Biwot v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONA KIPKORIR BIWOT, 
Petitioner, No. 03-71456
v.
 Agency No.
A79-812-262
ALBERTO GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 16, 2005—Seattle, Washington
Filed April 14, 2005
Before: Betty Binns Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown
4177
4180 BIWOT v. GONZALES
COUNSEL
Ryan P. McBride, Heller Ehrman White & McAuliffe, Seat-
tle, Washington, for the petitioner.
Michele Y. F. Sarko and Virginia M. Lum, United States
Department of Justice, Office of Immigration Litigation, Civil
Division, Washington, DC, for the respondent.
OPINION
McKEOWN, Circuit Judge:
Jona Kipkorir Biwot (“Biwot”) petitions for review of a
Board of Immigration Appeals (“BIA”) order dismissing his
appeal from an order of removal. The issue we address is
whether Biwot was denied his right to counsel when the
Immigration Judge (“IJ”) allowed Biwot, who was incarcer-
ated and diligently seeking representation, only five working
days to obtain counsel. We conclude that Biwot was denied
his statutory right to counsel and, accordingly, we grant the
petition in part and remand to the BIA with instructions to
remand to the IJ.
BACKGROUND
Biwot, a citizen of Kenya, came to the United States on a
non-immigrant student visa in 1996 after winning a full schol-
arship to attend Northwest College in Kirkland, Washington.
BIWOT v. GONZALES 4181
In 1999, while he was still a student, Biwot was involved in
a dormitory brawl that resulted in a conviction for third-
degree assault. The conviction prompted the former Immigra-
tion and Naturalization Service (“INS”) to charge Biwot with
failure to maintain his student status.1
At his first removal hearing, on July 3, 2002, Biwot
appeared without counsel. When Biwot stated that he wanted
to obtain free representation, the IJ provided him with a list
of legal service providers and continued the hearing until July
9, 2002. On the day of the first hearing, Biwot was transferred
from one detention facility to another, which made it difficult
for him to contact the lawyers on the list. Biwot’s efforts to
find an attorney were further frustrated because the following
day was Thursday, July 4, a national holiday. This quirk of
timing left Biwot with only two business days—Friday, July
5, and Monday, July 8—to obtain an attorney before the next
hearing.
Biwot was unable to find an attorney before the second
hearing. He explained that he tried to get a lawyer, but the
legal service providers told him that the application process
took a week or two. Biwot asked the IJ for another two weeks,
but the IJ responded that he thought two weeks was excessive
and that he would continue the hearing until July 15, 2002.
On July 15, Biwot again appeared without counsel. The IJ
asked why Biwot did not have an attorney and Biwot said:
“Your Honor, I went back. I had written down the notice
immigration on my paper work. I talked to them about it and
they told me I’m supposed to put a name of lawyer.” The IJ
informed Biwot that the paperwork he had been filling out
was only for petitioners who already had lawyers. He then
said, “but if you’re looking for [a lawyer], okay. Well, you are
going to have to speak for yourself. You can continue your
1
The INS also charged Biwot with overstaying his visa, but that charge
was dropped.
4182 BIWOT v. GONZALES
efforts to find an attorney, but we’re going to have to go
ahead and take pleading on the [Notice to Appear].”
The IJ immediately began to question Biwot, who pre-
sented no evidence other than his responses to the IJ’s inqui-
ries. The IJ determined that Biwot was removable and ineligi-
ble for any relief. After announcing his ruling, the IJ told
Biwot that he could accept the decision as final or he could
appeal. Biwot said, “Your Honor, I accept the decision as
final because I cannot do anything right now.”
Biwot later appealed to the BIA. In his Notice of Appeal,
he alleged that “During my case hearing I never had a legal
representative because I was detained and took several days
to contact family. I didnt [sic] know how my constitutional
rights were conducted [sic].” After he filed his appeal, Biwot
wrote a letter informing the BIA that he had decided to apply
for asylum and asking for his case to be sent back to him so
he could work on his asylum application. When the BIA did
not respond, Biwot sent a second letter inquiring about the
status of the first letter. The BIA ignored both letters and dis-
missed the appeal on the ground that it lacked jurisdiction as
a result of Biwot’s statement that he would not appeal.
Biwot now petitions for review not only of the dismissal of
his appeal but of the BIA’s handling of his letters and consid-
eration of the merits of his claims for relief. We address only
the BIA’s dismissal of his appeal and the related claim of
denial of counsel.
DISCUSSION
I. JURISDICTION
As a threshold matter, we consider whether we have juris-
diction to address Biwot’s claim that he was denied the right
to counsel. The government contends that we do not because
BIWOT v. GONZALES 4183
Biwot failed to exhaust his administrative remedies. We dis-
agree.
Although we may not review a final order of removal
unless an alien has exhausted all administrative remedies, 8
U.S.C. § 1252(d)(1), Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004), Biwot raised the claim of denial of counsel
during the administrative process. He consistently asked the
IJ for a reasonable extension to obtain counsel. Biwot’s
Notice of Appeal to the BIA stated, “During my case hearing
I never had a legal representative because I was detained and
took several days to contact family. I didnt [sic] know how
my constitutional rights were conducted.” The Notice of
Appeal not only identified as an error Biwot’s lack of repre-
sentation, but it also alluded to the reason he was unable to
obtain a lawyer—lack of time. Because Biwot was pro se at
the time, we liberally construe his appeal, Barron, 358 F.3d
at 676 n.4, and conclude that the Notice of Appeal sufficiently
preserved the denial of counsel claim.
The basis of the BIA’s decision raises a second potential
barrier to our review. The BIA held that it lacked jurisdiction
because Biwot waived his right to appeal. See 8 C.F.R.
§ 1003.3(a)(1) (“A Notice of Appeal may not be filed by any
party who has waived appeal . . . .”); 8 C.F.R. § 1003.39
(“[T]he decision of the [IJ] becomes final upon waiver of
appeal . . . .”). Although the BIA is certainly correct in a
semantic sense, simply concluding that Biwot “waived” his
appeal begs the question whether the waiver was valid.
[1] A waiver of the right to appeal a removal order must be
“considered and intelligent” or it constitutes a deprivation of
the right to appeal and thus of the right to a meaningful oppor-
tunity for judicial review. United States v. Pallares-Galan,
359 F.3d 1088, 1096 (9th Cir. 2004) (quoting United States
v. Leon-Paz, 340 F.3d 1003, 1005 (9th Cir. 2003). Biwot’s
statement that he would not appeal can hardly be character-
ized as considered and intelligent. His comment that he was
4184 BIWOT v. GONZALES
accepting the IJ’s decision because he could “not do anything
right now” reveals a fundamental misunderstanding of the
effect of a waiver of appeal. Biwot was the victim of a double
disadvantage—he was under the misapprehension that he had
no choice but to waive his appeal and he labored under that
cloud because he had been denied counsel. Surely an attorney
would have disabused Biwot of any misconceptions about the
conclusive effect of his statement. Because the waiver of
appeal was not knowing and considered, the waiver does not
strip us of jurisdiction.
II. DENIAL OF THE RIGHT TO COUNSEL
[2] The right to counsel in immigration proceedings is
rooted in the Due Process Clause and codified at 8 U.S.C.
§ 1362 and 8 U.S.C. § 1229a(b)(4)(A). See Baltazar-Alcazar
v. INS, 386 F.3d 940, 944 (9th Cir. 2004); Tawadrus v. Ash-
croft, 364 F.3d 1099, 1103 (9th Cir. 2004) (“Although there
is no Sixth Amendment right to counsel in an immigration
hearing, Congress has recognized it among the rights stem-
ming from the Fifth Amendment guarantee of due process
that adhere to individuals that are the subject of removal pro-
ceedings.”). The regulations that effectuate the right to coun-
sel provide that “[t]he alien may be represented in
proceedings before an [IJ] by an attorney or other representa-
tive of his or her choice.” 8 C.F.R. § 1003.16(b).
[3] The Supreme Court has long recognized that because
deportation “visits a great hardship on the individual and
deprives him of the right to stay and live and work in this land
of freedom[,] . . . [m]eticulous care must be exercised lest the
procedure by which [an alien] is deprived of that liberty not
meet the essential standards of fairness.” Bridges v. Wixon,
326 U.S. 135, 154 (1945). One way we ensure that the “stan-
dards of fairness” are met is by guaranteeing that aliens have
the opportunity to be represented by counsel. The high stakes
of a removal proceeding and the maze of immigration rules
and regulations make evident the necessity of the right to
BIWOT v. GONZALES 4185
counsel. The proliferation of immigration laws and regula-
tions has aptly been called a labyrinth that only a lawyer
could navigate. Castro-O’Ryan v. INS, 847 F.2d 1307, 1312
(9th Cir. 1988).
[4] To 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.
Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir. 1985).
Absent a showing of clear abuse, we typically do not disturb
an IJ’s discretionary decision not to continue a hearing. None-
theless, we cannot allow a “myopic insistence upon expedi-
tiousness” to render the right to counsel “an empty formality.”
Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
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.
[5] In Rios-Berrios, we recognized that the petitioner’s
attempts to secure a lawyer were hampered by his incarcera-
tion, lack of English skills, and unfamiliarity with this coun-
try. 776 F.2d at 862-63. As if that were not enough, Rios-
Berrios had been moved over 3,000 miles from the only per-
son he knew in this country who might have helped him find
a lawyer. Id. Under these difficult circumstances, we held that
the IJ abused his discretion by granting only two continuances
amounting to two working days. Id. at 862.
[6] Biwot’s situation is comparable to the predicament
faced by Rios-Berrios. Both petitioners were incarcerated dur-
ing the time they tried to obtain counsel, a condition that
increases the difficulty of contacting prospective attorneys.
4186 BIWOT v. GONZALES
Both were given remarkably short periods of time to seek
lawyers: a total of two business days for Rios-Berrios and five
for Biwot.
We recognize that Biwot had advantages—such as a basic,
albeit certainly not fluent, knowledge of English and familiar-
ity with this country—that on the surface enhanced his ability
to obtain a lawyer. But these advantages were of little value
when circumscribed by an unrealistically short time to secure
counsel. The first continuance, which ironically was during
the Fourth of July holiday, was essentially meaningless in
terms of the practical ability to engage an attorney. Forcing an
incarcerated alien to find a lawyer over a holiday weekend is
an unreasonable burden.
[7] The second continuance, which was six days, provided
little practical relief. Biwot appeared at the second hearing on
Tuesday, July 9. The continuance meant that he had only
three business days—Wednesday to Friday—to find an attor-
ney to appear at the hearing on Monday, July 15. With tele-
phone tag, tight schedules, and impending deadlines, trying to
secure an attorney during this time period would be difficult
enough for an ordinary party. That Biwot was an incarcerated
immigrant compounded those circumstances and made
obtaining an attorney all but impossible in such a short inter-
val.
[8] Despite the difficulty of securing an attorney so quickly,
Biwot was as diligent in his attempts to procure representation
as a petitioner in his shoes could be. He twice contacted free
legal service providers and was in the midst of working with
them to process his request. But the IJ did nothing to
acknowledge Biwot’s efforts. Although Biwot was not trying
to delay his hearing inordinately—he requested a continuance
of only two weeks—the IJ refused his request. Nor is this case
one in which continuing the hearing would have been futile
or in which the IJ had done everything he reasonably could
to permit Biwot to obtain counsel. See Vides-Vides v. INS,
BIWOT v. GONZALES 4187
783 F.2d 1463, 1469-70 (9th Cir. 1986) (petitioner’s failure
to obtain counsel after four months and two continuances
made apparent that he was unable to secure counsel at his
own expense). Far from being futile, the record before the IJ
made apparent that a realistic continuance was warranted to
allow Biwot to obtain an attorney. Under these circumstances,
denial of a continuance was an abuse of discretion because it
was tantamount to denial of counsel.
Biwot’s denial of counsel is not cured by a purported
waiver of the right. We have reiterated many times that an
alien cannot appear pro se without a knowing and voluntary
waiver of the right to counsel. See, e.g., Velasquez Espinosa
v. INS, 404 F.2d 544, 546 (9th Cir. 1968); Tawadrus, 364
F.3d at 1103. A waiver is generally not valid unless the IJ
expressly asks the petitioner whether he wishes to continue
without a lawyer and receives a “knowing and voluntary affir-
mative response.” Tawadrus, 364 F.3d at 1103. If the peti-
tioner does not affirmatively waive his right to counsel, the IJ
must inquire whether there is good cause to grant petitioner
more time to obtain counsel. Reyes-Palacios v. INS, 836 F.2d
1154, 1155-56 (9th Cir. 1988) (per curiam).
[9] At the final hearing, the IJ issued a confounding direc-
tive: He told Biwot that he must plead and speak for himself,
but Biwot could continue seeking an attorney. The IJ neither
asked Biwot whether he wished to proceed without an attor-
ney nor determined whether there was good cause to grant
Biwot more time to obtain counsel. Biwot’s compliance with
the IJ’s exhortation to proceed on his own can hardly be
viewed as an effective waiver. See Colindres-Aguilar v. INS,
819 F.2d 259, 261 (9th Cir. 1987) (holding that when the
record indicates a petitioner’s desire for counsel, the IJ cannot
assume that his silence implies a waiver of his right to repre-
sentation). Although IJs may not be required to undertake
Herculean efforts to afford the right to counsel, at a minimum
they must inquire whether the petitioner wishes counsel,
determine a reasonable period for obtaining counsel, and
4188 BIWOT v. GONZALES
assess whether any waiver of counsel is knowing and volun-
tary. These fundamental steps are absent in Biwot’s case.
III. PREJUDICE ANALYSIS
[10] Because Biwot was prejudiced by the denial of coun-
sel, we again leave unanswered the question whether a peti-
tioner must show prejudice when he has been denied the right
to counsel in removal proceedings. See Baltazar-Alcazar, 386
F.3d at 947 (collecting Ninth Circuit cases that demonstrate
the unsettled nature of the prejudice inquiry). To establish
prejudice, Biwot must show only that his rights were violated
“in a manner so as potentially to affect the outcome of the
proceedings.” Campos-Sanchez v. INS, 164 F.3d 448, 450
(9th Cir. 1999) (quoting United States v. Cerda-Pena, 799
F.2d 1374, 1379 (9th Cir. 1986)). Biwot easily clears this hur-
dle. With an attorney, he would not have been forced to pro-
ceed pro se, to present a case with no evidence, to answer the
IJ’s inquiries without any idea of their legal significance, or
to purport unwittingly to waive his appeal.
Biwot requested that we address the merits of his claims for
asylum and withholding of removal and consider the proce-
dural posture of the letters he submitted to the BIA. We
decline his invitation. In Biwot’s letters to the BIA, he sought
remand of his case to the IJ, which is the very outcome of our
decision, albeit on different grounds. As to the merits of his
claims for relief, we believe the best course is to permit the
agency to consider in the first instance the procedural and
substantive aspects of Biwot’s claims.
[11] We GRANT the petition as to the denial of counsel
claim and REMAND with instructions to remand to the IJ to
provide Biwot with reasonable time to obtain counsel, to pres-
ent evidence, and to make such claims as are available. We
DISMISS the petition as to the claims for review of Biwot’s
letters to the BIA and for consideration of the application for
relief.