C-B, 25 I. & N. Dec. 888

Respondent, a Guatemalan national, faced removal proceedings after a January 17, 2012 notice to appear, with a single detention hearing on January 25, 2012 conducted while unrepresented.
During group advisals, respondent initially declined further time to obtain counsel, then asked for a continuance after a later individual inquiry, but the Immigration Judge did not solicit clarification or rule on the continuance.
The Immigration Judge proceeded to take pleadings and find removal despite respondent’s change of mind about seeking counsel.
Respondent expressed fear of returning to Guatemala, triggering the need to advise on asylum, withholding, and CAT protections, which the IJ did not properly do.
The IJ initially granted voluntary departure under 240B(a)(1) before respondent indicated a desire to appeal, then withdrew that grant without addressing eligibility for 240B(b)(1).
Record remand is required for the IJ to (a) grant a continuance to obtain counsel, (b) advise and accept relief applications for asylum/withholding/CAT, and (c) assess eligibility for voluntary departure under 240B(b)(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to representation and continuance	Respondent sought a continuance to obtain counsel and was denied.	Docket efficiency justified proceeding without delay and no explicit waiver obtained.	denial of continuance violated the privilege; remand for continuance and new decision
Advisals when fear of return is expressed	Respondent expressed fear; IJ failed to advise on asylum/withholding and provide forms.	Not explicitly asserted here; standard practice not followed.	IJ must advise and provide forms for asylum/withholding/CAT on fear of persecution; remand
Voluntary departure eligibility after asserting appeal	Respondent could be eligible for 240B(b)(1) at end of proceedings; IJ should evaluate still.	Respondent’s stated intent to appeal precluded 240B(a)(1) departure; eligibility to be considered later.	IJ should assess 240B(b)(1) eligibility at conclusion; remand for such consideration

Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) (denial of counsel rights requires reversal when no valid waiver)
Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004) (waiver must be knowing and voluntary for effective denial of counsel)
Velasquez Espinosa v. INS, 404 F.2d 544 (9th Cir. 1968) (regulatory compliance required in asylum-related advisals)
Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987) (denial of continuance and fair hearing standards)
Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983) (fair hearing requirement for continuances)
Ram v. Mukasey, 529 F.3d 1238 (9th Cir. 2008) (validity of waivers and continuance procedures)
Matter of Cordova, 22 I&N Dec. 966 (BIA 1999) (advise of forms of relief and eligibility considerations)
Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000) (preservation of rights to seek relief when not waiving appeal)
Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999) (conditions for eligibility for voluntary departure)