Tuesday, September 18, 2012

Ninth Circuit Finds that IJ Violated Right to Counsel of Asylum Applicant

The U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Collins (sitting by designation) joined by Judges Clifton and Murguia, today found in Montes-Lopez v. Holder that a noncitizen's right to counsel had been violated:

"Petitioner Mario Montes-Lopez, a native and citizen of El Salvador, petitions for review of an order of removal. Petitioner’s attorney failed to appear at a scheduled merits hearing before an Immigration Judge (“IJ”) because his license to practice law had been temporarily suspended. The Immigration Judge found that Petitioner may have learned of his attorney’s suspension as much as eleven days before the hearing, and concluded that Petitioner was not diligent in bringing his attorney’s suspension to the attention of the court. He denied Petitioner’s motion to continue, proceeded with the hearing with Petitioner unrepresented by counsel, and denied Petitioner’s application for asylum. We conclude that the Petitioner’s right to be represented in the proceedings by retained counsel, established under 8 U.S.C. § 1362 and related regulations, was violated. We also conclude that a petitioner so denied his right to counsel in an immigration proceeding is not required to demonstrate actual prejudice in order to obtain relief. We therefore grant the petition and remand for further proceedings."

Proceedings to remove noncitizens from the United States are classified as “civil” rather than “criminal.” Consequently, unlike a criminal defendant, a noncitizen in removal proceedings is not guaranteed legal representation.   Recognizing the importance of counsel to noncitizens in removal proceedings, Congress created a qualified statutory right to counsel – which it characterizes as a “privilege” -- for removal proceedings, with a noncitizen allowed to secure representation by counsel “at no expense to the Government.” This as a practical matter means that a noncitizen can secure paid or pro bono representation but is not guaranteed an attorney by the government in a removal proceeding. Because of the obvious importance of the right to counsel to a noncitizen’s chance of prevailing in removal proceedings -- as well as teh high stakes of deporting a person from teh United States, regulations require immigration judges to advise the respondent in removal proceedings of the right to representation and “require the respondent to state then and there whether he or she desires representation.”

The courts have interpreted the statutory mandate as not requiring the government to provide counsel to noncitizens in removal proceedings. While the government is not required to provide counsel to noncitizens in removal proceedings, the U.S. government at various times as in Montes-Lopez v. Holder has been found by courts of effectively denying the qualified “privilege” of counsel of noncitizens through various practices.



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