephone. The panel also held that substantial evidence supported the IJ’s decision to affirm the asylum officer’s negative reasonable fear determination as to Gonzalez’s torture claim. Concurring, Judge Callahan acknowledged Montes- Lopez’s holding that the denial of an alien’s statutory right to counsel is per se reversible error, but for the reasons stated in the dissent in Hernandez v. Holder, 545 F. App’x 710 (9th Cir. 2013), she believes that the case was wrongly decided, and should be revisited en banc.
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