Eladio Gomez-Velazco v. Jefferson Sessions
879 F.3d 989
| 9th Cir. | 2018Background
- Gomez-Velazco, a Mexican national with a prior conviction for second-degree rape (victim age 13), was served with a Notice of Intent to Issue a Final Administrative Removal Order under 8 U.S.C. § 1228(b).
- The notice informed him of rights including the privilege to be represented by counsel (at no expense to the government), the right to rebut charges, and the right to request withholding of removal.
- When DHS attempted to take a sworn statement, Gomez-Velazco refused without his attorney present; DHS knew he had counsel and a pending U-visa application but proceeded.
- Gomez-Velazco admitted the allegations and conceded removability without counsel, declined to waive the 14-day waiting period, and the deciding officer then issued a Final Administrative Removal Order (FARO).
- Before execution of the order, Gomez-Velazco’s attorney filed a petition for review in this court and obtained a stay of removal; he later challenged denial of his U-visa.
- The panel assumed a denial-of-counsel violation occurred and addressed whether prejudice must be shown and whether Gomez-Velazco demonstrated prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a denial of the right to counsel during the initial DHS interaction requires a showing of prejudice to obtain relief | Gomez-Velazco: prejudice should be presumed when counsel is denied; automatic reversal required | Government: plaintiff must show prejudice (error is subject to harmless-error review) | Court: Prejudice must be shown when denial occurs only at the initial stage and the alien can consult counsel before execution of the order |
| Whether Gomez-Velazco showed prejudice from lack of counsel | He argues counsel’s presence could have stayed proceedings and affected U-visa adjudication; issuance of FARO harmed his U-visa chances | Government: no evidence issuance of FARO negatively affects U-visa consideration; agency denied U-visa for criminal-record reasons unrelated to FARO | Court: He failed to show prejudice — no attempt to contest removability after consulting counsel and agency denial rested on criminal history, not FARO |
| Whether issuance of FARO precludes later U-visa approval or negatively influenced adjudication | Gomez-Velazco: FARO issuance prejudiced his pending U-visa application | Government: regulations allow U-visa approval after FARO (order is canceled by operation of law upon approval); no evidence FARO influenced denial | Court: Rejected Gomez-Velazco’s assertion; regulations permit U-visa after FARO and agency cited criminal record as basis for denial |
| Whether Montes-Lopez’s rule (no prejudice required when counsel denied) applies to § 1228 administrative removal initial-stage denials | Gomez-Velazco/dissent: Montes-Lopez applies broadly to immigration proceedings; no prejudice required | Government/majority: Montes-Lopez covers denial at merits hearing where harmless assessment is infeasible; does not extend to a discrete initial-stage denial when post-order counsel can remedy | Court: Montes-Lopez distinguished; automatic reversal not warranted here because counsel had opportunity to act before execution |
Key Cases Cited
- United States v. Arrieta, 224 F.3d 1076 (9th Cir.) (describing § 1228(b) summary removal framework)
- Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) (right to counsel in immigration proceedings is a due-process right; prejudice requirement discussion)
- Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. 2007) (discussing prejudice in counsel-denial claims)
- Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) (held denial of counsel at merits hearing requires no prejudice showing)
- United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (Sixth Amendment denial-of-counsel precedent explaining automatic reversal in some contexts)
- United States v. Cisneros-Rodriguez, 813 F.3d 748 (9th Cir. 2015) (articulating plausibility standard for prejudice tied to U-visa claims)