Eladio GOMEZ-VELAZCO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
Nos. 14-71747, 14-73303
United States Court of Appeals, Ninth Circuit.
Filed January 10, 2018
879 F.3d 989
Argued and Submitted July 14, 2017, Portland, Oregon
CONCLUSION
The Adam Walsh Act applies to Plaintiff‘s I-130 petitions even though he filed them before it took effect. Applying that Act to pending petitions does not violate the Ex Post Facto Clause. Plaintiff‘s remaining claims are unreviewable. Plaintiff‘s statutory claims, although he characterizes them as collateral challenges, are actually challenges to action within the Secretary‘s “sole and unreviewable discretion,” and neither of Plaintiff‘s constitutional claims is colorable.
AFFIRMED.
Leslie McKay (argued) and Blair T. O‘Connor, Assistant Directors; Juria L. Jones, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice Washington, D.C.; for Respondent.
Before: Paul J. Watford and John B. Owens, Circuit Judges, and Gloria M. Navarro,* Chief District Judge.
Dissent by Judge Navarro
OPINION
WATFORD, Circuit Judge:
Under the Immigration and Nationality Act, the Department of Homeland Security
This case involves administrative removal under
I
Before discussing the facts of Gomez-Velazco‘s case, it will help to begin with a brief overview of how administrative removal works. Section 1228(b) authorizes DHS to order a limited class of non-citizens removed from the country without affording them a hearing before an immigration judge. To invoke
DHS commences administrative removal prоceedings by serving you with a “Notice of Intent to Issue a Final Administrative Removal Order.”
Upon service of the notice, you have ten days to file a response.
If you do not file a response, or if you concede that you are removable as charged, a DHS official known as the deciding officer will issue a “Final Administrative Removal Order,” which for ease of
If the deciding officer issues a removal order and you fear persecution or torture in the country to which you would be removed, the deciding officer must refer the case to an asylum officer to conduct a reasonable fear interview.
With that background in mind, we can turn to the facts of this case. DHS officers determined that Gomez-Velazco, then confined in county jail, appeared to be eligible for removal under
The officers attempted to take a formal sworn statement from Gomez-Velazco, but he refused to give one without his attorney present. The DHS officers knew Gomez-Velazco had retained an attorney because two months earlier the attorney had notified them of Gomez-Velazco‘s pending application for a U-visa. See
Immediately after Gomez-Velazco conceded that he was removable as charged, and before he had a chance to consult with his attorney, the deciding officer issued a removal order under
II
Gomez-Velazco argues that the DHS officers violatеd his right to counsel by pressuring him into conceding removability without the advice of counsel, even after he told them that he did not want to give a sworn statement until he could speak with his attorney. We have jurisdiction to review this constitutional claim under
As a general rule, an individual may obtain relief for a due process violation only if he shows that the violation caused him prejudice, meaning the violation potentially affected the outcome of the immigration proceeding. Hernandez-Gil, 476 F.3d at 808; Biwot, 403 F.3d at 1100. That rule rests on the view that the results of a proceeding should not be overturned if the outcome would have been the same even without the violation. Gomez-Velazco contends that the rule should be different when a due process violation is predicated on denial of the right to counsel. In that context, he urges, prejudice should be conclusively presumed and automatic reversal should follow.
There is somе support for the rule Gomez-Velazco advocates. In cases involving removal proceedings before an immigration judge, we have held that requiring an individual to proceed with the merits hearing without the assistance of counsel violates due process, absent a valid waiver of the right to counsel. See, e.g., Hernandez-Gil, 476 F.3d at 806-08; Tawadrus v. Ashcroft, 364 F.3d 1099, 1103-05 (9th Cir. 2004). And in Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), we carved out an exception to the general rule requiring a showing of prejudice. There we held that an individual who is wrongly denied the assistance of counsel at the merits hearing need not show prejudice in order to prevail. Id. at 1090. Prejudice in that context is conclusively presumed аnd automatic reversal is required.
The rule we adopted in Montes-Lopez is based in part on the practical difficulties one would face in trying to prove that the outcome of the merits hearing would have been different had counsel been able to assist. Id. at 1092. In most cases it would be next to impossible to determine what the evidentiary record would have looked like had counsel been present. The same practical difficulties explain why, in the Sixth Amendment context, a showing of prejudice is not required when the defendant is denied counsel (or wrongly denied counsel of choice) throughout the entire criminal proceeding. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-50 (2006). In that context, too, it would usually be impossible to determine what different decisions counsel (or counsel of choice) might have made, and what impact those decisions might have had on the outcome of the proceeding. Id. at 150-51. Given “the difficulty of assessing the effect of the error,” id. at 149 n.4, automatic reversal is required.
Even in the Sixth Amendment context, though, not all violations of the right to counsel are treated as structural errors mandating automatic reversal. If
In our view, the rationаle supporting the automatic reversal rule does not extend to the circumstances we confront in this case. Gomez-Velazco was not denied the assistance of counsel throughout the entirety of the administrative removal process, which commences with service of the Notice of Intent to Issue a Final Administrative Removal Order and ends with execution of the order. He lacked counsel at one discrete stage of the process—the point of his initial interaction with DHS officers. That was, to be sure, an important stage because he had to decide whether to contest the сharges against him and whether to request withholding of removal, decisions that turn on potentially complicated factual and legal issues which virtually all lay people need the assistance of counsel to analyze intelligently. See Koh, supra, 90 S. Cal. L. Rev. at 211-13.
Nonetheless, we think the effect of counsel‘s absence during the initial interaction with DHS officers can readily be assessed, at least in cases like this one, in which the individual does not waive the 14-day waiting period and is allowed to consult with counsel before the removal order is executed. In that scenario, we are not forced to speculate about the different decisions counsel might have made had she been present, for counsel can act on those decisions after issuance of the removal order and remedy any damage done by her client‘s un-counseled admissions or waivers.
Take the two most common admissions or waivers that occur. If the individual admits the allegations in the notice and concedes removability, as Gomez-Velazco did here, the lawyer can still file a response asserting any valid grounds for contesting removability within the ten-day period permitted under
In sum, we see no reason to conclusively presume prejudice when an individu
Having concluded that Gomez-Velazco must show prejudice to prevail, we turn to whether he has made that showing here. As just noted, he might have been able to show prejudice had he attempted to contest the facts rendering him removable yet been foreclosed from doing so by virtue of his earlier un-counseled admissions. But he has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he cannot contend that his un-counseled admissions cost him the chance to raise plausiblе grounds for contesting removal. Nor can he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal, since he was ultimately given a reasonable fear interview and allowed to make the case that he should be granted withholding of removal.
Gomez-Velazco asserts only one other theory of prejudice, which relates to the recent denial of his U-visa application. He contends that if counsel had been present during his initial interaction with DHS officers, his attorney could have requested a stay of the proceedings and thereby prevented the removаl order from being issued in the first place. He argues that he suffered prejudice because the very issuance of the removal order negatively influenced the agency‘s consideration of his U-visa application and contributed to the decision to deny it.
There are at least two flaws in this argument. The first is that Gomez-Velazco provides nothing to support his assertion that the mere issuance of a removal order negatively affects the agency‘s consideration of a U-visa application. We have found nothing in DHS regulations or policy guidance to suggest that is the case, and we know that issuance of a removal order does not preclude an individual from obtaining a U-visa. The agency‘s regulations specifically contemplate the granting of a U-visa application even after issuance of a removal order. They provide that upon approval of the application the removal order “will be deemed canceled by operation of law” as of the date of approval.
The second flaw in Gomez-Velazco‘s argument is that the agency‘s written explanation for why it denied his U-visa application does not rely on issuance of the removаl order as a negative factor. To be eligible for a U-visa, Gomez-Velazco needed to obtain a waiver of inadmissibility, and to obtain that he needed to persuade the agency that “it is in the public or national interest” to allow him to remain in the United States.
***
In the circumstances of this case, Gomez-Velazco was required to show prejudice in order to prevail on his due process claim. Although he may have been improperly denied the right to counsel during his initial interaction with DHS officers, he has made no showing that the denial of that right caused him any prejudice.
PETITIONS FOR REVIEW DENIED.
NAVARRO, Chief District Judge, dissenting:
I would grant the Petition for Review and vacate the Final Administrative Removal Order (“FARO“) issued on June 12, 2014.
I would first make the distinct finding—as opposed to the majority‘s assumption—that Gomez-Velazco‘s right to counsel was violated. “Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming frоm the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citing Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985)). While “[t]he right to counsel in immigration proceedings is rooted in the Due Process Clause,” Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005), the right to counsel in expedited removal proceedings is also secured by statute.
Moreover, expedited removal proceedings under
Indeed, this Circuit has consistently emphasized the critical role of counsel in deportation proceedings. See, e.g., Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988) (“The importance of counsel . . . can neither be overemphasized nor ignored.“); United States v. Cerda-Pena, 799 F.2d 1374, 1377 n.3 (9th Cir. 1986) (referring to “an outright refusal to allow an alien the opportunity to obtain representation” as “an egregious violation of due process“). We have characterized the alien‘s right to counsel of choice as “funda
Here, the record clearly demonstrates that Gomez-Velazco asserted that he had counsel and wanted his counsel present. First, in Form I-213, ICE Officer Stewart explains that during the FARO proceedings, Gomez-Velazco “was unwilling to provide a sworn statement without an attorney present.” Second, on the “Record of Sworn Statement” dated June 12, 2014, the first question states, “Are you willing to answer my questions?” to which Gomez-Velazco answered: “I prefer not to until I talk to my attorney.” DHS nevertheless proceeded with the expedited removal рroceedings without first affording Gomez-Velazco the opportunity to notify and speak with his counsel as he requested. In doing so, DHS directly disregarded Gomez-Velazco‘s ability to exercise this fundamental right.
Having found that Gomez-Velazco‘s right to counsel was violated, I would then find that under Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), no prejudice is required to vacate the FARO. The Montes-Lopez court held “an alien who shows that he has been denied the statutory right to be represented by counsel in an immigration proceeding need not also show that he was prejudiced by the absence of the attorney.” Id. at 1093-94. In support, the court stated that “the absence of counsel can change an alien‘s strategic decisiоns, prevent him or her from making potentially-meritorious legal arguments, and limit the evidence the alien is able to include in the record.” Id. at 1092.
The majority here distinguishes Montes-Lopez by a distinction without a difference. First, the majority regards Montes-Lopez as “an exception to the general rule requiring a showing of prejudice;” however, prior to Montes-Lopez, there was no general rule that required a showing of prejudice—a fact that Montes-Lopez, Hernandez-Gil, and Biwot, the cases the majority relies so heavily on, all specifically identify. Id. at 1090 (“We have never decided, however, whether prejudice is an element of a claim that counsel has been denied in an immigration proceeding.“); Hernandez-Gil, 476 F.3d at 808 (“Because wе determine that Hernandez-Gil has shown that he was prejudiced by the denial of his statutory right to counsel ‘we again leave unanswered the question whether a petitioner must show prejudice when he has been denied the right to counsel in removal proceedings.‘“) (citing Biwot, 403 F.3d at 1100).
Second, the right to counsel is substantively the same under both the
Notably, the Montes-Lopez court purposefully distinguished pure immigration proceedings from collateral attacks on a removal order in a
Deprivation of counsel is per se prejudicial. See Cerda-Pena, 799 F.2d at 1377 n.3 (“[A]n outright refusal to allow an alien the opportunity to obtain representation may be such an egregious violation of due process so as not to require any further showing of prejudice“); Garcia-Guzman v. Reno, 65 F.Supp.2d 1077, 1087 (N.D. Cal. 1999) (explaining that ”Cerda-Pena therefore suggests that if the violation of the right to counsel is sufficiently egregious—i.e., a clear denial of representation or outright refusal to permit an alien to obtain representation—prejudice needn‘t be shown.“).
The majority attempts to downplay the inherent prejudice of this situаtion by comparing it to discrete stages of a criminal proceeding, such as a preliminary hearing, a court-ordered psychiatric examination, post-indictment interactions with undercover police officers, and pre-trial line-ups. However, none of these situations are comparable to the instant case. Here, Gomez-Velazco was in custody by DHS when he asked for an attorney—a situation that, in a non-immigration case, would normally mandate an attorney as soon as a defendant requests one.
Furthermore, in drawing comparisons to these Sixth Amendment situations, the majority attemрts to illustrate how the standard in those cases are only “subject to harmless error review rather than an automatic reversal rule,” and the majority concludes that because this is a similar discrete stage, prejudice is required rather than presumed. However, in arguing this, the majority once again completely disregards Montes-Lopez. There, the court held that “[w]hen this court concludes that an agency has not correctly applied controlling law, it must typically remand, even if we think the error was likely harmless.” Montes-Lopez, 694 F.3d at 1092 (citing INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002)). Importantly, Montes-Lopez adopts the reasoning of the Second Circuit, which “declined to add a prejudice requirement to this rule beсause [the court] reasoned that automatic reversal upon violation of such a regulation would encourage agency compliance with its own rules and serve the interests of judicial economy.” Id. at 1091 (citing Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991)). We must recognize that in mandating automatic reversal, not only will we continue to protect this right to counsel, but also we will better hold these agencies accountable in their actions and conduct by enforcing their own regulations more strictly upon them. In holding that this situation is akin to a harmless error review, the majority disregards Montes-Lopez‘s holding and downplays the right to counsel.
The majority attempts to distinguish Montes-Lopez by stating that it is different than the instant case because it is “based in part on thе practical difficulties
To carve out such a nuanced distinction undermines the fundamental nature of the right to counsel. See, e.g., Hernandez-Gil, 476 F.3d at 806 (“The high stakes of a removal proceeding and the maze of immigration rules аnd regulations make evident the necessity of the right to counsel.“); Montes-Lopez, 694 F.3d at 1091 (“No showing of prejudice is required, however, when a rule is ‘intended primarily to confer important procedural benefits upon individuals’ or ‘when alleged regulatory violations implicate fundamental statutory or constitutional rights.‘“) (quoting Leslie v. Attorney Gen., 611 F.3d 171 (3d Cir. 2010)). Likewise, to permit an agency to continue to ignore its own regulations undermines the fundamental nature of the right to counsel. Finally, to ignore established precedent in favor of the majority‘s new exception undermines the fundamental nature of the right to counsel. Accordingly, I would vacate the FARO because Gomеz-Velazco established a right to counsel due process violation and therefore need not show prejudice.
Even if prejudice were required, however, it should be assessed under the “plausibility” standard set forth by United States v. Cisneros-Rodriguez, 813 F.3d 748, 760 (9th Cir. 2015): “[W]hether the defendant had identified a form of relief it was plausible he would have obtained absent the due process violation.” In Cisneros-Rodriguez, the defendant argued that “had she obtained counsel [during her predicate
Here, the record demonstrates that Officer Stewart—the arresting ICE officer who provided the evidence to Deciding Officer Elizabeth C. Godfrey for the issuance of the FARO—knew that Gomez-Velazco was represented by counsel and that Gomez-Velazco had a pending U-Visa application. When Officer Stewart nevertheless chose to arrest Gomez-Velazco and continue with the
Ultimately, even without a finding of prejudice, the majority‘s decision to deny Gomez-Velazco‘s petition for review dilutes the fundamental right to counsel and completely ignores indistinguishable precedent. See Hernandez v. Holder, 545 Fed. Appx. 710, 713 (9th Cir. 2013) (Ikuta, J., concurring) (unpublished opinion) (stating disagreement with Montes-Lopez while still acknowledging that the Ninth Circuit is bound by its decision). Accordingly, I must respectfully dissent.