Hernandez Lara v. Barr, 962 F.3d 45

Background

Ana Ruth Hernandez Lara, a Salvadoran national who entered the U.S. without inspection in 2013, was detained throughout removal proceedings and represented by a limited-appearance bond attorney only.
After her bond attorney stopped representing her for removal proceedings (around Oct. 29, 2018), Hernandez had about fourteen business days before the merits hearing to secure new counsel while also struggling to complete an I-589 in English.
Hernandez repeatedly requested more time to obtain counsel; a new attorney agreed to represent her after the November 8 hearing but had not formally entered an appearance or received the file by the November 16 merits date.
The IJ denied Hernandez’s final continuance request, repeatedly told her she must represent herself, proceeded with the merits hearing pro se, and denied asylum (as untimely) and withholding/CAT relief on nexus and government-protection grounds.
The BIA affirmed, applying a general "good cause" continuance standard and finding no prejudice or due-process violation; Hernandez timely petitioned for review to the First Circuit.
The First Circuit held the IJ denied Hernandez’s statutory right to retain counsel, vacated the BIA order, and remanded for further proceedings; the court reviewed the right-to-counsel claim de novo and found prejudice likely.

Issues

Issue	Hernandez's Argument	Barr (Gov't) Argument	Held
Did the IJ deny Hernandez's statutory right to counsel by refusing a continuance to permit retained counsel to appear?	IJ cut off a detainee with language barriers who had diligently sought counsel and had just retained an attorney—denial thus violated 8 U.S.C. §§ 1362, 1229a(b)(4)(A).	IJ reasonably denied further delay after multiple continuances and EOIR expectations to complete detained cases expeditiously; Hernandez had been given time.	Yes. The IJ failed to afford a "reasonable and realistic" period to secure counsel; denial violated the statutory right to counsel and warranted vacatur and remand.
What standard of review applies to a claim that the statutory right to counsel was denied?	De novo review is appropriate for the legal question whether the statutory right to counsel was denied.	Argued for deferential review of continuance denials in general (abuse of discretion).	De novo review applied to the legal question of denial of the statutory right to counsel.
Must a petitioner show prejudice from denial of the statutory right to counsel?	Argued prejudice need not be shown (or, alternatively, that prejudice is present here).	Government did not press absence-of-prejudice below; BIA required a showing.	The court found circuits split but concluded prejudice existed here; the panel remanded on statutory-right grounds (concurring opinion urged adopting no-prejudice rule).
Did the BIA err by applying a general "good cause" continuance standard instead of the In re C-B- rule for counsel-seeking continuances?	BIA should have applied the In re C-B- standard obligating IJs to grant a reasonable and realistic period to obtain counsel.	BIA applied its precedent and concluded Hernandez failed to show good cause or prejudice.	BIA’s reliance on the general good-cause standard was incorrect for adjudicating a statutory right-to-counsel continuance; court nonetheless evaluated the statutory-right claim and remanded.

Key Cases Cited

Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) (denial of statutory right to counsel does not require a showing of prejudice)
Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975) (denial of counsel taints proceedings from their roots)
Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010) (agency noncompliance with procedural rules can be reversible without prejudice)
Cheung v. INS, 418 F.2d 460 (D.C. Cir. 1969) (denial of counsel inherently prejudicial)
Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) (refusing to require prejudice in counsel-denial context)
Toribio-Chavez v. Holder, 611 F.3d 57 (1st Cir. 2010) (due-process claims in immigration context reviewed de novo)
Mendoza-Garcia v. Barr, 918 F.3d 498 (6th Cir. 2019) (timing for reasonable period to find counsel begins when petitioner learns retained counsel will no longer represent them)
United States v. Cronic, 466 U.S. 648 (1984) (absent counsel can so fatally affect proceedings that prejudice may be presumed)
Strickland v. Washington, 466 U.S. 668 (1984) (prejudice inquiry for ineffective-assistance claims)