FILED
NOT FOR PUBLICATION NOV 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDY FAUSTINO GOMEZ ) No. 09-73086
HERNANDEZ, )
) Agency No. A074-180-961
Petitioner, )
) MEMORANDUM*
v. )
)
ERIC H. HOLDER, Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 5, 2013**
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
Rudy Faustino Gomez Hernandez, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (BIA) denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
application for asylum,1 withholding of removal,2 and Convention Against Torture
relief.3 We grant the petition.
Gomez asserts that his right to due process under the Fifth Amendment to
the United States Constitution was violated because he was denied his statutory
right to representation by counsel. See 8 U.S.C. § 1362. We agree. That right is
of the utmost importance,4 but a mere two weeks before his scheduled asylum
hearing, the Immigration Judge (IJ) relieved his attorney and Gomez was sent
notice of that. He was also notified that he was required to appear and proceed on
the appointed date with or without counsel, and that no continuance would be
granted. He did appear without counsel, and with little further ado the hearing
proceeded. The IJ did not ask if he wished to waive counsel, and, of course, did
not receive a knowing and voluntary waiver. See Tawadrus v. Ashcroft, 364 F.3d
1099, 1103 (9th Cir. 2004). That was unsatisfactory. Gomez’s right to counsel
1
8 U.S.C. § 1158.
2
8 U.S.C. § 1231(b)(3).
3
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.
4
See Baltazar-Alcazar v. INS, 386 F.3d 940, 944–45 (9th Cir. 2004); Castro-
O’Ryan v. U.S. Dep’t of Immigration & Naturalization, 847 F.2d 1307, 1312 (9th
Cir. 1988).
2
was violated by the concatenation of the IJ’s release of prior counsel, the shortness
of the time Gomez was given to obtain new counsel, who had to be ready to
proceed, the notice that he could not obtain any continuances, and the IJ’s failure to
inquire into his desire for representation before proceeding. See Montes-Lopez v.
Holder, 694 F.3d 1085, 1088–89 (9th Cir. 2012); Biwot v. Gonzales, 403 F.3d
1094, 1098–99 (9th Cir. 2005); Tawadrus, 364 F.3d at 1103–04; Rios-Berrios v.
I.N.S., 776 F.2d 859, 862–63 (9th Cir. 1985). Moreover, “an alien who shows that
he has been denied the statutory right to be represented by counsel in an
immigration proceeding need not also show that he was prejudiced by the absence
of the attorney.” Montes-Lopez, 694 F.3d at 1093–94.5
Petition GRANTED.
5
Because our decision on this ground is dispositive, we need not, and do not,
consider the other issues raised by the parties.
3
FILED
Gomez Hernandez v. Holder, 09-73086 NOV 25 2013
MOLLY C. DWYER, CLERK
Ikuta, J., concurring: U.S. COURT OF APPEALS
I concur in the majority’s decision reluctantly. Although I am bound by
Montes-Lopez v. Holder’s holding that the denial of an alien’s statutory right to
counsel is per se reversible error, 694 F.3d 1085, 1090, 1093–94 (9th Cir. 2012),
this conclusion contradicts our precedents, see Singh v. Holder, 638 F.3d 1196,
1209 (9th Cir. 2011); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004);
Castro-O’Ryan v. U.S. Dep’t of Immigration & Naturalization, 847 F.2d 1307,
1312–13 (9th Cir. 1987), is contrary to basic principles of administrative law, see
Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009), and comes down on the wrong
side of a circuit split, see, e.g., Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.
1993) (requiring a petitioner who alleges a denial of the right to counsel in
immigration proceedings to demonstrate prejudice); Farrokhi v. INS, 900 F.2d 697,
702 (4th Cir. 1990) (same); Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990)
(same).
Montes-Lopez’s improper reliance on Sixth Amendment precedents, see 694
F.3d at 1092, side-steps our long-established rule that a petitioner has only a
statutory right to counsel, 8 U.S.C. § 1362, that “stem[s] from the Fifth
Amendment guarantee of due process,” Tawadrus, 364 F.3d at 1103. Our
precedents make clear that violations of the Fifth Amendment guarantee of due
process in the immigration context are subject to review for harmless error. See,
e.g., Singh, 638 F.3d at 1209 (rejecting claim of due process error where the
petitioner could not demonstrate prejudice); Sanchez-Cruz v. INS, 255 F.3d 775,
779 (9th Cir. 2001) (requiring an alien to demonstrate prejudice to obtain relief
from a BIA decision that violates due process). Indeed, we have explained that the
agency’s failure to accord an alien the statutory right to counsel would amount to a
denial of due process only “[i]f the prejudice to the alien is sufficiently great.”
Castro-O’Ryan, 847 F.2d at 1313. In reaching the erroneous conclusion that a
violation of a petitioner’s Fifth Amendment right is a structural error requiring
remand in every case, Montes-Lopez turned its back on these binding precedents.
Not only does Montes-Lopez’s conclusion conflict with our case law, it also
contradicts basic principles of administrative law. As the Supreme Court explained
in Shinseki v. Sanders, federal courts may not presume that an administrative
agency’s error was prejudicial, but rather must determine harmlessness on a fact-
specific, case by case basis. 556 U.S. at 407. Although Sanders articulated this
rule in the context of veteran claims appeals, the Court noted this rule applied to
other administrative agency decisions as well. Id. at 406. And we have likewise
acknowledged the applicability of this rule in immigration proceedings. Castro-
O’Ryan, 847 F.2d at 1313; see also Zolotukhin v. Gonzales, 417 F.3d 1073,
2
1076–77 (9th Cir. 2005) (holding that the petitioner must show prejudice before we
can grant a petition for review based on a due process violation). Indeed, there is
no logical basis for holding that the denial of the statutory right to counsel is a
structural error in immigration proceedings, particularly when such an error is
reviewed for harmlessness in other administrative contexts. See Vidal v. Harris,
637 F.2d 710, 713 (9th Cir. 1981) (requiring a social security claimant to
“demonstrate prejudice or unfairness in the administrative proceedings” from “the
absence of counsel”).
Now, instead of following the circuits that properly adhere to this long-
established analysis applicable to agency errors, Montes-Lopez and the out-of-
circuit opinions on which it relies inexplicably abandon this standard and instead
treat an alien’s Fifth Amendment statutory right to counsel “at no expense to the
government” as if it were equivalent to a criminal defendant’s absolute Sixth
Amendment right to counsel. Montes-Lopez, 694 F.3d at 1092–93. This
conclusion has no basis in the Constitution or in precedent, and is contrary to
Sanders’s warning against the use of “mandatory presumptions and rigid rules
rather than case-specific application of judgment” in determining whether an
administrative agency’s error requires reversal. 556 U.S. at 407.
Accordingly, while I am bound by Montes-Lopez, it was wrongly decided,
3
and we should revisit this decision en banc.
4