Montes-Lopez v. Holder
2012 U.S. App. LEXIS 19554
| 9th Cir. | 2012Background
- Montes-Lopez, a native and citizen of El Salvador, entered the United States in 2002 and faced removal proceedings.
- Petitioner’s retained attorney was suspended; the IJ learned of this up to eleven days before the merits hearing.
- Petitioner was compelled to proceed to a merits hearing without representation, after the IJ denied a continuance.
- The IJ conducted a credibility finding and denied asylum, withholding, and CAT protections; the BIA affirmed.
- On appeal, the Ninth Circuit previously remanded for procedural irregularities; on remand the BIA again affirmed.
- Petitioner contends the denial of counsel violated 8 U.S.C. § 1362 and related regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the IJ’s denial of a continuance violate the statutory right to counsel? | Montes-Lopez argues right to counsel was violated. | Holder contends discretion to deny continuances allows no violation. | Yes; denial violated statutory right to counsel. |
| Is prejudice required to prevail on a denial-of-counsel claim in immigration proceedings? | Montes-Lopez contends no prejudice showing required. | Holder contends prejudice must be shown. | Prejudice not required. |
| Should the case be remanded for proper counsel representation where counsel was denied? | Montes-Lopez asserts remand to ensure counsel is provided remains appropriate. | Holder maintains standard review without prejudice suffices. | Remand granted for further proceedings consistent with opinion. |
Key Cases Cited
- Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) (agency rules for right to counsel not requiring prejudice for relief)
- Leslie v. Attorney Gen., 611 F.3d 171 (3d Cir. 2010) (no prejudice required where regulatory safeguards are procedural rights)
- Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975) (right to counsel in immigration proceedings not subject to harmless error)
- Baltazar-Alcazar v. INS, 386 F.3d 940 (9th Cir. 2004) (denial of counsel implicates fundamental rights; prejudice not always required)
- Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. 2007) (due process and right to counsel in immigration proceedings)
- Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074 (9th Cir. 2007) (adverse credibility where lack of counsel; consideration of lack of contact)
- Montes-Lopes v. Gonzales, 486 F.3d 1163 (9th Cir. 2007) (remand when IJ proceedings suffer from procedural irregularities)