Mendoza-Garcia v. Barr, 918 F.3d 498

Mendoza-Garcia, a Guatemalan who arrived in the U.S. in 2004, applied for asylum/withholding; proceedings were delayed and his merits hearing was set for Nov. 2017.
His retained counsel warned of unpaid fees ~6 weeks before the merits hearing; counsel filed a motion to withdraw one week before the hearing and the IJ granted it on the hearing day.
Mendoza-Garcia repeatedly requested more time to obtain new counsel and expressed concern about proceeding pro se; the IJ denied a continuance but said he would assist in developing the record and then conducted the merits hearing.
The hearing proceeded through two interpreters (English→Spanish→Aguacateco) and produced a brief transcript in which Mendoza-Garcia testified inconsistently about past harm and stated a generalized fear of returning to Guatemala without identifying specific threats.
The IJ denied relief; the BIA affirmed, finding (1) the IJ did not abuse discretion in denying a continuance given notice of counsel’s withdrawal, and (2) any failure to develop the record was not prejudicial because Mendoza-Garcia’s testimony was unambiguous that he had not been threatened and could not identify specific fear of future harm.
Mendoza-Garcia petitioned for review to the Sixth Circuit, which denied the petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of continuance after counsel withdrew	IJ erred by denying a reasonable continuance; Mendoza never validly waived right to counsel and sought time to retain new counsel	IJ reasonably denied continuance because counsel had warned ~6 weeks earlier; Mendoza had notice and court assistance would compensate	Denial was not abuse of discretion; six weeks notice was a reasonable period to obtain counsel
Waiver of counsel	Mendoza’s statements were not a knowing, voluntary waiver; he repeatedly asked for time	IJ treated Mendoza’s later concession as waiver and proceeded	Court found waiver unclear; because Mendoza had earlier notice, denial still not abusive
Failure to develop the record for pro se testimony	IJ failed to probe ambiguous answers, failed to follow up through layered interpretation, which prejudiced the defense	IJ asked open-ended questions and gave opportunity to speak; testimony was unambiguous that no past threats and no specific fear	Even if record development was imperfect, Mendoza failed to show prejudice or that clearer questioning would have produced a different outcome
Prejudice requirement for procedural errors	Absence of counsel is per se prejudicial	Government: must show the procedural error could have produced a different outcome	Court applied Sixth Circuit prejudice standard: petitioner must show claims could have supported a different outcome; Mendoza did not meet it

Yamataya v. Fisher, 189 U.S. 86 (U.S. 1903) (due process applies to deportation; opportunity to be heard required)
Bridges v. Wixon, 326 U.S. 135 (U.S. 1945) (removal implicates liberty interests and requires essential fairness)
Al-Saka v. Sessions, 904 F.3d 427 (6th Cir. 2018) (no Sixth Amendment right to appointed counsel in immigration; due process requires fairness and the right to retain counsel)
Al Khouri v. Ashcroft, 362 F.3d 461 (8th Cir. 2004) (IJ has duty to develop the record for pro se respondents)
Lashley v. Sec'y of Health & Human Servs., 708 F.2d 1048 (6th Cir. 1983) (administrative judges must scrupulously probe and elicit favorable and unfavorable facts where claimants lack counsel)
Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006) (denial of continuance reviewed for abuse of discretion; standards for reversal)
Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) (prejudice standard: petitioner must show claims could have supported a different outcome)
Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. 2007) (denial of brief continuance to obtain counsel can violate right to counsel in immigration proceedings)