Julio Donaldo Ponce-Leiva v. John D. Ashcroft, Attorney General of the United States

community which could accommo- a gathering. such date Julio Donaldo PONCE- LEIVA, Petitioner Foster, Annotation, C.T. Use Public Religious Purposes Premises School Time, During Nonschool 79 A.L.R.2d (1961). However, ASHCROFT, Attorney John D. such use General subject States, critical condition: Respondent. the United public “utilization of the as schoolhouse No. 01-2900. services, meeting place religious out- time, permitted by side school where United of Appeals, States Court authorities, generally school was allowed Third Circuit. pursuant to common consent the inhab- region.” (emphasis itants add- Sept. Argued 2002. ed) Here, the inhabitants of the State 5, 2003. June New York have for decades withheld Indeed, policy consent.14 the fact that the here question has been affirmative

policy of the State of New York for almost quarters century

three of a also militates

in favor its constitutionality. See Walz Comm’n,

v. Tax 397 U.S. 90 S.Ct. (‘Tet (1970) 25 L.Ed.2d 697 an un- practice

broken of according tax] ex- [a emption openly to churches affir- action,

mative covertly state inaction, something

state is not light- to be added)).

ly (emphasis cast aside.”

rv.

I believe Plaintiffs’ claims are judi-

barred estoppel collateral and res

cata, as well as stare I decisis. therefore

disagree my colleagues with that Plaintiffs

have made a clear showing or substantial

of a likelihood of success on the merits.

Accordingly, prelimi- would vacate the

nary injunction and remand the to the case

District Court with instructions to enter a

judgment dismissing the action preju-

dice. Moreover, availability present-day pioneer days. meeting places greater is much than it was in jurisdiction

We have to review the BIA’s 1252(b)(2). § final order. See U.S.C. deny willWe petition review.

I. 17, 1997, April Ponce-Leiva, On a native Guatemala, person and citizen of received al service of a Appear. Notice to The Appear Notice to stated that because Morley Steven A. (Argued), Bagia & had, earlier, six years Ponee-Leiva en Morley, Philadelphia, for Petitioner. tered the United being States without in McCallum, Jr., spected immigration Robert D. or admitted Assistant At- officer, General, Molina, he torney H. was Ernesto Senior violation Counsel, 212(a)(6)(A)(i) § Litigation Regina Byrd (Argued), Immigration (INA). Lindemann, P. Naturalization Act Attorney, Michael It Attor- informed Jentzer, ney, Lyle Attorney, hearing D. of Ponee-Leiva Office scheduled Division, 9, September for Immigration Litigation, 1997. Civil Administrative (A.R.) Record at Department, United Justice 119-20. State Wash- ington, Respondent. for 9, September At 1997 hearing, appeared Ponee-Leiva without counsel. SLOVITER, RENDELL, Before immigration judge The him informed of his MeCLURE,* Judges Circuit District right to counsel and continued hearing Judge. 4, 1997, until November giving Ponee- opportunity Leiva an representa- to obtain OF THE OPINION COURT tion. MeCLURE, Judge. District 4, 1997, On November ap a petition This for of a review final peared hearing, at the and this time he order of removal issued the Board accompanied by Through (BIA). Immigration Appeals The BIA af admitted removabili immigration firmed judge’s decision ty pursue that he asylum. stated that Julio Donaldo Ponce-Leiva was re scheduled the mer ineligible asylum. movable and for Ponce- 1, 1998. July its presents questions. Leiva us with two First, immigration 29, 1998, judge’s did days decision On June two before the asylum hearing to hold an after Ponce- merits court re- suddenly attorney Leiva’s to ap refused ceived a letter from counsel dated June pear constitute a denial of requesting Ponce-Leiva’s According a continuance. Second, letter, to counsel? did the immi Counsel would be unavailable gration attorney’s appear failure to at the for the merits because he planned timely letter, request for to be Diego. make San continuance constitute ineffective assis offered hearing. alternative dates tance of counsel? Id. 109.

* McClure, Jr., Hon. F. Judge, Pennsylvania, sitting by designa- James Senior District of United States District Court for the Middle tion. (4) manner; 29, 1998, sponsibilities in June day, the same

On Santos, I & N according contin- to Matter judge denied counsel’s (BIA 1984), 1984 WL 48592 gave The order Dec. request. uance accepted reason, “you necessarily preju- stating that of counsel is not absence 1997.” date on November error. dicial judge then commented hearing was merits July On Ponce-Leiva’s denying on his reasons for held as scheduled. application asylum: asylum: grounds for raised two application acknowledged respondent freely (1) support his joba in order he needed and not a migrant he is an economic that (2) to Gua if he returned family; and He his “refugee.” stated temala; because his would homeless he be application. interroga- When the Court Id. at 104. family support not him. could any him to if there was other ted see proceed would explaining After that he case, Again, aspect his found none. judge immigration the with the honestly stated that he respondent the his bases for questioned Ponce-Leiva on United in order to came to the States asylum. support family. himself and his The an oral order and Through respondent a written the clearly facts show decision, judge announced immigration past, the or that persecuted the was never request for con- deny the his decisions possibility he faces a reasonable thereof deny appli- tinuance and to protected by any factor account Id. at asylum. cation for 36-39. the [INA]. upon immigration grant- judge judge A.R. at The immigration

The elaborated departure. voluntary continuance re- ed denying reason for the his continuing the hear- quest. He stated appealed to the BIA. his Ponce-Leiva in Ponce-Leiva’s best interest. ing was not claimed that appeal, notice Ponce-Leiva has while counsel been col- He noted that continuance, the denying request the Ponce-Leiva, failed to lecting he fees immigration judge abused discretion. how to provide with advice on BIA, 26. In his the Ponce- Id. at brief to stay country. in the (1) argued of coun- Leiva the absence agreed although judge stated his due sel violated his counsel and appear at the hear- eight months earlier (2) process provided rights; and Ponce-Leiva at last ing, he abandoned counsel, assistance of which vio- ineffective concluded that without judge minute. The process at 9-12. rights. lated his due any evidence that counsel was benefit explicit The brief contained reference Ponce-Leiva, was better off deny decision to hearing. if went forward request. the continuance Next, more reasons for gave BIA September af- On (1) request: denying the continuance immigration judge’s decision firmed the time set aside taxpayers paid for the court appeal. and dismissed the case; (2) expecta- for Ponce-Leiva’s relating claim process As for the if upset cases tions of the INS would be BIA the absence of stated orderly not such as Ponce-Leiva’s could be following: (3) immigra- processed; ability (1) Ponce-Leiva could not show its Because manage court to docket prejudiced by that he absence of impeded attorneys if could shirk their re- violated, was no due viola- there the BIA did not con- tion; sider immigration judge’s denial of the Rather, request. continuance according event, (2) any we have determined “[I]n government, the BIA referred to the absence of counsel the continuance request only not our that the deci- does alter conclusion the context of whether Judge Immigration sion is correct.” judge abused his discretion in denying government states that the “decision” request. government that, contends to in this the decision referred sentence therefore, Ponce-Leiva’s current link be- deny request. continuance counsel’s tween the continuance and due Government’s Brief at 11. process was not found in the BIA’s final (3) procedural “We find no or er- legal (which from) order appealed is the order indicating that ei- [Ponce-Leiva] rors and thus properly before this court. deprived of a ther full and fair Second, the government states that Ponce- opportunity apply denied the for all Leiva failed his appeal to the BIA to available forms of relief from removal.” equate the denial of the continuance re- Id. at 3. quest with the denial of process his due assistance, As for BIA ineffective rights. It argues that accordingly, Ponce- claim, explaining rejected that that Ponce- claim, Leiva failed to exhaust this which as proceed- Leiva could neither show that his judicial result is now barred review. ings fundamentally were unfair nor show As for the claim for ineffective assis- prejudiced by perfor- that he was counsel’s tance of government argues mance. Id. is because it raised here in a different than way fashion it was raised before II. BIA, may we not review it. gov- may Before Ponce- we decide whether points to ernment the fact that while the violated, Leiva’s we must first ineffective-assistance claim before the BIA properly determine whether the claims are related whether the government before the court. The dedi- process denied Ponce-Leiva rights, cates much of arguing its brief to the ineffective-assistance claim before this Ponce-Leiva waived the claims he raises court related to whether Ponce-Leiva com- before us. plied procedural with the an- requirements court, In his brief to this Lozada, nounced Matter 19 I. & N. (1) raises the denial following claims: (BIA 1988). Dec. 1988 WL request of the continuance and the subse- Therefore, government argues, holding of quent hearing was a denial BIA did not consider the instant ineffec- (2) right of his counsel’s claim, tiveness and the claim is thus ex- performance constituted ineffective assis- hausted. According

tance of counsel. to the govern- reject government’s arguments, We ment, both claims are barred. and we find that each of Ponce-Leiva’s government that Ponce- contends properly is claims before this court. raising is Leiva barred from with this First, process court claim that based on the the due inex is denial claim is tricably the continuance It two with the request. advances linked First, arguments. request. it asserts that in deter- denial of the continuance mining process right whether Ponce-Leiva’s due that his Ponce-Leiva’s assertion III. solely is on the violated based

counsel was deny decision immigration judge's above, As stated Ponce-Leiva now rais- request. While would have continuance (1) the following es the claims: denial of preferable for been request continuance and the subse- the denial greater pains equating quent holding taken constituted statutory with the viola- violation of his and constitutional request of the continuance of due counsel and violation rights, two of his due tion (2) process; and counsel’s unreasonable finding the same. This claims are one and at the constituted ineffec- absence posi- government’s is consistent assistance of counsel. tive order, in a BIA’s sentence continuance re- did not mention the First, we consider whether quest, actually the continuance addressed request of the continuance violated Ponce part by Accordingly, argument. It is well-estab Leiva’s admissions, the issue at an government’s own lished that alien has some form of to counsel. of the continuance regarding the denial well-settled, equally It though, in the BIA’s order appeared both “there no Sixth Amendment submission deportation hearings.” Uspan counsel in BIA, it forms basis of Ponce- go Ashcroft, Cir. Thus, pro- process claims. Leiva’s due 2002). proceedings are Deportation cedural bar exists. “criminal An prosecutions.” alien’s to counsel has at differ designated, been Second, claim for in Ponce-Leiva’s times, both statu ent as constitutional and of counsel was not effective assistance right in tory. statutory The is encoded that Lozada sets forth a waived. We note 240(b)(4), § INA which states that “the that an alien three-step procedure must privilege being rep shall have the of alien reopening to justify follow of removal resented, expense to the at Govern on of ineffective as proceedings the basis ment, by choosing counsel of alien’s who is include, steps sistance of counsel. practice proceed authorized alia, filing giving motion and inter a 1229a(b)(4)(A). § 8 ings.” U.S.C. This opportuni allegedly ineffective counsel statutory provision has in the been tracked ty Ashcroft, v. 259 respond. Lu F.3d applicable INS See C.F.R. regulations. 8 Lozada, 127, (3d (citing 19 I. 132 240.3, 292.1, 3.16(b), §§ and 292.5. The 639). & N. Dec. at We concluded Lu constitutional to counsel is based three-prong that the BIA’s test was a rea upon guarantee the Fifth Amendment’s discretion, of the BIA’s sonable exercise process Uspango, of law. F.3d at due 132, also id. but we warned there 231. strict, dangers applying

were inherent clear that While it is aliens have both a interpretation formulaic of Lozada. statutory constitutional places While Ponce-Leiva’s brief counsel, it how the two relate to is unclear emphasis showing that he most its appeals pre- each other. Courts requirements, it also has fulfilled Lozada’s relationship ways. sented this in different suggests that counsel’s ineffectiveness was Circuit, According pro- Ninth due process. Accordingly, denial of due we if only is cess violated violation claim, may analyze at least within the statutory accompanied to counsel See, parameters e.g., process. significant prejudice. of due Castro- Dep’t. Immigration ing v. O’Ryan U.S. constituted an abuse of discretion. (9th Naturalization, 847 F.2d The cases discussed the most detail are Cir.1987). recog- The First Circuit has Castaneda-Delgado v. 525 F.2d 1295 rights, (7th both but it has considered nized Cir.1975), court, case from this See, distinguishing them without them. Chlomos Cir. (1st e.g., Nelson v. 232 F.3d 1975). The argues dissent that our deci Cir.2000). Eighth Circuit has also sion contrary to these cases and is both, (but recognized suggested and it has disagree. therefore incorrect. We be We stated) explicitly order for a distinguishable. lieve that each is found, the violation to be de- In Castaneda-Delgado, petitioners, privation especially egregious. must be spoke who no English, stated at ini their See, Torres-Sanchez, e.g., United States tial they wished to obtain Cir.1995). 230-31 representation. judge granted a two- Ponce-Leiva’s counsel stated at oral ar- day continuance in order for them to se gument in order for Ponce-Leiva’s cure an attorney. At the hearing days two violated, have been later, petitioners were still without a judge must have abused his lawyer, and the denied their request by denying discretion the continuance re- for another continuance. The Seventh quest. Circuit found that the denial was We find that there was no abuse of “arbitrary and capricious and constituted a discretion gross abuse discretion.” Castaneda- The immigration was Delgado, 525 F.2d at 1300. faced with counsel’s flagrant violation of agree giving We the Castaneda- practices procedures immi Delgado petitioners a days mere two gration court. Counsel had been informed secure counsel—and then proceeding eight to the prior months the hearing they when unsurprisingly did date on which the held not a lawyer have an abuse of discre —was agreed and had then to that date. His Ordering petitioners tion. the to make a requesting last-minute a letter continuance representation mad for dash then —and to failure secure alternate counsel proceeding they without counsel when plainly inadequate. emergency were No comply could not the fun with order —was part on alleged. the of counsel was In case, damentally In unfair. the instant deed, no given reason was for counsel’s however, already had at an trip Diego. government to San was torney, attorney eight and the knew proceed, to ready and the court and the months in the advance date the merits an in taxpayers disposing had interest hearing. He simply decided that he was Further, Ponce-Leiva’s case. immi the not going up. The immigration show gration judge made a reasonable determi judge took into the consideration burden light previous nation that of counsel’s on government the and on the taxpayers, performance deficient with respect and it not was unreasonable the immi Ponce-Leiva, his absence at hearing gration a judge to decide that further con would have made no difference. was tinuance not warranted. dissent cites number of cases Chlomos, appeals petitioner subject which courts of found an im In was migration judge’s deportation hearing. already a continuance to a He was counsel, but, subsequent represented by a hear holding of notwithstand- continuances, spect immigration proceedings, he was unable to “the ing various inability mere counsel not attorney, and the court never obtain does contact process.” constitute violation of due attorney peti- that the gave notice Torres-Sanchez, 68 F.3d at Cases deportation in the tioner was Circuit, Tenth arising Eighth court held proceedings. Circuit, and even the Ninth Circuit itself petitioner’s attor- without the id; applied this rule. See Nazakat v. petitioner’s right that the ney. found We Cir.1992); disapprove of violated: “We to counsel was Vides-Vides administrative agency scheduling an (9th Cir.1986). cases, In each these rep- who knows is person time, given ample petitioner, being after giving without notice resented representation was unable to secure for an Chlomos, F.2d at 313. lawyer.” to the immigration hearing, and the grievance court Our proceeded nevertheless in Chlomos was with the court’s decision case, In hearing. the instant petitioner’s at- hold a without ample time to given obtain case, In instant torney being notified. unable, and he in fact did so. He Ponce-Leiva knew months counsel for however, presence to secure counsel’s but he failed advance about hearing. This ob- “inability mere as appear. distinguishable, The facts are tain counsel” was not violation of due ruling against Ponce- is our rationale process, or a denial of Ponce-Leiva’s Leiva. to counsel. Chlomos, do “[w]e As we stated in making We note that its deci unnecessary delay dilatory tac condone sion, the BIA determined that immi ruse unavaila through tics of counsel’s gration judge his obligations fulfilled under bility.” Id. 314. While the dissent INA, which states that “the alien shall correct in that the opportunity have a reasonable to examine presented case was with no against evidence the alien [and] dilatory “unnecessary delay or evidence of present evidence on alien’s be own through the una tactics ruse counsel’s 1229a(b)(4)(B). § half.” In 8 U.S.C. so vailability,” the onus was doing, the BIA concluded that absence his failure provide adequate reason for necessarily of counsel does not violate the appear. Castaneda-Delgado unrepresented interpretation INA. The BIA’s Chlomos, petitioners either the right statutory alien’s to counsel is an in neda-Delgado) (Casta coun terpretation regulations of to which INS. deportation sel was uninformed of the give “great we deference.” Abdille v. Ash cases, (Chlomos). In these both of (cita croft, 242 F.3d 484 right to no doubt violated. counsel was omitted). tions however, case, In the instant represented, and counsel knew of his was was the right not denied to obligations. discharge Counsel’s failure counsel, and oppor- he was not denied the that his duties did not mean Ponce-Leiva’s tunity to obtain the counsel of his choice. violated; “right to counsel” was Ponce- attorney simply through His failed come simply poor Leiva the victim of law unfortunate, for him. this is While Ponce- yering. Leiva’s not counsel was violated.

Our is consistent with the to a number holding The dissent alludes of cases Eighth holding statement that with re- from the Ninth Circuit that an Circuit’s

377 however, a immigration judge’s asy- denial of continu that Ponce-Leiva’s claim for reasons, an of solely both constituted abuse lum was ance based economic discretion and violated alien’s and therefore not By merit relief. INS, Reyes-Palacios observation, v. making counsel. See 836 this we do not intend (9th Cir.1988); Colindres-Agui imply F.2d 1154 continuance must be grant- (9th INS, Cir.1987); v. lar 819 F.2d 259 if a ed claim is facially meritorious. doWe (9th v. Rios-Berrios F.2d 859 believe it is proper reasonable and an Cir.1985); Castro Nuno judge to appar- consider the (9th Cir.1978). Reyes-Palacios lack and ent of merit in claim deciding when analogous are proceed Rios-Berrios to Castaneda without counsel. is, -Delgado, when the suggest We do not that there could nev- proceed decided er be a violation process by of due representa not yet the alien had obtained failure to grant asy- to an continuance tion. facts distinguishable These are from lum seeker who is without counsel. How- facts, instant which Ponce-Leiva ever, under the facts circumstances of already had obtained counsel of his ease, the instant immigration judge’s particular Colindres-Aguilar choice. of the continuance request did not Nuno, however, ly Castro are similar discretion, constitute an abuse did already instant in that the case alien violate statutory represented attorney inexpli did any not violate of Ponce- appear. cably failed to The Ninth Circuit Chlomos, rights. Leiva’s constitutional found that under the circumstances in which we ruled that an alien’s cases, presented those the scenarios a de violated, counsel was we found that there nial the alien’s counsel. Never existed an “undue privi- curtailment theless, to the extent the facts Chlomos, lege representation.” may be those cases similar to those the F.2d at 311. That was not the case here. case, persuaded we thereby

instant are not due-process No further nec- discussion is our conclusions are incorrect. essary. agree We with the Ninth Cir IV. type cuit’s view that the resolution question of case is fact-driven: “The Ponce-Leiva next advances whether denial a continuance an im claim for ineffective assistance migration proceeding constitutes abuse This claim is based on the Fifth Amend through Uspango, of discretion cannot be decided ment due clause. rules; application of bright-line must F.3d 231. To advance a successful resolved on case case basis accord claim for ineffective assistance of ing prejudice to the facts and circumstances of an alien each must demonstrate —he prevented case.” Baires “must show he was Cir.1988) (citation omitted). case, (cita reasonably In this presenting case.” of the circumstances the immi quotation one which tions and internal marks omit ted). gration judge apparently his has not met factored into Ponce-Leiva this bur deny removability, the continuance the He he decision was den. admits attempt facial lack merit in appli ques Ponce-Leiva’s makes no to show that the impression by for asylum. immigration judge cation This initial tions asked did presented give present opportunity was borne out the evidence not him the his outset, It hearing. fully. prej- was clear at the absence did not case Counsel’s opportuni- Ponce-Leiva, to allow Ponce-Leiva sufficient and therefore Ponce- udice representation. ty claim must fail. to find Leiva’s ineffectiveness immediately exercised his seek- V. securing he ing and with whom appeared eligibility hearing. at his removal judge’s denial immigration Because 4, 1997, hearing At on November request did not violate continuance Ponce-Leiva, his con- through right to counsel consti- Ponce-Leiva’s he removability and indicated that ceded discretion, and because tute an abuse of immigration pursue asylum. The would for ineffective assis- Ponce-Leiva’s claim merits judge a trial date for the hear- set fails, deny we will tance of counsel also 1,1998, Wednesday, July eight some ing of petition review. months later. RENDELL, dissenting. Judge, Circuit prior in the week to the Sometime at the important considerations lie Two hearing, merits scheduled heart this difficult case: paid attorney. his met with and At by counsel represented retain and be meeting, counsel notified Ponce-Leiva immigration proceedings, very and the ser- hearing he would be unable make proceedings— ious nature of request continuance. date and is an especially asylum proceedings. This Thursday, letter dated June signposts area law there are few where requested that the Ponce-Leiva’s counsel us, it is principles guide or settled but immigration judge case continue the I majority nonetheless clear that the inability to attend the because im- hold different views of the constraints Diego, he would be San California judges by the posed upon immigration Monday, date. On June position to petitioner’s of one in letter, appar- received the judge Al- represented by choose to be ently request immediately, denied the though majori- in agreement I am with the continu- writing proposed on the order of ty respect holding to its that Ponce- ance, accepted this date on “Denied. You procedurally claims not Leiva’s evidence, There is no how- Nov. 1997.”

barred, disagree majority’s I with the con- ever, that the denial communicated immigration judge clusion that did attorney, Ponce-Leiva or his and the rec- by disregarding abuse his discretion expected clear ord makes that counsel have counsel at his to be granted. continuance must, therefore, asylum hearing. merits respectfully dissent. later, days At the two Ponce- Leiva counsel. The im- appeared without outset,

At call necessary I think it judge migration announced on record particular attention to the circumstances that he had received attempted ex- surrounding Ponce-Leiva’s continuance, deny but had decided ercise of his to counsel. An under- proceed hearing. request and case standing setting factual did not ask Ponce- my is crucial to view that the pro- or not he Leiva whether desired handle matter properly did not representation, opined ceed without him. Ponce- before At his initial would be Ponce-Leiva’s best Leiva informed interest to move ahead with the to obtain counsel at his expense, eligibility hearing own was continued without case

379 (1964) the immigra- context, retained counsel. include (recognizing, in criminal comments, full, judge’s in in trial relevant judges have discretion con over tinuances, margin.1 but stating nonetheless that “a myopic upon expeditiousness insistence in obviously that, majority correct justifiable the face of a request for delay speaking, it an generally is within immi can render the to defend with coun gration judge’s grant discretion whether to sel an empty formality”); Romero-Mor However, deny a continuance. it also (2nd 125, v. 25 ales F.3d 130-31 scope the case that of the (citing Ungar in immigration limited the statutory discretion is context); Rios-Berrios v. Thus, parties. constitutional of the (9th Cir.1985) 859, (same). unjustified an an asylum applicant’s of an presents Ponce-Leiva’s case compel- his retained counsel at his can ling have side set of for finding facts surely constitute an abuse discretion counsel violation. Ponce-Leiva clearly de- See, e.g., requiring representation reversal. Castanedas- sired at his hearing; 1295, Delgado out, retained, sought he paid Cir.1975) (holding represent And, that the failure to grant him. crucially, Ponce- a continuance is an abuse discretion Leiva never waived rights. his The immi- deprives gration where alien judge never asked whether Ponce- counsel); Ungar Sarafite, see also 376 Leiva wished to represen- continue without 841, tation, S.Ct. yet U.S. L.Ed.2d proceeded he the hearing help respondent. 1. The stated: There is little likeli- anything hood that would he do at a future question Initially, the arises as to whether It either. would also not be in the the case should continued. Counsel for taxpayers interests of to continue this case. respondent wrote a letter received Despite eight months of the notice 29, Immigration Court on June personal agreement and his own to attend Immigration Court denied the case in November counsel for the respondent’s for the continuance. The respondent failed to come at the last min- appear arrange did did not Every young ute. time this man has come substitute. Court, already and he’s been here three July Immigration On Court times, he has take off It is from work. decided that it would be in best interest aggravating experience anybody respondent go forward with this hearings. have attend [sic] respondent case. The testified that had he paid taxpayers interpret- for the received no assistance whatsoever counsel, and four hours of er Court time have been preparation asy- in either for the upset aside set to hear this case. It would regarding lum or advice how he expectations the Service if these attempt permanent could to obtain lawful processed orderly cases cannot be on an country. resident status in this To continue impede ability basis. It also would place case respon- effect manage attorneys the Court to its docket if again, dent in the hands of his counsel who respon- could do what counsel for the collecting has shown no reluctance fees case, specifically, dent did in this although fail respondent from the there is hearings come for that have been scheduled anything evidence he's ever done long in advance. return for those fees. would be This Finally, Immigration Ap- young the Board financial detriment of this who man .of peals living works hard has held absence counsel is not the United necessarily prejudicial Especially States. [sic]. err present It purpose would also serve no useful in circumstances such as those clearly since the record shows this case where the counsel has done noth- respondent nothing ing respondent. counsel for the did for the 380 ... privilege being represented and retained counsel

absent Ponee-Leiva’s choosing.” deportable. [their] him counsel of 8 U.S.C. ultimately found 1229a(b)(4)(A).3 submit, accordingly, § acknowledges that Ponce- majority asylum that once an seeker has retained is on both right to counsel based Leiva’s he is entitled to his counsel and a federal statute. the Constitution hearing. Proceeding at his with- that appears to hold Yet it circumstance, a absent out counsel to is somehow subservient to counsel applicant’s the waiver of his or evi- judge’s exercise discre- the faith, is a statutory dence of bad violation. requests, even where tion over continuance un- it is applicant proceeds the While well settled it means that nature, proceedings his ma- are not criminal and represented against wishes. The instant situation to that the to counsel at issue here does even likens the jority protections of the Sixth deportee has been unable to not arise one in which a Amendment, see, Ashcroft, reasoning e.g., line Lu v. 259 obtain counsel.2 This (2001), 127, 131 “right” repre- to be F.3d we cannot treat immi appears to render the gration proceedings everyday counsel to be like civil sented retained some- formally a civil thing right. proceedings, despite less than true But their provides Lopez-Mendoza, aliens character. See INS v. statute “shall have analogy to be suited to the counsel after and two continu 2. This seems ill four months However, settings very clearly at realities of these different factual ances. Id. 1470. it has analogize major to to unsupported the case law refused that decision situa and See, presented e.g., tions ity The decision in like one here. references. Nazakat 259, (10th Cir.1992), Colindres-Aguilar v. certainly F.2d 1146 819 F.2d 261 & not, states, (9th Cir.1987) majority (distinguishing one in which n. Vides-Vides was as the simply holding immigration judge proceeded explicitly petition and where absent, represented but petitioner after the was unable er was counsel was obligated representation secure within reasonable in petitioner pro contrary, peti quire case time. To the whether the wished short, counsel). but ceed without In cases tioner advised of these it, choosing "represent upon support principles him lend waived instead little hearing.” opinion majority’s self and continue with Id. which the is based. addition, the court’s statement that 1147. petitioner's inability to obtain ... "a majority not does assert that the statu 3. process” does not a violation of due tory constitute "privilege” reference to makes less very peti was in the different context of the right, subheading they. than a could nor argument application statutory tioner's that strict language relevant refers alien, applicable regulations necessarily 1229a(b)(4), “rights” § violates U.S.C. appears pro implementing the petitioner regulations where se and the refer to a English. "right” lacks a command "entitle[ment]” counsel. 8 292.1, rate, Similarly, any §§ in United States v. Torres- C.F.R. 292.5. At dis Sanchez, Cir.1995), "rights” peti "privileges” 68 F.3d 227 tinction between See, long attempt e.g., tioner made one unsuccessful to se has been discredited. Graham Richardson, representation subsequently cure but decided 403 U.S. 91 S.Ct. (1971) ("[T]his proceed without counsel. The court found 29 L.Ed.2d Court rejected concept petitioner deprived that the "was of coun now has that constitu statutory knowingly upon governmen sel waived tional turn whether 'right' tal counsel.” Id. at 231. In Vides-Videsv. benefit characterized as as a ”); (9th Cir.1986), Merluzzi, 'privilege.' 783 F.2d 1463 the Court of Palmer v. J., (3d (Cowen, Appeals the Ninth Circuit held 98-99 concur ring part dissenting part); Skip judge had not committed revers States, proceeding to ible error in the merits when worth v. United Cir.1975). petitioner had been unable secure

381 3479, (“Congress long 104 S.Ct. 82 F.3d at 132 recog 468 U.S. has (1984) that (stating immigra L.Ed.2d 778 nized importance of in immi counsel civil). Immigration proceedings are gration proceedings.”); Escobar-Grijalva place proceedings occupy unique law INS, (9th Cir.2000) 1331, v. 206 F.3d 1335 from, sharing somewhat distinct both of (“Deprivation the statutory right with, criminal features both civil and ac deprives an asylum-seeker counsel alien of always tions. We must take care re hope the one labyrinth she has to thread a that, pro in everyday member unlike civil impenetrable almost as as the Internal liberty ceedings, “the of an individual is at Code.”); INS, Revenue Waldron v. 17 deportation proceedings, stake” in and (2d 511, Cir.1993) F.3d (holding 518 that that: right alien’s to counsel is a “fundamen deportation [t]hough technically is not INS, tal” 89, right); Baires v. 856 F.2d 91 proceeding, great criminal it visits a (9th Cir.1988) n. 2 (stating right that the of deprives hardship on the individual and in deportation proceedings counsel is “crit stay him the live right of and and “fundamental,” ical” and and that it “must work in this land of freedom. That de be respected in substance well as as portation penalty is a times most — at Rios-Berrios, (citing name” 776 F.2d one — cannot be serious doubted. Metic 863-64)); INS, Reyes-Palacios v. 836 F.2d lest ulous care must exercised (9th (“The 1154, Cir.1988) importance 1155 procedure by deprived which he is particularly in asylum cases liberty not meet essential stan complex where the is developing, law dards of fairness. can ignored.”). neither be overstated nor Wixon, 154, 135, Bridges 326 v. U.S. 65 short, although implicated by 1443, (1945); 89 S.Ct. L.Ed. 2103 see also Sixth guarantees, Amendment’s the right Peterson, (3d 180, F.2d McLeod v. 283 183 is on principles based of constitutional due Cir.1960) immigration pro (stating process.4 ceedings especially involve “an critical and Also distinguishing con- right”). fundamental individual The ex everyday text from disputes civil is the ceptional life-altering character immi attorneys proceed- fact gravi gration proceedings underscores the ings constitutionally imposed are held ato ty during is, proficiency. minimum level of That proceedings, accordingly and courts aliens, emphasized like the distinct and fundamental criminal defendants and unlike See, Lu, importance may right. e.g., parties disputes, 259 the in normal civil " immigration pro utory right integral part counsel in to counsel is ‘an ceedings, provided regulation procedural process while due federal to which the alien " statute, see, INS, e.g., (quoting 8 U.S.C. is entitled’ Botanic v. 240.3, 662, (7th INS, 1229a(b)(4)(A); Cir.1993))); § ground § C.F.R. v. 8 667 Iavorski 232 See, 124, (2d Cir.2000) (same). protections. e.g., gen ed in constitutional F.3d 128 See 162, 292, Flores, 307, erally Montilla v. F.2d 166 Reno U.S. 926 Cir. v. 507 113 1991) 1439, ("[T]he (1993) ("It Due Process clauses and Immi S.Ct. 1 is well 123 L.Ed.2d gration Nationality Act an alien afford[] established that Fifth Amendment entitled deportation process counsel of his own choice at his to due law in aliens expense.”); proceedings.” (citing Japanese Immigrant own v. Thorn Orantes-Hernandez Case, 86, 100-01, 611, burgh, F.2d 47 919 554 189 U.S. 23 S.Ct. ("[A]liens (1903))); process right have a due obtain L.Ed. Chlomos F.2d (3d Cir.1975) ("An subjected their choice at their own ex alien pense.”); deportation see to due proceedings also Saakian entitled (1st Cir.2001) law.”). (stating process 24-25 stat statu- guaranteed assistance from the ineffective obtain relief Lu, See, torily during F.3d at 131- to counsel guaranteed e.g., of counsel. proceedings. Id. at 313-14. process guarantees immigration that due (stating immi- had been Holding of counsel in that Chlomos’s assistance the effective also, e.g., subject Fried- an “undue curtailment” necessi- see to gration proceedings); reversal, Arizona, at we stated: tating id. man there is no (stating that granted were in While two continuances in counsel a civil effective assistance matter, case, practical they as a this Henderson, case); 855 F.2d Glick v. inadequate to make services of (8th Cir.1988) (same). Indeed, Ponce- petition- his counsel available to chosen here. just a claim Leiva makes necessity for the er. There was immigration judge, hasty hearing by our with majority’s opinion The conflicts made arrangements and could been area, in decision single most relevant have been reasonable for which would Cir. Chlomos v. petitioner’s government and both the 1975). Chlomos, “ex we considered not We do condone unneces- agency to an administrative tent which sary delay dilatory through or tactics statutorily conferred may curtail a unavailability. of counsel’s Ef- ruse at counsel.” Id. the assistance of retained management ficient administra- an alien who clear 311. case involved prevent tive can such abuse represen to retain expressed his desire ly appears. appear That when it did tation, ultimately unrepre went but who here. problem be in deportation hearing during sented period Id. at 312-13. Over Florida. Id. at 314. weeks, case was twice contin several analysis in Chlomos has never been Our adequate an ued order to allow Chlomos overruled, questioned, or even sub- representation. Id. opportunity to obtain directly mit it controls the case before Although had retained Chlomos Chlomos, us. as in Just his appeared at sched unrepresented he presented evi- judge here was not with had hearing. Apparently uled Id. Chlomos “unnecessary delay dilatory dence of attor difficulty contacting serious his ruse avail- through tactics of counsel’s fact he due to the ney partly least —at And, Chlomos, ability.” just as in here agency never was incarcerated —and the clearly repre- to have sought though even it had sent notice to disposition hearing his during sentation information. ready access his contact representation because but went without had Id. at 312-314. Chlomos’s of the refusal of the case requested that be transferred any compelling without continue case Jersey, the venue in which back New justification. majority distinguishes initially originated, case had hold Chlomos based on “decision to simply with immigration judge proceeded petitioner’s attorney hearing without the par Id. refused to hearing. Chlomos Here, however, being the rec- notified.” re ticipate proceedings in the besides a similarly ord not reflect that counsel does lawyer, peated speak request request that his continuance was advised ultimately deported. ordered to be Further, given emphasis denied. 313. major- immigration judge and the both the reiterating ity apparently place on the tardiness and began by

We reversed. We constitutionally request a con- inadequacy alien’s counsel’s gravity tinuance, is notable that Chlomos denial of wholly the continuance “was with- request was no a continuance— the discretion of there only an not be arbitrary [could] informal transfer said capricious or an made the INS. abuse discretion.” Id. Chlomos’s Nonetheless, essentially Chlomos we that the was under

held reversed, finding Seventh Circuit sua obligation continue the case arguments un- “singularly the INS preserve in order sponte Chlomos’s impressive.” Id. The recognized court Similarly, immigra- counsel. the question that “the of whether not to judge obligation here under an tion grant continuance at such an administra- obtain a of either waiver ordinarily hearing tive rests in the discre- or continue the case tion of the officer the conducting hearing adequate an opportunity allow Ponce- (in case, this immigration judge),” but presence. Leiva secure his counsel’s reiterated that such are “subject decisions Chlomos, 516 F.2d at See 313-14. to reversal if there is a clear showing of abuse of that discretion.” Id. majority’s assessment of this case is them, Analyzing the facts before the court contrary to the also settled views sever then stated: al of our of Appeals, sister Courts views bar, In the large part echo case at opinion immigration that our judge justification no had denying Chlomos. The the Court of decision reasonable further Appeals for the Seventh continuance to Circuit Cas INS, (7th purpose obtaining Castanedas for tanedcu-Delgado v. 525 F.2d 1295 Cir.1975), compelling counsel ... and example. one At then them instructive proceed repre- initial without their Castanedas stated By doing, they immigration that obtain sentation. so representation, wished to procedural denied the granted two-day and the court continu Castanedas process by depriving them of their purpose. ance for that Id. at 1297. At the later, granted by to counsel days statute and two the Castanedas regulation. appeared unrepresented, We hold these actions again explaining arbitrary attorney that their was unable come capricious gross and constituted a they would seek alternative counsel. continuance, abuse of discretion. Id. Their for another however, immigration denied INS, (citing Id. 516 Chlomos v. F.2d 310 proceeded judge, who to the merits and (3d Cir.1975)). deportable. them

found The Seventh Circuit has since reaffirm Ponce-Leiva, principles Like underlying the Castanedas ed that decision. See, INS, (7th summarily “in urged denying e.g., Snajder them a 29 v. F.3d 1203 Cir.1994). compelling further continuance ... and in Similarly, Appeals the Court of proceed attorney,” them to without an time again Ninth Circuit has immigration judge’s actions were “arbi- held that the to accord an alien” “[f]ailure trary, an capricious, “may, statutory light abuse discre- to counsel record, which de- an improperly effectively of the entire administrative them represented requiring nied of their to be of discretion remand.” abuse INS, attorney an Castro-O’Ryan of their Id. at v. F.2d choice.” 847 (9th also, position Cir.1987); e.g., 1298. The INS took a also similar see Esco here, (9th INS, taken arguing bar-Grijalva one v. 206 F.3d 1331 support Cir.2000) is in fact little evidence there (holding deficiency part any on conclusion petitioner’s right from counsel’s letter discretion). It clear an abuse choose counsel was judge that he assumed to the cases, long line Particularly is a relevant granted. request would be the continuance here, holding resembling those with facts offering a number of alternative After an that the decision of weeks, following during dates may violate deny a continuance wrote, “I will communicate with and constitute right to counsel alien’s upon my return order the Court See, e.g., Reyes-Pa discretion. abuse of arrange trial date.” Further a suitable Cir.1988) (9th INS, F.2d 1154 lacios v. more, any dilatory there is evidence of basis); Colindres-Agui (reversing of coun part bad faith on the behavior or Cir.1987) (9th lar v. request. To prior to the continuance sel (same); 776 F.2d 859 Rios-Berrios appeared for contrary, Ponce- Cir.1985) (9th (same); Castro-Nuno previous proceeding, and had Leiva at a attempts made to contact his numerous (same). asylum the preceding client in the months significance downplays the majority hearing. Additionally, it is merits worth cases, I submit that line of of this evidence re reiterating there no authority support they represent ample attorney garding why the needed the con claim that his Ponce-Leiva’s than that he needed to be tinuance other in Castaneda-Delgado, as violated.5 Just we know this could Diego. San For all had rea judge here no appearance re have been a court ordered justification denying for the con sonable presume To quired at the last minute. compelling tinuance deficiency per laxity some counsel’s Although the proceed without counsel. Court, formance, respect or lack of for the suggests record It on this is not called for. is nei basis judge pro was sincere his belief immigra ther our role nor the role of the asylum hearing eligibility ceeding speculate missing tion about inwas Ponce-Leiva’s best without counsel facts, it but it should be noted that is not interests, doing so were reasons attorney an a at all uncommon for need by any di subjective, uninformed entirely legitimate wholly continuance for reasons alogue regarding with where, here, as date was even the im majority states that wishes. Arguably far in advance. date set de migration “made a reasonable having provides far in been set so advance light previ excuse, termination that in of counsel’s likely more an as counsel could respect to performance ous deficient predicted not have known or months be Ponce-Leiva, might fore what he face at that his absence demands time. have made no difference.” Yet would arbitrary distinguishes the even than the denial in Cas majority

5. The Castanedas’ more concluding See, e.g., situation that, taneda-Delgado. from Ponce-Leiva's Cent. Comm. of here, attorney, and Ponce-Leiva had Refugeesv. Am. 795 F.2d attorney go “simply he was not decided Cir.1986) (stating “an that interference with submit, however, ing up.” I that the to show established, on-going attorney-client relation situation, a when denial of in this continuance ship" present “key like the one here is a counsel, paid Ponce-Leiva had retained and finding factor” in a violation of requested a continuance counsel had first counsel). “simply” showing up letter —not —is Finally, there is no evidence that Assuming depriva- that we find would tion of request dilatory continuance was made for Ponce-Leiva’s reasons; government argues listing first that no relief very is war- ranted because Ponce-Leiva’s very on merits and, thus, claim lacked merit he suffered request Certainly first continuance. prejudice. no Chlomos we did not ex- was correct to take plore the showing need of prejudice note the inconvenience and cost to the because it was clear pres- under facts government continuing as prejudice Chlomos, ent there that existed. preferable well as that it have been Although 516 F.2d at 314. we ex- earlier, had counsel submitted the pressed our “misgivings” with view but those considerations have little to do showing prejudice is necessary with whether it was “better” for Ponce- under, circumstances, id., these it ques- is a proceed Leiva to without the he attorney on yet which we have to rule.6 See him, paid represent retained and id.; Chong see also seriously cannot be said to overcome (3d Cir.2001). And, n. 2 because the have counsel majority holds Ponce Leiva’s Thus, if these facts he desired to so. do counsel was not infringed, did not ad- here, in the presented least circumstances question.7 dress this unsettled clearly has where alien exercised or intends exercise his There persuasive authority for the waiver, and there is evidence of bad conclusion that claimant such as Ponce- faith, tactics, dilatory agree cannot showing Leiva need not make a preju- of majority that the immigration dice order to claim establish a of revers- grant failure a continuance was ible error when the immigration un- counsel,8 not an abuse of discretion. justifiably proceeds without question 6. This is a on concluding which our sister that defendant who has con- Appeals split. Compare, e.g., Courts of lawyer. fessed need a doesn’t INS, (5th Ogbemudia v. 988 F.2d 595 Cir. 1993) showing (requiring that alien amake of 8. The decisions several of our sister Courts prejudice), Farrokhi 900 F.2d 697 Appeals support proposition where that Cir.1990) (same), and Michelson v. the violated is a fundamental one (10th Cir.1990) (same), F.2d 465 dron, with Wal grounded statutory in federal and constitu (requiring showing), 17 F.3d at 518 law, represented tional such as the to be Castaneda-Delgado, and 525 F.2d at 1299 asylum proceedings, prejudice counsel in (same). that, It should also be noted al presumed. alien should be For in though otherwise, suggests majority stance, Appeals for Court the Second Appeals yet Court for the Circuit Ninth has Circuit, in Montilla v. 926 F.2d 162 showing to determine prejudice "whether Cir.1991), claiming held that "an alien that be must made where the has regula INS has failed to adhere to its own effectively respondent de been denied in a regarding tions to counsel in de portation hearing." United States v. Ahuma portation hearing required is not to make a (9th Cir.2002). da-Aguilar, 295 F.3d showing prejudice he is before entitled view, did, however, relief.” Id. at 169. On that court’s majority 7. The note regulation promulgated protect "when is judge can take the into "merits” determining a fundamental derived Consti account from the whether a continu- statute, granted. exploring ance should be tution or federal and the INS fails to But it, of, judging deportation pro challenged adhere to "merits” absent assistance from, explication ceeding agency advocacy and a to the invalid remand Waldron, appear only required.” exacerbate the 518. Simi Indeed, right. larly, Appeals seems somewhat akin Court of the Seventh prejudice must we hold Even were COMMUNICATIONS however, OMNIPOINT suggests the record present,

be L.P., ENTERPRISES, may appropriate. still reversal Appellant possi to dismiss the majority seems prejudiced Ponce-Leiva was bility that but that conclu the absence of easily Although drawn. so sion cannot be ZONING HEARING BOARD OF con rightly current counsel TOWNSHIP. EASTTOWN is little argument that there ceded at oral No. 02-2194. Ponce- to indicate that

on record asylum, claim meritorious Leiva has a Appeals, United States Court primary that all of the he also reiterated Third Circuit. the record was uncounselled. evidence in Colindres-Aguilar, 819 F.2d at See 19, 2002. Argued Dec. (“Retained mar have better could Rehearing Panel Submitted Sur peti presenting facts in specific shalled May 2003. withholding of tioner’s case Rios-Berrios, departure.”); June petitioner prejudiced (finding case could be “more advanta where the counsel). by retained

geously presented”

Moreover, immigra it is notable never asked Ponce-Leiva he believed he was entitled

what basis all

asylum. judge asked issue, posed

around never directly. circum

question Under

stances, it would not be unreasonable by prejudiced

find that Ponce-Leiva

the absence review, grant petition

reverse, and remand for new

hearing. Castaneda-Delgado regulations important "when is too Circuit held in statute denied in a and fundamental a to be circumscribed an alien is deportation hearing, analysis.” to a error the alien entitled harmless Castaneda- Delgado, Snajder F.2d at 1300. circum new counsel.” "The stances,” concluded, (7th Cir.1994). Analogiz the court "call for F.3d pro remedy vacating ing prophylactic the order of to counsel in ceedings deportation writing and for on a to counsel in the crim thereafter 1302; context, Snajder, inal clean slate.” Id. at see also the court stated "the 1207; Cheung Fong Yiu represented of their choice F.3d (D.C.Cir.1969). granted deportation proceedings aliens

Case Details

Case Name: Julio Donaldo Ponce-Leiva v. John D. Ashcroft, Attorney General of the United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 5, 2003

Citation: 331 F.3d 369

Docket Number: 01-2900

Court Abbreviation: 3rd Cir.