Lead Opinion
Dissent by Judge Navarro
Under the Immigration and Nationality Act, the Department of Homeland Security
This case involves administrative removal under 8 U.S.C. § 1228(b). A DHS officer ordered Eladio Gomez-Velazco, a native and citizen of Mexico, removed from the United States. Gomez-Velazco, contends that his due process rights were violated because he did not have counsel present at the outset of the removal process. We will assume that а violation occurred. The question we address is whether Gomez-Velazco must show that he was prejudiced by the yiolation. We conclude that he must and that he has not done so. We therefore deny his petitions for review.
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 § 1228(b), DHS must establish that the individual to be removed: (1) is not a citizen of the United States; (2). has not been lawfully admitted for permanent residence; аnd (3) has been convicted of an aggravated felony, 8 U.S.C. § 1228(b)(1), (2); 8 C.F.R. § 238.1(b)(1). Proceedings under § 1228(b) are summary in nature because if DHS establishes those three predicates, the individual is conclusively presumed removable and categorically ineligible for most forms of discretionary relief from removal. 8 XJ.S.C. § 1228(b)(5), (c); see United States v. Arrieta,
DHS commences administrative removal proceedings by serving you with a “Notice of Intent to Issue a Final Administrative Removal Order.” 8 C.F.R. § 238.1(b)(2). The notice must allege each of the three predicates necessary to trigger eligibility for administrative removal. § 238.1(b)(1), (b)(2)(i). The notice must-also advise you of certain rights, among them the right to be represented by counsel of your choosing at no expense to the government, the right to rebut the charges against you, and the right to request withholding of removal if you fear persecution or torture in the country to which you would be removed. § 238.1(b)(2)®.
Upon service of the notice, you have ten days to file a response. § 238.1(c)(1). In the response, you can (among other things) attempt to rebut the charges, request an opportunity to review the government’s evidence, and request withholding of removal. Alternatively, you can waive the right to pursue any of these options and concede that you are removable as chargеd.
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 ease to an asylum officer to conduct a reasonable fear interview. 8 C.F.R. § 238.1(f)(3). If the asylum officer determines that your fear of persecution or tprture appears reasonable, the case is transferred to an immigration judge for a hearing to determine whether you are entitled to withholding of removal. §j 208.31(e). If the asylum officer deter-rhines that you do not have a reasonable fear of persecution or torture, you can s|eek review of that determination by ah immigration judge. § 208.31(g). But if the adverse reasonable fear determination is ultimately upheld, the removal order may then be executed.
! With that background in mind, we can turn to the facts of this case. DHS officers determined that Gomez-Velazeo, then confined in county jail, appeared to be eligible for removal under § 1228(b). Shortly after Gomez-Velazeo was released, DHS officers took him into custody pursuant to a war-jjant issued by the agency. The officers served him with a Notice of Intent to Issue a Final Administrative Removal Order. Í'he notice alleged that Gomez-Velazeo is . ot a citizen of the United States; that he ¿as not been lawfully admitted for permanent residence; and that he has been convicted of an aggravated felony, namely, second-degree rape under Oregon law. The notice advised Gomez-Velazeo of his right to contest the chаrges and his right to be represented by counsel óf his choosing at no expense to the government.
The officers attempted to take a formal sworn statement from Gomez-Velazeo, but he refused to give one without his attorney present. The DHS officers knew Gomez-Velazeo had retained an attorney because two months earlier the attorney had notified them of Gomez-Velazco’s pending application for a U-visa. See 8 U.S.C. § 1101(a)(15)(U). Although Gomez-Velazeo refused to provide a sworn statement, he nonetheless admitted the allegations in the notice and conceded that he was removable as charged. He did not claim fear of persecution or torture- in Mexico, but he declined to waive the 14-day waiting period for execution of the removal order. He made each of these decisions without the benefit of counsel’s advice because his attorney was not present. '
Immediately after Gomez-Velazeo 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 § 1228(b). Because Gomez-Velazeo had not waived the 14-day waiting period, he was not removed from the country, and before the waiting period expired his attorney filed a petition for review in this court challenging the validity of the removal order. We issued a- stay of removal pending our resolution of the petition, which remains in effect.
II
Gomez-Velazeo argues that the DHS officers violated 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 8 U.S.C. § 1252(a)(2)(D). As mentioned at the outset, we will assume without deciding that the officers’ conduct violated Gomez-Velazco’s light to counsel.
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,
There is some 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,
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 loоked 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,
Even in the Sixth Amendment contеxt, though, not all violations of the right to counsel are treated as structural errors mandating automatic reversal. If
jin our view, the rationale 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 cojmmences with service of the Notice of Injtent to Issue a Final Administrative Re-mbval 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 whs, to be sure, an important stage because he had to decide whether to contest thje charges 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,
Nonetheless, we think the effect of coun--sel’s absence during thе 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 allеgations 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 8. C.F.R. § 238.1(c)(1). We doubt DHS would refuse to consider the response on the theory that the individual’s earlier -un-counseled concession of removability is somehow irrevocable. But even if the agency took that dubious position, a reviewing court would be able to assess whether the grounds asserted raise a plausible basis for contesting removability, and thus could determine whether counsel’s absence during the initial interaction with DHS officers caused prejudice. And if the. individual waives -the right to request withholding of removal despite fearing persecution or torture in the country to which he would be removed, the lawyer can still request a reasonable fear determination, since that does not occur until after issuance of the removal order in any event. § 238.1(f)(3).
In sum, we see no reason to conclusively presume prejudice when an individual
Having concluded that Gomez-Ve-lazco 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 plausible 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 removal 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 negativеly 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. 8 C.F.R. § 214.14(c)(5)(i); see United Stаtes v. Cisneros-Rodriguez,
The second flaw in Gomez-Velazeo’s argument is that the agency’s written explanation for why it denied his U-visa application does not rely on issuance of the removal 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. 8 C.F.R. § 212.17(b)(1). The agency explained that it declined to grant a waiver of inadmissibility because his criminal record indicated that he posed a risk to public safety. In support of that conclusion, the agency cited Gomez-Velazco’s conviction for second-degree rape, an especially serious offense' because the victim was 13 years old. The agency also cited his multiple violations of the probationary conditions imposed for that conviction and his multiple arrests for other offenses. Given this record of criminal wrongdoing, the agency
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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 hps made no showing that the denial of that right caused him any prejudice.
PETITIONS FOR REVIEW DENIED.
Dissenting Opinion
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 tо counsel was violated. “Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings.” Tawadrus v. Ashcroft,
Moreover, expedited' removal proceedings under § 1228 require “conformity with section 1229a” and the “privilege of being represented” is further codified in that section as well. See 8 U.S.C. § 1229a(b)(4)(A). This right to be represented at nо cost to the government is also listed on the “Notice of Intent to Issue a FARO” under “Your Rights and Responsibilities.” IP the right to counsel under § 1228 is' only for the noncitizen to be advised of the right to have counsel; with no practical effect, then it would be no right to counsel at all. See Rios-Berrios,
Indeed, this Circuit has consistently emphasized the critical role of counsel in deportation proceedings. See, e.g., Reyes-Palacios v. I.N.S.,
Here, the record clearly demonstrates that Gomez-Velazco asserted that he had counsel and wanted his counsel present. First, in Form 1-213, 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 Statemеnt” 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 proceedings 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,
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-Lоpez, 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 v. Gonzales,
Second, the right to counsel is substantively the same under both the § 1228 expedited removal proceeding before a DHS deciding officer, as used here, and the § 1229 proceeding before the immigration judge, as in Montes-Lopez.
Notably, the Montes-Lopez court purposefully distinguished pure immigration proсeedings from collateral attacks on a removal order in a § 1326 illegal reentry criminal case, the latter of which requires prejudice specifically because of “the limitations
(Deprivation of counsel is per se prejudicial, See Cerda-Pena,
The majority attempts to downplay the inherent prejudice of this situation by comparing it to discrete stages of a criminal proceeding, such as a preliminary hearing, a
Furthermore, in drawing comparisons to these Sixth Amendment situations, the majority attempts 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 аn agency has not' correctly applied controlling law, it must typically -remand, even if we think the error was likely harmless.” Montes-Lopez,
The majority attempts to distinguish Montes-Lopez by stating that it is different than the instant case because it is “based in part on the practical difficulties
To carve out such a nuanced distinction undermines the fundamental nature of the right to counsel. See, e.g., Hernandez-Gil,
Even if prejudice were, required, however, it should be assessed under the “plausibility” standard set forth by United States v. Cisneros-Rodriguez,
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 § 1228 proceeding without allowing him to consult with his attorney, Gomez-Velazco was prejudiced more than the defendant in Cisneros-Rodriguez because he had a plausible and pending U-Visa application. As such, I cannot agreе with the majority that Gomez-Velazco failed to demonstrate sufficient prejudice under Cisneros-Rodriguez.
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,
Notes
. The Government decides under which process to pursue deportation by issuing either a Notice of Intent to Issue a FARO under § 1228 or Notice to Appear under § 1229.