Baldemar Zuniga v. William Barr, 934 F.3d 1083

Background

Baldemar Zuniga, a Mexican national and convicted aggravated-felon, underwent expedited removal under 8 U.S.C. § 1228 after a drug-trafficking conviction and expressed fear of cartel retaliation for testifying.
An asylum officer conducted a reasonable-fear interview, told Zuniga he had a right to have counsel present, and Zuniga said he would proceed without his attorney; the officer issued a negative reasonable-fear finding.
Zuniga requested de novo review by an Immigration Judge (IJ). At the IJ hearing (by videoconference), the IJ stated Zuniga did not have a lawyer and elicited an abbreviated colloquy in which Zuniga said he did not have counsel. The IJ affirmed the negative reasonable-fear determination, producing a final removal order.
Zuniga petitioned for review arguing the IJ denied his statutory right to counsel and failed to obtain a knowing and voluntary waiver, and that due process required reversal without a prejudice showing.
The government argued there is no statutory right to counsel in the IJ review stage (relying on EOIR guidance interpreting 8 C.F.R. § 208.31) and alternatively that any error was not prejudicial.
The Ninth Circuit held § 1228 and the INA grant a right to counsel in reasonable-fear review hearings before an IJ, the IJ failed to obtain a valid waiver, and no prejudice showing is required; the court remanded for a new hearing honoring the right to counsel.

Issues

Issue	Zuniga's Argument	Barr's Argument	Held
Whether non-citizens in § 1228 expedited removal reasonable-fear IJ review have a statutory right to counsel	§ 1228 and related INA provisions confer the privilege to be represented in such proceedings	EOIR memo and silence in 8 C.F.R. § 208.31 mean IJ discretion to bar counsel at review	Court: § 1228 (and related INA provisions) plainly grants a right to counsel in IJ reasonable-fear review; EOIR interpretation conflicts with statute and is not controlling
Whether a valid knowing and voluntary waiver of counsel occurred at the IJ hearing	No valid waiver; IJ’s brief colloquy was insufficient under Tawadrus	No dispute that colloquy was brief; government argues no reversible error absent prejudice	Court: Waiver invalid under Ninth Circuit standard (Tawadrus requires explicit inquiry and affirmative knowing waiver)
Whether denial of counsel requires a showing of prejudice	Denial of statutory right requires reversal without prejudice showing	Government contends petitioner must show prejudice from lack of counsel	Court: Following Montes-Lopez, deny need to show prejudice when statutory right to counsel was denied
Whether deference to EOIR operating memo/agency interpretation is warranted	Statute controls; agency interpretation cannot override plain statutory text	Agency memo supports limiting representation at IJ review	Court: No deference where agency interpretation of its regulation conflicts with statutory text; Skidmore/Auer limits apply and statute wins

Key Cases Cited

Colmenar v. I.N.S., 210 F.3d 967 (9th Cir. 2000) (standard of review for due process challenges in reasonable-fear proceedings)
Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004) (waiver of statutory right to counsel requires explicit inquiry and knowing, voluntary affirmative response)
Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) (no prejudice showing required when statutory right to counsel is denied)
Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017) (IJ reasonable-fear decision is final agency action reviewable by courts of appeals)
Bartolome v. Sessions, 904 F.3d 803 (9th Cir. 2018) (IJ reviews asylum officer reasonable-fear determinations de novo)
Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 878 F.3d 725 (9th Cir. 2017) (agency interpretation of regulation not controlling when inconsistent with statute)
Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its regulations subject to limits)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretation depends on persuasiveness)