dissenting.
Two important considerations lie at the heart of this difficult case: the right to retain and be represented by counsel in immigration proceedings, and the very serious nature of immigration proceedings— especially asylum proceedings. This is an area of law where there are few signposts or settled principles to guide us, but it is nonetheless clear that the majority and I hold different views of the constraints imposed upon immigration judges by the right of one in petitioner’s position to choose to be represented by counsel. Although I am in agreement with the majority with respect to its holding that Ponce-Leiva’s claims were not procedurally barred, I disagree with the majority’s conclusion that the immigration judge did not abuse his discretion by disregarding Ponce-Leiva’s right to have counsel at his asylum merits hearing. I must, therefore, respectfully dissent.
At the outset, I think it necessary to call particular attention to the circumstances surrounding Ponce-Leiva’s attempted exercise of his right to counsel. An understanding of the factual setting in this case is crucial to my view that the immigration judge did not properly handle the matter before him. At his initial hearing, Ponce-Leiva was informed by the immigration judge of his right to obtain counsel at his own expense, and the case was continued to allow Ponce-Leiva sufficient opportunity to find representation. Ponce-Leiva immediately exercised his rights by seeking and securing counsel, with whom he appeared at his removal eligibility hearing. At that hearing on November 4, 1997, Ponce-Leiva, through his counsel, conceded removability and indicated that he would pursue asylum. The immigration judge set a trial date for the merits hearing of Wednesday, July 1,1998, some eight months later.
Sometime in the week prior to the scheduled merits hearing, Ponce-Leiva met with and paid his attorney. At that meeting, counsel notified Ponce-Leiva that he would be unable to make the hearing date and would request a continuance. In a letter dated Thursday, June 25, 1998, Ponce-Leiva’s counsel requested that the immigration judge continue the case due to his inability to attend the hearing because he would be in San Diego, California on the hearing date. On Monday, June 29, the judge received the letter, and apparently denied the request immediately, writing on the proposed order of continuance, “Denied. You accepted this date on Nov. 4, 1997.” There is no evidence, however, that the denial was communicated to Ponce-Leiva or his attorney, and the record makes clear that counsel expected the continuance to be granted.
At the hearing two days later, Ponce-Leiva appeared without counsel. The immigration judge announced on the record that he had received the request for a continuance, but had decided to deny the request and proceed with the hearing. The immigration judge did not ask Ponce-Leiva whether or not he desired to proceed without representation, but opined that it would be in Ponce-Leiva’s best interest to move ahead with the asylum eligibility hearing without Ponce-Leiva’s *379retained counsel. I include the immigration judge’s relevant comments, in full, in the margin.1
The majority is obviously correct that, generally speaking, it is within an immigration judge’s discretion whether to grant or deny a continuance. However, it is also the case that the scope of the judge’s discretion is limited by the statutory and constitutional rights of the parties. Thus, an unjustified denial by an immigration judge of an asylum applicant’s right to have his retained counsel at his side can surely constitute an abuse of discretion requiring reversal. See, e.g., Castanedas-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir.1975) (holding that the failure to grant a continuance is an abuse of discretion where it deprives the alien of the right to counsel); see also Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) (recognizing, in criminal context, that trial judges have discretion over continuances, but stating nonetheless that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality”); Romero-Morales v. INS, 25 F.3d 125, 130-31 (2nd Cir.1994) (citing Ungar in immigration context); Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985) (same).
Ponce-Leiva’s case presents a compelling set of facts for finding a right to counsel violation. Ponce-Leiva clearly desired representation at his asylum hearing; he sought out, retained, and paid counsel to represent him. And, crucially, Ponce-Leiva never waived his rights. The immigration judge never asked whether Ponce-Leiva wished to continue without representation, yet he proceeded with the hearing *380absent Ponee-Leiva’s retained counsel and ultimately found him deportable.
The majority acknowledges that Ponce-Leiva’s right to counsel is based on both the Constitution and a federal statute. Yet it appears to hold that Ponce-Leiva’s right to counsel is somehow subservient to the immigration judge’s exercise of discretion over continuance requests, even where it means that the applicant proceeds unrepresented against his wishes. The majority even likens the instant situation to one in which a deportee has been unable to obtain counsel.2 This line of reasoning appears to render the “right” to be represented by retained counsel to be something less than a true right. But the statute provides that aliens “shall have the privilege of being represented ... by counsel of [their] choosing.” 8 U.S.C. § 1229a(b)(4)(A).3 I submit, accordingly, that once an asylum seeker has retained counsel, he is entitled to have his counsel at his asylum hearing. Proceeding without counsel in such a circumstance, absent the applicant’s waiver of his right or evidence of bad faith, is a statutory violation.
While it is well settled that immigration proceedings are not criminal in nature, and that the right to counsel at issue here does not arise from the protections of the Sixth Amendment, see, e.g., Lu v. Ashcroft, 259 F.3d 127, 131 (2001), we cannot treat immigration proceedings like everyday civil proceedings, despite their formally civil character. See INS v. Lopez-Mendoza, *381468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (stating that immigration proceedings are civil). Immigration proceedings occupy a unique place in law both somewhat distinct from, but sharing features with, both civil and criminal actions. We must always take care to remember that, unlike in everyday civil proceedings, “the liberty of an individual is at stake” in deportation proceedings, and that:
[t]hough deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.
Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); see also McLeod v. Peterson, 283 F.2d 180, 183 (3d Cir.1960) (stating that immigration proceedings involve “an especially critical and fundamental individual right”). The exceptional life-altering character of immigration proceedings underscores the gravity of the right to counsel during such proceedings, and courts have accordingly emphasized the distinct and fundamental importance of that right. See, e.g., Lu, 259 F.3d at 132 (“Congress has long recognized the importance of counsel in immigration proceedings.”); Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.2000) (“Deprivation of the statutory right to counsel deprives an alien asylum-seeker of the one hope she has to thread a labyrinth almost as impenetrable as the Internal Revenue Code.”); Waldron v. INS, 17 F.3d 511, 518 (2d Cir.1993) (holding that the alien’s right to counsel is a “fundamental” right); Baires v. INS, 856 F.2d 89, 91 n. 2 (9th Cir.1988) (stating that the right of counsel in deportation proceedings is “critical” and “fundamental,” and that it “must be respected in substance as well as in name” (citing Rios-Berrios, 776 F.2d at 863-64)); Reyes-Palacios v. INS, 836 F.2d 1154, 1155 (9th Cir.1988) (“The importance of counsel, particularly in asylum cases where the law is complex and developing, can neither be overstated nor ignored.”). In short, although not implicated by the Sixth Amendment’s guarantees, the right is based on principles of constitutional due process.4
Also distinguishing the immigration context from everyday civil disputes is the fact that attorneys in immigration proceedings are held to a constitutionally imposed minimum level of proficiency. That is, aliens, like criminal defendants and unlike the parties in normal civil disputes, may *382obtain relief from the ineffective assistance of counsel. See, e.g., Lu, 259 F.3d at 131-32 (stating that due process guarantees the effective assistance of counsel in immigration proceedings); see also, e.g., Friedman v. Arizona, 912 F.2d 328, 333 (9th Cir.1990) (stating that there is no right of effective assistance of counsel in a civil case); Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.1988) (same). Indeed, Ponce-Leiva makes just such a claim here.
The majority’s opinion conflicts with our single most relevant decision in this area, Chlomos v. INS, 516 F.2d 310 (3d Cir.1975). In Chlomos, we considered the “extent to which an administrative agency may curtail a statutorily conferred right to the assistance of retained counsel.” Id. at 311. The case involved an alien who clearly expressed his desire to retain representation, but who ultimately went unrepresented during a deportation hearing in Florida. Id. at 312-13. Over a period of several weeks, the case was twice continued in order to allow Chlomos an adequate opportunity to obtain representation. Id. Although Chlomos had retained counsel, he appeared unrepresented at his scheduled hearing. Id. Apparently Chlomos had serious difficulty in contacting his attorney — at least partly due to the fact that he was incarcerated — and the agency never sent notice to counsel, even though it had ready access to his contact information. Id. at 312-314. Chlomos’s counsel had requested that the case be transferred back to New Jersey, the venue in which his case had initially originated, but the immigration judge simply proceeded with the hearing. Id. Chlomos refused to participate in the proceedings besides a repeated request to speak with his lawyer, and was ultimately ordered to be deported. Id. at 313.
We reversed. We began by reiterating the gravity of the alien’s constitutionally guaranteed right to due process and statutorily guaranteed right to counsel during immigration proceedings. Id. at 313-14. Holding that Chlomos’s rights had been subject to an “undue curtailment” necessitating reversal, id. at 311, we stated:
While two continuances were granted in this case, as a practical matter, they were inadequate to make the services of his chosen counsel available to petitioner. There was no necessity for the hasty hearing by the immigration judge, and arrangements could have been made which would have been reasonable for both the government and petitioner’s counsel. We do not condone unnecessary delay or dilatory tactics through the ruse of counsel’s unavailability. Efficient management of the administrative process can prevent such abuse when it appears. That did not appear to be a problem here.
Id. at 314.
Our analysis in Chlomos has never been overruled, or even questioned, and I submit that it directly controls the case before us. Just as in Chlomos, the immigration judge here was not presented with evidence of “unnecessary delay or dilatory tactics through the ruse of counsel’s availability.” And, just as in Chlomos, here Ponce-Leiva clearly sought to have representation during his disposition hearing but went without representation because of the refusal of the immigration judge to continue the case without any compelling justification. The majority distinguishes Chlomos based on the “decision to hold a hearing without the petitioner’s attorney being notified.” Here, however, the record similarly does not reflect that counsel was advised that his continuance request was denied. Further, given the emphasis both the immigration judge and the majority apparently place on the tardiness and inadequacy of counsel’s request for a con*383tinuance, it is notable that in Chlomos there was no request for a continuance— only an informal request for a transfer made by Chlomos’s counsel to the INS. Nonetheless, in Chlomos we essentially held that the immigration judge was under an obligation to continue the case sua sponte in order to preserve Chlomos’s right to counsel. Similarly, the immigration judge here was under an obligation to either obtain a waiver from Ponce-Leiva of his right to counsel, or continue the case to allow an adequate opportunity for Ponce-Leiva to secure his counsel’s presence. See Chlomos, 516 F.2d at 313-14.
The majority’s assessment of this case is also contrary to the settled views of several of our sister Courts of Appeals, views that in large part echo our opinion in Chlomos. The decision by the Court of Appeals for the Seventh Circuit in Castanedcu-Delgado v. INS, 525 F.2d 1295 (7th Cir.1975), is one instructive example. At their initial hearing, the Castanedas stated that they wished to obtain representation, and the court granted a two-day continuance for that purpose. Id. at 1297. At the hearing two days later, the Castanedas again appeared unrepresented, explaining that their attorney was unable to come but that they would seek alternative counsel. Id. Their request for another continuance, however, was denied by the immigration judge, who proceeded to the merits and found them deportable. Id.
Like Ponce-Leiva, the Castanedas urged that “in summarily denying them a further continuance ... and in compelling them to proceed without an attorney,” the immigration judge’s actions were “arbitrary, capricious, and an abuse of discretion which improperly and effectively denied them of their right to be represented by an attorney of their choice.” Id. at 1298. The INS also took a similar position to the one taken here, arguing that the denial of the continuance “was wholly within the discretion of the immigration judge and [could] not be said to be arbitrary and capricious or an abuse of discretion.” Id. at 1299.
The Seventh Circuit reversed, finding the arguments of the INS “singularly unimpressive.” Id. The court recognized that “the question of whether or not to grant a continuance at such an administrative hearing ordinarily rests in the discretion of the officer conducting the hearing (in this case, the immigration judge),” but reiterated that such decisions are “subject to reversal if there is a clear showing of abuse of that discretion.” Id. at 1300. Analyzing the facts before them, the court then stated:
In the case at bar, the immigration judge had no justification for denying a reasonable further continuance to the Castanedas for the purpose of obtaining counsel ... and then compelling them to proceed with the hearing without representation. By so doing, the immigration judge denied the Castanedas procedural due process by depriving them of their right to counsel granted by statute and regulation. We hold that these actions of the immigration judge were arbitrary and capricious and constituted a gross abuse of discretion.
Id. (citing Chlomos v. INS, 516 F.2d 310 (3d Cir.1975)).
The Seventh Circuit has since reaffirmed the principles underlying that decision. See, e.g., Snajder v. INS, 29 F.3d 1203 (7th Cir.1994). Similarly, the Court of Appeals for the Ninth Circuit has time and again held that the “[f]ailure to accord an alien” his statutory right to counsel “may, in light of the entire administrative record, be an abuse of discretion requiring remand.” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir.1987); see also, e.g., Escobar-Grijalva v. INS, 206 F.3d 1331 (9th *384Cir.2000) (holding that the immigration judge’s denial of petitioner’s right to choose counsel was an abuse of discretion). Particularly relevant is a long line of cases, with facts resembling those here, holding that the decision of an immigration judge to deny a continuance may violate the alien’s right to counsel and constitute an abuse of discretion. See, e.g., Reyes-Palacios v. INS, 836 F.2d 1154 (9th Cir.1988) (reversing on this basis); Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir.1987) (same); Rios-Berrios v. INS, 776 F.2d 859 (9th Cir.1985) (same); Castro-Nuno v. INS, 577 F.2d 577, 579 (9th Cir.1978) (same).
The majority downplays the significance of this line of cases, but I submit that they represent ample authority to support Ponce-Leiva’s claim that his rights were violated.5 Just as in Castaneda-Delgado, here the immigration judge had no reasonable justification for denying the continuance and compelling Ponce-Leiva to proceed without counsel. Although the record suggests that the immigration judge was sincere in his belief that proceeding with the asylum eligibility hearing without counsel was in Ponce-Leiva’s best interests, his reasons for doing so were entirely subjective, uninformed by any dialogue with Ponce-Leiva regarding his wishes. The majority states that the immigration judge “made a reasonable determination that in light of counsel’s previous deficient performance with respect to Ponce-Leiva, his absence at the hearing would have made no difference.” Yet there is in fact little evidence to support any conclusion of deficiency on the part of counsel. It is clear from counsel’s letter to the immigration judge that he assumed the continuance request would be granted. After offering a number of alternative hearing dates during the following weeks, counsel wrote, “I will communicate with the Court upon my return in order to arrange a suitable trial date.” Furthermore, there is no evidence of any dilatory behavior or bad faith on the part of counsel prior to the continuance request. To the contrary, counsel appeared for Ponce-Leiva at a previous proceeding, and had made numerous attempts to contact his client in the months preceding the asylum merits hearing. Additionally, it is worth reiterating that there is no evidence regarding why the attorney needed the continuance other than that he needed to be in San Diego. For all we know this could have been a court ordered appearance required at the last minute. To presume some laxity or deficiency in counsel’s performance, or lack of respect for the Court, on this basis is not called for. It is neither our role nor the role of the immigration judge to speculate about missing facts, but it should be noted that it is not at all uncommon for an attorney to need a continuance for wholly legitimate reasons even where, as here, the hearing date was set far in advance. Arguably the date having been set so far in advance provides more of an excuse, as counsel likely could not have known or predicted months before what demands he might face at that time.
*385Finally, there is no evidence that the continuance request was made for dilatory reasons; this was the very first listing of the hearing on the merits and the very first request for a continuance. Certainly the immigration judge was correct to take note of the inconvenience and cost to the government of continuing the hearing, as well as that it would have been preferable had counsel submitted the request earlier, but those considerations have little to do with whether it was “better” for Ponce-Leiva to proceed without the attorney he retained and paid to represent him, and cannot seriously be said to overcome Ponce-Leiva’s right to have counsel on these facts if he desired to do so. Thus, at least in the circumstances presented here, where the alien has exercised or clearly intends to exercise his right to counsel, and there is no evidence of waiver, bad faith, or dilatory tactics, I cannot agree with the majority that the immigration judge’s failure to grant a continuance was not an abuse of discretion.
Assuming that we would find a deprivation of Ponce-Leiva’s right to counsel, the government argues that no relief is warranted because Ponce-Leiva’s asylum claim lacked merit and, thus, he suffered no prejudice. In Chlomos we did not explore the need for a showing of prejudice because it was clear under the facts present there that prejudice existed. Chlomos, 516 F.2d at 314. Although we have expressed our “misgivings” with the view that a showing of prejudice is necessary under, these circumstances, id., it is a question on which we have yet to rule.6 See id.; see also Chong v. INS, 264 F.3d 378, 390 n. 2 (3d Cir.2001). And, because the majority holds that Ponce Leiva’s right to counsel was not infringed, it did not address this unsettled question.7
There is persuasive authority for the conclusion that a claimant such as Ponce-Leiva need not make a showing of prejudice in order to establish a claim of reversible error when the immigration judge unjustifiably proceeds without counsel,8 *386Even were we to hold that prejudice must be present, however, the record suggests that reversal may still be appropriate. The majority seems to dismiss the possibility that Ponce-Leiva was prejudiced by the absence of his counsel, but that conclusion cannot be so easily drawn. Although Ponce-Leiva’s current counsel rightly conceded at oral argument that there is little on this record to indicate that Ponce-Leiva has a meritorious claim for asylum, he also reiterated that all of the primary evidence in the record was uncounselled. See Colindres-Aguilar, 819 F.2d at 262 (“Retained counsel could have better marshalled specific facts in presenting petitioner’s case for asylum and withholding of departure.”); Rios-Berrios, 776 F.2d at 868 (finding that petitioner was prejudiced where the case could be “more advantageously presented” by retained counsel). Moreover, it is notable that the immigration judge never asked Ponce-Leiva on what basis he believed he was entitled to asylum. The immigration judge asked all around the issue, but never posed the question directly. Under such circumstances, it would not be unreasonable to find that Ponce-Leiva was prejudiced by the absence of counsel.
I would grant the petition for review, reverse, and remand for a new asylum hearing.
. The immigration judge stated:
Initially, the question arises as to whether the case should be continued. Counsel for the respondent wrote a letter received by the Immigration Court on June 29, 1998. The Immigration Court denied the request for the continuance. The respondent’s counsel did not appear and did not arrange for a substitute.
On July 1, 1998, the Immigration Court decided that it would be in the best interest of the respondent to go forward with this case. The respondent testified that he had received no assistance whatsoever from his counsel, either in preparation for the asylum hearing or advice regarding how he could attempt to obtain lawful permanent resident status in this country. To continue the case would in effect place this respondent in the hands of his counsel again, who has shown no reluctance in collecting fees from the respondent although there is no evidence that he's ever done anything in return for those fees. This would be to the financial detriment of this young man who works hard for his living in the United States.
It would also serve no useful purpose since the record shows clearly that the counsel for the respondent did nothing to help the respondent. There is little likelihood that he would do anything at a future hearing either. It would also not be in the interests of taxpayers to continue this case. Despite eight months notice of the hearing, and his own personal agreement to attend the case in November 1997, counsel for the respondent failed to come at the last minute. Every time this young man has come to Court, and he’s already been here three times, he has to take off from work. It is an aggravating experience for anybody to have attend [sic] such hearings.
The taxpayers have paid for the interpreter and four hours of Court time have been set aside to hear this case. It would upset the expectations of the Service if these cases cannot be processed on an orderly basis. It would also impede the ability of the Court to manage its docket if attorneys could do what the counsel for the respondent did in this case, specifically, fail to come for hearings that have been scheduled long in advance.
Finally, the Board .of Immigration Appeals has held that absence of counsel is not necessarily prejudicial err [sic]. Especially in circumstances such as those present in this case where the counsel has done nothing for the respondent.
. This analogy seems to be ill suited to the realities of these very different factual settings and is unsupported by the case law the majority references. The decision in Nazakat v. INS, 981 F.2d 1146 (10th Cir.1992), certainly was not, as the majority states, one in which an immigration judge simply proceeded with a hearing after the petitioner was unable to secure representation within a reasonable time. To the contrary, in that case the petitioner was advised of his right to counsel but waived it, choosing instead to "represent himself and continue with the hearing.” Id. at 1147. In addition, the court’s statement that "a petitioner's inability to obtain counsel ... does not constitute a violation of due process” was in the very different context of the petitioner's argument that strict application of the applicable regulations necessarily violates due process where the petitioner appears pro se and lacks a command of English. Id. at 1148. Similarly, in United States v. Torres-Sanchez, 68 F.3d 227 (8th Cir.1995), the petitioner made one unsuccessful attempt to secure representation but subsequently decided to proceed without counsel. The court found that the petitioner "was not deprived of counsel but knowingly waived his statutory right to counsel.” Id. at 231. In Vides-Vides v. INS, 783 F.2d 1463 (9th Cir.1986), the Court of Appeals for the Ninth Circuit held that the immigration judge had not committed reversible error in proceeding to the merits when the petitioner had been unable to secure counsel after four months and two continuances. Id. at 1470. However, it has clearly refused to analogize that decision to situations like the one presented here. See, e.g., Colindres-Aguilar v. INS, 819 F.2d 259, 261 & n. 2 (9th Cir.1987) (distinguishing Vides-Vides explicitly and holding that where the petitioner was represented but counsel was absent, the immigration judge was obligated to inquire whether the petitioner wished to proceed without counsel). In short, these cases lend little support to the principles upon which the majority’s opinion is based.
. The majority does not assert that the statutory reference to a "privilege” makes this less than a right, nor could they. The subheading of the relevant statutory language refers to the “rights” of the alien, 8 U.S.C. § 1229a(b)(4), and the implementing regulations refer to a "right” and "entitle[ment]” to counsel. 8 C.F.R. §§ 292.1, 292.5. At any rate, the distinction between "rights” and "privileges” has been long discredited. See, e.g., Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) ("[T]his Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege.' ”); Palmer v. Merluzzi, 868 F.2d 90, 98-99 (3d Cir.1989) (Cowen, J., concurring in part and dissenting in part); Skipworth v. United States, 508 F.2d 598, 601 (3d Cir.1975).
. The right to counsel in immigration proceedings, while provided by federal regulation and statute, see, e.g., 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 240.3, is grounded in constitutional protections. See, e.g., Montilla v. INS, 926 F.2d 162, 166 (2d Cir.1991) ("[T]he Due Process clauses and Immigration and Nationality Act afford[] an alien the right to counsel of his own choice at his own expense.”); Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir.1990) ("[A]liens have a due process right to obtain counsel of their choice at their own expense.”); see also Saakian v. INS, 252 F.3d 21, 24-25 (1st Cir.2001) (stating that the statutory right to counsel is " ‘an integral part of the procedural due process to which the alien is entitled’ " (quoting Botanic v. INS, 12 F.3d 662, 667 (7th Cir.1993))); Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000) (same). See generally Reno v. Flores, 507 U.S. 292, 307, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("It is well established that the Fifth Amendment entitled aliens to due process of law in deportation proceedings.” (citing The Japanese Immigrant Case, 189 U.S. 86, 100-01, 23 S.Ct. 611, 47 L.Ed. 721 (1903))); Chlomos v. INS, 516 F.2d 310, 313 (3d Cir.1975) ("An alien subjected to deportation proceedings is entitled to due process of law.”).
. The majority distinguishes the Castanedas’ situation from Ponce-Leiva's by concluding that, here, Ponce-Leiva had an attorney, and the attorney “simply decided he was not going to show up.” I submit, however, that the denial of a continuance in this situation, when Ponce-Leiva had retained and paid counsel, and counsel had requested a first continuance by letter — not by “simply” not showing up — is even more arbitrary than the denial in Castaneda-Delgado. See, e.g., Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir.1986) (stating that interference with “an established, on-going attorney-client relationship" like the one present here is a “key factor” in finding a violation of the right to counsel).
. This is a question on which our sister Courts of Appeals have split. Compare, e.g., Ogbemudia v. INS, 988 F.2d 595 (5th Cir.1993) (requiring that alien make a showing of prejudice), Farrokhi v. INS, 900 F.2d 697 (4th Cir.1990) (same), and Michelson v. INS, 897 F.2d 465 (10th Cir.1990) (same), with Waldron, 17 F.3d at 518 (requiring no showing), and Castaneda-Delgado, 525 F.2d at 1299 (same). It should also be noted that, although the majority suggests otherwise, the Court of Appeals for the Ninth Circuit has yet to determine "whether a showing of prejudice must be made where the right to counsel has effectively been denied a respondent in a deportation hearing." United States v. Ahumada-Aguilar, 295 F.3d 943, 950 (9th Cir.2002).
. The majority did, however, note that the immigration judge can take the "merits” into account in determining whether a continuance should be granted. But exploring and judging the "merits” absent assistance of, and explication and advocacy from, counsel, would appear only to exacerbate the denial of the right. Indeed, it seems somewhat akin to concluding that the defendant who has confessed doesn’t need a lawyer.
. The decisions of several of our sister Courts of Appeals support the proposition that where the violated right is a fundamental one grounded in federal statutory and constitutional law, such as the right to be represented by counsel in asylum proceedings, prejudice to the alien should be presumed. For instance, the Court of Appeals for the Second Circuit, in Montilla v. INS, 926 F.2d 162 (2d Cir.1991), held that "an alien claiming that the INS has failed to adhere to its own regulations regarding the right to counsel in a deportation hearing is not required to make a showing of prejudice before he is entitled to relief.” Id. at 169. On that court’s view, "when a regulation is promulgated to protect a fundamental right derived from the Constitution or a federal statute, and the INS fails to adhere to it, the challenged deportation proceeding is invalid and a remand to the agency is required.” Waldron, 17 F.3d at 518. Similarly, the Court of Appeals for the Seventh *386Circuit held in Castaneda-Delgado that "when an alien is denied his right to counsel in a deportation hearing, the alien is entitled to a new hearing with counsel.” Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir.1994). Analogizing the right to counsel in immigration proceedings with the right to counsel in the criminal context, the court stated that "the right to be represented by counsel of their choice granted to aliens in deportation proceedings by statute and regulations is too important and fundamental a right to be circumscribed by a harmless error analysis.” Castaneda-Delgado, 525 F.2d at 1300. "The circumstances,” the court concluded, "call for the prophylactic remedy of vacating the order of deportation and for writing thereafter on a clean slate.” Id. at 1302; see also Snajder, 29 F.3d at 1207; Yiu Fong Cheung v. INS, 418 F.2d 460 (D.C.Cir.1969).