Ninth Circuit Finds Faulty Translation Violated Non-Citizen's Right to Counsel

The Ninth Circuit has determined that a non-citizen’s right to counsel was violated when an interpreter translated his right to counsel as the right to “hire” an attorney. “Considering these circumstances, Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for ‘hire’ in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation.” “Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”

The full text of U.S. v. Valdivias-Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/09/20-10415.pdf

Eleventh Circuit Requires Petitioner to Show Substantial Prejudice Resulting from Violation of Right to Counsel

The Eleventh Circuit has declined to address whether a petitioner has a right to counsel during an immigration judge’s review of a negative reasonable fear determination. In this case, the petitioner had been issued a final order of administrative order of removal due to an aggravated felony conviction. The court instead determined that even if such a right exists, the petitioner must show substantial prejudice stemming from the violation of that right, and the petitioner failed to do so in this case.

The full text of Priva v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202012521.pdf

Ninth Circuit Finds Violation of Right to Counsel

The Ninth Circuit has determined that an asylum seeker’s right to counsel was violated when the judge refused to continue a merits hearing that pro bono counsel could not be at due to a conflicting hearing. The decision has a good analysis of the difficulties of obtaining counsel for non-English speaking detainees.

The full decision in Usubakunov v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/01/18-72974.pdf

Ninth Circuit Finds that Non-Citizen has Right to Counsel During Reasonable Fear Review

The Ninth Circuit has determined that a non-citizen subject to a reinstatement order has a right to counsel in a reasonable fear review with an Immigration Judge. However, that right must be taken in the context of the regulation that requires that reasonable fear reviews be conducted within ten days of the issuance of the Asylum Officer’s negative reasonable determination. Thus, the agency did not deny the petitioner his right to to counsel when he requested time to find an attorney at his hearing, which was scheduled on Day 8 of 10.

The full text of Orozco-Lopez v. Garland and Gonzalez Martinez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/20-70127.pdf

Ninth Circuit Finds no Jurisdiction to Review Constitutional Claims in Expedited Removal Proceedings

The Ninth Circuit has determined that it has no jurisdiction to determine if a non-citizen was deprived of his right to counsel in a credible fear review because it lacks the authority to review constitutional claims related to expedited removal proceedings.

The full text of Guerrier v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-70115.pdf

An amended opinion was issued on November 9, 2021, and can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/09/20-70115.pdf

First Circuit Finds IJ Violated Asylum Seeker's Right to Counsel

The First Circuit has determined that an Immigration Judge violated an asylum seeker’s right to counsel by only giving her 14 business days to secure counsel after she learned that her bond attorney could not continue representation. In addition, the court noted the many arguments made by counsel in the BIA appeal, which demonstrate that the presence of counsel at the IJ level likely would’ve had a material outcome on the proceedings.

The full text of Hernandez Lara v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1524P-01A.pdf

Ninth Circuit Affirms Right to Counsel in Administrative Removal Proceedings for non-LPR Convicted of Aggravated Felony

The Ninth Circuit has determined that 8 U.S.C. § 1228, which governs expedited removal proceedings for noncitizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. As such, the Immigration Judge erred by not getting a waiver of the petitioner’s right to counsel during the review of a negative reasonable fear determination. The petitioner was not required to show prejudice from the violation of his statutory right to counsel to prevail on his due process claim.

The full text of Zuniga v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/16-72982.pdf

An amended opinion, published on December 26, 2019, can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/26/16-72982.pdf

CA Appeals Court Discusses Right to Hearing and Counsel for 1473.7 Motion

The California Court of Appeal, Fourth Appellate District, has determined that the moving party is entitled to a hearing under Penal Code 1473.7. The court further stated that “if the moving party is indigent and cannot attend the hearing because he or she is in federal custody awaiting deportation, we find the trial court should appoint counsel.” The court reasoned that “if a postconviction petition by an incarcerated defendant attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.”

The full text of People v. Fryhaat can be found here: http://sos.metnews.com/sos.cgi?0619//E070847

Ninth Circuit finds that IJ Must Advise about SIJS Eligibility and Declines to Assess if Minors have a Right to Appointed Counsel

The Ninth Circuit has issued an en banc decision finding that an Immigration Judge has the obligation to advise an individual in removal proceedings about potential eligibility for Special Immigrant Juvenile Status (SIJS) if eligibility for that relief is apparent. The court found that statements in the record that the minor had not had contact with his father for many years raised the inference that reunification with his father is not viable due to abandonment, and the death threats he received from the gang members raised the inference that it was not in the minor’s best interest to return to Honduras.

The en banc court also strongly suggested that a judge should grant a continuance for a minor to pursue SIJS when the child is “actively pursuing” the state-court order.

The court declined to address whether a minor in removal proceedings has a constitutional right to counsel, as the minor in this case obtained counsel in future administrative proceedings.

This en banc decision differs significantly from the original panel decision in this case, which conclusively determined that no such right exists, and also held that the the judge was not required to advise the minor about SIJS because hd did not yet have a predicate order from the state court. The en banc court stated that to require a minor to have already obtained a predicate order before requiring a judge to judge to advise about the possibility of SIJS relief “would eviscerate the utility of advice by the IJ and substantially undermine the core purpose of the IJ’s duty to advise—to inform a minor of rights and avenues of relief of which he may not yet be aware.”

The full text of C.J.L.G. v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/03/16-73801.pdf

The original panel decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/29/16-73801.pdf

Ninth Circuit Addresses Violation of Right to Counsel

The Ninth Circuit has determined that a petitioner who alleges a violation of his right to counsel must demonstrate that he was prejudiced by the violation.  The court declined to accord a presumption of prejudice in such a situation.  With respect to the petitioner, the court noted that "he might have been able to show prejudice had he attempted to contest the facts rendering him removable yet been foreclosed from doing so by virtue of his earlier un-counseled admissions. But he has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he cannot contend that his un-counseled admissions cost him the chance to raise plausible grounds for contesting removal. Nor can he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal, since he was ultimately given a reasonable fear interview and allowed to make the case that he should be granted withholding of removal."  

The full text of Gomez-Velazco v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

Ninth Circuit Finds no Right to Counsel in Expedited Removal

The Ninth Circuit has held that an individual expeditiously removed by Customs and Border Protection has no right to counsel during the expedited removal process.  This analysis focuses heavily on the idea that expedited orders of removal only apply to individuals who cannot prove they have been present in the United States for 14 days, and thus, not to individuals with strong ties to the United States.  In light of the Trump administration's proposal to expand expedited orders of removal to individuals who cannot prove 2 years of presence in the United States, this finding may be up for review again quite soon.

The court declined to determine if a failure to advise an individual of their right to withdraw their application for admission in expedited removal proceedings violates due process, finding that the petitioner could not prove that it was plausible that such relief would have been granted.  

The full text of US v. Peralta-Sanchez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/07/14-50393.pdf

Ninth Circuit Dismisses Class Action Claim for Appointed Counsel for Unrepresented Minors

The Ninth Circuit has dismissed a class action lawsuit brought by unaccompanied minors seeking appointed counsel to represent them in their immigration proceedings.  The court determined that right-to-counsel claims can only be brought through the petition for review process - which follows the administrative immigration proceeding - and not through a district court action.  The court acknowledged the difficulty of expecting an unrepresented child to assert a right to counsel, but determined that the relevant jurisdictional statutes constrained their authority.  The court clearly expressed an expectation that a right to counsel claim will be brought through a petition for review, and called on Congress and the Executive to resolve this problem through the legislative process instead of waiting for judicial decision.

The full text of J.E. F.M. v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf