545 F. App'x 710
9th Cir.2013Background
- Gomez Hernandez, a Guatemalan national, petitioned for asylum, withholding of removal, and CAT relief, which the BIA denied.
- Two weeks before the scheduled asylum hearing, the IJ relieved Gomez’s attorney, and Gomez received notice to appear with or without counsel, with no continuance.
- Gomez appeared without counsel, and the IJ did not inquire into his desire for representation or obtain a knowing, voluntary waiver.
- Gomez had little time to obtain new counsel, who would need to be prepared to proceed on the appointed date.
- The Ninth Circuit granted relief on due process grounds, agreeing that the denial of the statutory right to counsel violated due process under 8 U.S.C. § 1362.
- The concurrence questions Montes-Lopez’s per se reversal rule and argues for harmless-error analysis in immigration proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of the statutory right to counsel is per se reversible error | Montes-Lopez applies per se reversal | Harmless-error review governs | Montes-Lopez wrongly treats as structural error |
| Whether due-process review requires prejudice demonstration in this context | Prejudice not required under Montes-Lopez | Prejudice required by case law | Harmless-error analysis applies to immigration denials |
| Whether the Ninth Circuit should revisit Montes-Lopez en banc | Montes-Lopez misapplies constitutional principles | Respect existing circuit precedent | Court should revisit Montes-Lopez en banc |
Key Cases Cited
- Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) (per se reversible error for denial of counsel in immigration)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (prejudice required for due process claims)
- Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004) (requires prejudice showing for due process in immigration)
- Castro-O’Ryan v. U.S. Dep’t of Immigration & Naturalization, 847 F.2d 1307 (9th Cir. 1988) (due process violations reviewed for prejudice)
- Shinseki v. Sanders, 556 U.S. 396 (Supreme Court 2009) (rejects mandatory presumptions; case-specific judgment in agency errors)
- Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005) (prejudice required to grant relief for due-process violations)
- Vidal v. Harris, 637 F.2d 710 (9th Cir. 1981) (prejudice or unfairness required from absence of counsel)
- Sanchez-Cruz v. INS, 255 F.3d 775 (9th Cir. 2001) (prejudice required to obtain relief from due process violation)
- Rios-Berrios v. I.N.S., 776 F.2d 859 (9th Cir. 1985) (due process and representation standards in immigration)