WALTER OROZCO-LOPEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. HOMERO GONZALEZ MARTINEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 20-70127 | No. 20-71308
United States Court of Appeals for the Ninth Circuit
Argued and Submitted April 15, 2021; Filed August 25, 2021
11 F.4th 1021
Before: Susan P. Graber and Consuelo M. Callahan, Circuit Judges, and James V. Selna, Senior District Judge.
Agency Nos. A097-738-794, A072-099-648. Opinion by Judge Callahan; Concurrence by Judge Callahan.
Argued and Submitted April 15, 2021*
Seattle, Washington
Immigration
Granting Walter Orozco-Lopez’s petition for review, and remanding, and denying Homero Gonzalez Martinez’s petition for review, of decisions of immigration judges affirming asylum officers’ reasonable fear determinations in reinstatement proceedings, the panel held that noncitizens at reasonable fear hearings before an immigration judge are statutorily entitled to counsel, but that this entitlement is cabined by
The panel observed that in Zuniga v. Barr, 946 F.3d 464 (9th Cir. 2019) (per curiam), this court addressed the question of whether non-citizens subject to expedited removal under
The panel wrote that here the question is whether there is a statutory right to counsel at a reasonable fear hearing before an IJ for non-citizens with reinstated removal orders. The government argued that because neither the statute regarding reinstatement orders,
Considering the plain language of the statute, and in the absence of a textual basis for restricting the right to counsel under
The panel next considered how this eligibility for counsel is cabined by
Applying these holdings to the petitions at hand, the panel determined that Orozco-Lopez’s statutory right to counsel was denied, but that Gonzalez’s was not. Noting that a non-citizen may waive the right to counsel, but such waiver must be knowing and voluntary, the panel wrote that the IJ at Orozco-Lopez’s hearing did not mention the possibility of legal representation, so Orozco-Lopez could not possibly have waived it. Relying on Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), the panel also wrote
The panel rejected Gonzalez’s additional due process arguments concerning his hearing difficulties at the IJ hearing, and the IJ’s failure to call a witness by telephone. The panel also held that substantial evidence supported the IJ’s decision to affirm the asylum officer’s negative reasonable fear determination as to Gonzalez’s torture claim.
Concurring, Judge Callahan acknowledged Montes-Lopez’s holding that the denial of an alien’s statutory right to counsel is per se reversible error, but for the reasons stated in the dissent in Hernandez v. Holder, 545 F. App’x 710 (9th Cir. 2013), she believes that the case was wrongly decided, and should be revisited en banc.
COUNSEL
Chanakya A. Sethi (argued), Wilkinson Stekloff LLP, New York, New York; Alison V. Zoschak, Wilkinson Stekloff LLP, Washington, D.C.; for Petitioner Walter Orozco Lopez.
Sabrina Damast, Law Office of Sabrina Damast, Los Angeles, California, for Petitioner Homero Gonzalez Martinez.
Nadia Dahab, Sugerman Law Office, Portland, Oregon; Stephen Manning, Jordan Cunnings, and Tess Hellgren, Innovation Law Lab, Portland, Oregon; for Amicus Curiae Innovation Law Lab.
OPINION
CALLAHAN, Circuit Judge:
Walter Orozco-Lopez and Homero Gonzalez Martinez (collectively, “Petitioners”), natives and citizens of Guatemala and Mexico, respectively, reentered the United States illegally. The Department of Homeland Security (“DHS”) ordered them removed after reinstating earlier removal orders entered against them. They expressed fear of persecution and torture if removed to their home countries, so asylum officers conducted screening interviews to determine whether their fears were reasonable. The asylum officers determined that they were not, and immigration judges (“IJs”) affirmed those determinations. Orozco-Lopez and Gonzalez now petition for review of the IJs’ decisions on the ground that non-citizens whose removal orders have been reinstated are entitled to counsel, at no expense to the government, at their reasonable fear hearings before an IJ. We have jurisdiction under
I
“Congress has authorized reinstatement of prior removal orders as [a] streamlined process through which certain non citizens may be removed from the country.” Alvarado-Herrera v. Garland, 993 F.3d 1187, 1190 (9th Cir. 2021). As we recently explained, through reinstatement, “Congress sought to expedite the removal of those who reenter the United States illegally after having been removed at least once before.” Id. at 1194 (citation omitted).
“To reinstate a prior removal order, an immigration officer must find that the individual in question: (1) is not a citizen; (2) was removed or voluntarily departed while subject to a prior removal order; and (3) reentered the United States illegally.” Id. at 1190 (citations omitted). Orozco-
Although
For non-citizens whose removal orders have been reinstated, those regulations provide that “a non-citizen must first pass a screening interview conducted by an asylum officer, during which the non-citizen must show that he or she has a ‘reasonable fear’ of persecution or torture in the designated country of removal.” Id. at 1190 (citation omitted). “The alien may be represented by counsel or an accredited representative at the interview, at no expense to the Government.”
This regulatory scheme “allows immigration officials ‘to quickly identify and resolve frivolous claims to protection,’ thereby recognizing Congress’s desire to ensure the swift removal of non-citizens subject to reinstatement.” Id. at 1194 (citation omitted). “At the same time, a screening process addresses the United States’ treaty obligations by making it possible for those who do have a reasonable fear of persecution or torture to receive a hearing before an immigration judge at which they can establish their entitlement to appropriate relief.” Id. at 1195. We have previously stated that the regulation “balance[es] the fair resolution of claims for relief from removal against Congress’ desire to provide for streamlined removal of certain classes of individuals, including those subject to reinstated removal orders.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1079 n.8 (9th Cir. 2016).
“If the asylum officer determines that the non-citizen has not established a reasonable fear, the non-citizen may request review of that determination by an immigration judge.” Alvarado-Herrera, 993 F.3d at 1190 (citation omitted) (emphasis in original). “In the absence of exceptional circumstances, such review shall be conducted by the immigration judge within 10 days of the filing of the Notice of Referral to Immigration Judge with the immigration court.”
II
A
Orozco-Lopez is a native and citizen of Guatemala. He first entered the United States in 2003, illegally. The DHS promptly initiated removal proceedings. He did not appear at his removal hearing, and an IJ issued a removal order in absentia in April 2004. After being convicted of and jailed for a traffic offense, Orozco-Lopez was finally removed in May 2008. In 2013, he reentered illegally. After he was detained on charges of “corporal injury on spouse/cohabitant” and “criminal threats,” his prior order of removal was reinstated, and he was again removed in June 2019. At that time he did not raise a fear of persecution or torture if removed to Guatemala. In October 2019, he
Orozco-Lopez was referred to an asylum officer for a reasonable fear determination. He chose to have the interview without counsel. He told the asylum officer that, in 2003 in Guatemala, masked men who “wanted money” surrounded him, his mother, and his aunt and “tried to kill” them, though they were ultimately unharmed. He also testified that on another occasion, gang members asked him for money. When the asylum officer asked whether he feared harm based on statutorily protected grounds, he answered in the negative. Asked about his fear of government-enabled torture, Orozco-Lopez testified that the government had never harmed him and that he did not fear harm from officials if removed. He noted, however, that the police were not very effective at combatting crime. The asylum officer found Orozco-Lopez credible but determined that he had not established a reasonable fear of persecution because, among other reasons, (1) he was not actually harmed during the 2003 incident with the masked men; (2) there was no indication that they acted against him on account of a protected ground; (3) after the incident, there was no further contact with them; and (4) Orozco-Lopez’s fear of future persecution was related to general victimization by criminals or gangs—an unprotected ground. The asylum officer also found that there was “not a reasonable possibility that [Orozco-Lopez] would be tortured, with official consent or acquiescence, in the future,” because he “stated he was never harmed by public officials in the past and does not fear them in the future. . . . [And] he does not think they would intentionally allow criminals to severely harm him in their presence.”
B
Gonzalez is a native and citizen of Mexico. He first entered the United States in 1992, illegally, and was both ordered removed and in fact removed in 1995. At some time he reentered the country illegally and, in 1996, was convicted of “disturbing by loud unreasonable noise.” In 2005, he was convicted of battery. In 2006, he was convicted for “the felony offense of threaten[ing] crime with intent to terrorize.” In 2013, he was convicted of driving with a suspended license. Later that year, he was arrested by the U.S. Border Patrol and granted voluntary return to Mexico. Sometime thereafter he illegally reentered the United States. In 2020, the DHS notified Gonzalez that, because he had a prior order of removal, had been removed, and had illegally reentered, his earlier removal order was being reinstated. Gonzalez expressed fear of returning to Mexico and was referred to an asylum officer for a reasonable fear interview, which was held on April 3, 2020. At the beginning of the interview the asylum officer informed Gonzalez that he was permitted to have “a legal representative or consultant” present and asked if he wanted to proceed without one. Gonzalez responded that he “would
Gonzalez told the asylum officer that he was physically harmed twice in Mexico in 2013. In the first incident, he went to pick up money that his family had sent him and was surrounded by several individuals who assaulted and robbed him. In the second incident, Gonzalez took a bus to Mexicali to look for help coming to the United States. Three people offered to help but instead kidnapped Gonzalez and held him for ransom. After a day and a night his wife paid a ransom to secure his release. Gonzalez tried to report his kidnapping, but the two officers to whom he spoke “were laughing at the moment that [he] told them.” The asylum officer found Gonzalez credible, but determined that he could not establish persecution or torture because he had not been targeted on account of any protected ground and was harmed only by criminals.
On April 29, 2020, the asylum officer notified Gonzalez of his determination that Gonzalez did not have a reasonable fear of persecution or torture. That same day, Gonzalez requested review by an IJ, the Notice of Referral to Immigration Judge was issued, and a list of free legal service providers was given to him.
A hearing was held on May 7, 2020. Gonzalez asked for an extension of time to find someone to represent him. The IJ responded that the asylum officer’s “findings [were] filed
Initially, Gonzalez indicated some problems with understanding the translation through the headset due to a hearing problem. However, the IJ thought that this was because Gonzalez was “trying to listen to [the IJ’s] English and the Spanish at the same time and [the IJ and interpreter are] talking at the same time which is why you’re not supposed to be listening to both.” After the IJ offered this suggestion, Gonzalez did not mention any hearing difficulties.
Gonzalez told the IJ about the incidents that he had related to the asylum officer. He also reported that people who return to Mexico from the United States are at risk of getting kidnapped. He stated that he had a cousin who, in 2012, was kidnapped a week after he returned to Mexico and was never found. Gonzalez added that there are a lot of “zetas” who “ask for money for kidnapping.”
He also testified that he had a brother-in-law who was being charged 2000 pesos for his business and was threatened with death if he said anything. Gonzalez asked the IJ to call a cousin, but the IJ said she could not do so.
Gonzalez further stated that, in 2004, a friend of his had packed all his things in his truck and trailer and tried to leave, but the police killed him in front of his wife and children and took the trailer.
At the end of the hearing, Gonzalez again asked for time to get an attorney. The IJ responded, “[I]f you’re having trouble finding an attorney because of the coronavirus issues
III
“We review de novo due process challenges to reasonable fear proceedings.” Zuniga v. Barr, 946 F.3d 464, 466 (9th Cir. 2019) (per curiam) (citation omitted). We also review de novo questions of law, including those of statutory construction. Romero-Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir. 2011).
An “IJ’s decision not to continue a hearing is reviewed for abuse of discretion,” Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019), but “whether [an] IJ’s denial of a continuance violated [a petitioner’s] statutory right to counsel . . . is a question of law which we review de novo,” Montes-Lopez v. Holder, 694 F.3d 1085, 1088 (9th Cir. 2012).
“We review [an] IJ’s determination that [an] alien did not establish a reasonable fear of persecution or torture for substantial evidence,” which means that “we must uphold the IJ’s conclusion . . . unless, based on the evidence, any reasonable adjudicator would be compelled to conclude to the contrary.” Bartolome, 904 F.3d at 811 (citations and quotation marks omitted).
Petitioners argue that Zuniga holds that non-citizens have a right to counsel at their reasonable fear review hearings before an IJ. However, Zuniga’s holding is not so broad. In Zuniga, the question was whether “non-citizens subject to expedited removal under
Here, the question is whether there is a statutory right to counsel at a reasonable fear hearing before an IJ for non-citizens with reinstated removal orders. Neither the statute regarding reinstatement orders,
This approach is not persuasive. In Zuniga, we explained that “[t]he broader legislative context—outside of the specific provisions dealing with expedited removal proceedings for criminal non-citizens—also supports the conclusion that there is a right to counsel in reasonable fear proceedings.” Zuniga, 946 F.3d at 469. “In particular,
We are not asking whether reinstatement proceedings are necessarily a species of removal. We answered that question in the negative in Morales-Izquierdo. 486 F.3d at 490 (“[T]he fact that Congress placed reinstatement in a separate section from removal suggests that reinstatement is a separate procedure, not a species of removal.”). We explained that “[T]he scope of a reinstatement inquiry . . . can be performed like any other ministerial enforcement action. The only question is whether the alien has illegally reentered after having left the country while subject to a removal order.” Id. at 491.
Because the INA does not define “any removal proceedings,” we resort to tools of statutory interpretation. And “[a]s with any question of statutory interpretation, our analysis begins with the plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009); see also Chacon v. Wilkinson, 988 F.3d 1131, 1134 (9th Cir. 2021) (“When Congress does not define a term, we ‘interpret the words consistent with their ordinary meaning at the time Congress enacted the statute.’” (citation omitted)).
First, “[r]ead naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). Second, by saying “any removal proceedings,” Congress signaled that there is more than one kind of removal proceeding. Thus, Congress intended that non citizens have an entitlement to counsel at every possible flavor of removal proceedings before an IJ.
This conclusion is consistent with our prior reference to “reasonable fear and withholding of removal proceedings” as a “removal moratorium.” See Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir. 2018). Also, we have previously relied on
Our conclusion is supported by applicable rules of statutory interpretation. “We do not . . . construe statutory phrases in isolation; we read statutes as a whole,” United States v. Morton, 467 U.S. 822, 828 (1984), and “[w]here Congress includes particular language in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,” Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (second alteration in original) (citation and quotation marks omitted). Here, instead of saying “any removal proceedings,” Congress could have referred specifically to proceedings under
Finally, we note that, “[e]ven if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien.” See INS v. Errico, 385 U.S. 214, 225 (1966).
In sum, we hold that the words “any removal proceedings” in
V
We next consider how this eligibility for counsel is cabined by
We recognize that
[t]o infuse the critical right to counsel with meaning, we have held that IJs must provide aliens with reasonable time to locate counsel and permit counsel to prepare for the hearing. Absent a showing of clear abuse, we typically do not disturb an IJ’s discretionary decision not to continue a hearing. Nonetheless, we cannot allow a “myopic insistence upon expeditiousness” to render the right to counsel “an empty formality.”
No bright line guides our consideration of what constitutes reasonable time. The inquiry is fact-specific and thus varies from case to case. We pay particular attention to the realistic time necessary to obtain counsel; the time frame of the requests for counsel; the number of continuances; any barriers that frustrated a petitioner’s efforts to obtain counsel, such as being incarcerated or an inability to speak English; and whether the petitioner appears to be delaying in bad faith.
Biwot v. Gonzales, 403 F.3d 1094, 1098–99 (9th Cir. 2005) (citations omitted). Biwot, however, discussed the right to counsel in the context of ordinary removal proceedings where there are no strict statutory or regulatory deadlines by which the removal hearings must be heard. See id. at 1096–
Nor would an IJ violate the statutory entitlement to counsel by denying a non-citizen’s request for a continuance beyond the ten-day mark just so the non-citizen’s counsel can further prepare for the hearing. As we have noted, review hearings before the IJ “are abbreviated proceedings to ensure that an alien does not have a reasonable fear of returning to his or her country of origin.” Bartolome, 904 F.3d at 813. The limited purpose is for the IJ to “review . . . the record prepared by the asylum officer,” Alvarado-Herrera, 993 F.3d at 1191, and to assess whether the asylum officer erred in finding that the non-citizen’s fear was unreasonable. “Reasonable fear review hearings were not envisioned to be full evidentiary hearings.” Bartolome, 904 F.3d at 813. Only if the IJ deems the asylum officer’s negative fear determination to be incorrect—in other words, finds that the non-citizen’s fear may be reasonable—will the non-citizen become eligible for full withholding proceedings, which involve evidentiary hearings with the
We thus hold that this statutory entitlement to counsel does not mean that a non-citizen must have counsel before an IJ can proceed, but only that a non-citizen must at least be informed of the entitlement to counsel and have an opportunity to seek counsel within
VI
Applying our holdings to the petitions at hand, we determine that Orozco-Lopez’s statutory right to counsel was denied, but that Gonzalez’s was not. A non-citizen may waive the right to counsel, but such waiver must be knowing and voluntary. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). The IJ at Orozco-Lopez’s hearing did not mention the possibility of legal representation, so Orozco-Lopez could not possibly have waived it. Also, we have held that where a non-citizen’s statutory right to counsel has been denied, as in Orozco-Lopez’s case, he need not show prejudice. See Montes-Lopez v. Holder, 694 F.3d 1085, 1093–94 (9th Cir. 2012) (holding that a non-citizen “who shows that he has been denied the statutory right to be
In Gonzalez’s case, the IJ’s denial of his request for a continuance to find a lawyer did not amount to a denial of his statutory right to counsel. On April 29, 2020, the asylum officer issued his negative fear determination to Gonzalez, Gonzalez requested review by an IJ, the Notice of Referral to Immigration Judge was issued, and a list of free legal service providers was given to Gonzalez. The review hearing was held eight days later, on May 7, 2020. When Gonzalez asked for a continuance that day to keep searching for counsel, the IJ reasonably denied it on the grounds that the asylum officer’s “findings [were] filed . . . with the Court . . . a week ago” and that “[t]he law required the Court to hear these cases within ten days.” The asylum officer had given Gonzalez a list of legal service providers. During the eight days thereafter, Gonzalez had not retained counsel and, at the hearing, did not suggest when, if ever, he might be able to do so.5 Under these circumstances, the IJ reasonably proceeded with the review hearing.6 See
Finally, Gonzalez argues that the IJ misapplied the law governing CAT claims by failing to appreciate that mere acquiescence by the government in the past harm is sufficient. He testified that when he sought police assistance after his kidnapping, the police knew who his kidnappers were but refused to help and laughed instead. However, it seems that the harms he alleged did not rise to the level of torture. He was robbed in one incident and kidnapped for ransom in another. See
VII
In conclusion, we hold that non-citizens whose removal orders have been reinstated are statutorily entitled to counsel, at no expense to the government, at their reasonable fear hearings before an IJ. This statutory entitlement is cabined by
Orozco-Lopez’s petition, No. 20-70127, is GRANTED and REMANDED. Gonzalez’s petition, No. 20-71308, is DENIED.7
I acknowledge Montes-Lopez’s holding that the denial of an alien’s statutory right to counsel is per se reversible error, but for the reasons stated in the dissent in Hernandez v. Holder, 545 F. App’x 710 (9th Cir. 2013), I believe that the case “was wrongly decided, and we should revisit this decision en banc.” Id. at 712–13 (Ikuta, J., dissenting).