Montes-Lopez v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO MONTES-LOPEZ, 
Petitioner, No. 05-76297
v.
 Agency No.
A95-487-944
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 20, 2007—San Francisco, California
Filed May 17, 2007
Before: Alfred T. Goodwin, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Thomas
5823
5824 MONTES-LOPEZ v. GONZALES
COUNSEL
Robert B. Jobe and Aruna Sury, Law Office of Robert B.
Jobe, San Francisco, California, for the petitioner.
MONTES-LOPEZ v. GONZALES 5825
Peter D. Keisler, Mark C. Walters, and Jennifer L. Lightbody,
Office of Immigration Litigation, Civil Division, U.S. Depart-
ment of Justice, Washington, D.C., for the respondent.
OPINION
THOMAS, Circuit Judge:
In this appeal we consider whether the Board of Immigra-
tion Appeals (“BIA”) erred by failing to address petitioner’s
claim that he was denied his right to counsel at proceedings
before the immigration judge (“IJ”). We conclude that the
BIA so erred and remand for consideration of petitioner’s
claim.
I
Mario Montes-Lopez, also known as Mario Morales-
Abrego, is a native and citizen of El Salvador who entered the
United States without inspection in 2002. When he crossed
the border, he was seventeen years old. Soon after Montes-
Lopez entered the United States, the Department of Homeland
Security instituted removal proceedings against Montes-
Lopez. He conceded removability and applied for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”).
Between December 10, 2002, Montes-Lopez’s first immi-
gration hearing at which he appeared pro se, and May 12,
2004, his merits hearing which was also held pro se, he expe-
rienced a series of difficulties in obtaining representation. His
first attorney withdrew, stating that Montes-Lopez had
decided to represent himself. He then retained the services of
a pro bono attorney, to be later replaced by attorney Otto Peña
who prepared his application for asylum, withholding of
removal, and protection under CAT. Throughout this time,
5826 MONTES-LOPEZ v. GONZALES
Montes-Lopez was granted continuances to afford him repre-
sentation.
On May 12, 2004, Montes-Lopez appeared without Peña,
but with a letter from Peña explaining that Peña was unable
to appear because his license had been suspended until
August 2004. The IJ proceeded to exhaustively interrogate
Montes-Lopez on the precise time he received the letter and
on when he last spoke with Peña, presumably to discern when
Montes-Lopez discovered that Peña would be unable to repre-
sent him. Based on what the IJ thought to be inconsistent tes-
timony, the IJ concluded that Montes-Lopez had lied
regarding his communications with Peña and refused to grant
him a continuance. The hearing proceeded pro se. As opposed
to the lengthy questioning regarding Peña’s letter, the IJ’s col-
loquy on Montes-Lopez’s basis for asylum, withholding, and
CAT protection was relatively limited. The IJ denied the
applications, noting that Montes-Lopez was an incredible wit-
ness who attempted to delay the proceedings.
On appeal to the BIA, Montes-Lopez asserted but one
claim: that his statutory and constitutional right to counsel
was violated. The BIA summarily affirmed the IJ’s decision
pursuant to 8 C.F.R. § 1003.1(e)(4), thereby failing to address
Montes-Lopez’s claim that his right to counsel was deprived.
The BIA decision stated in full only that:
The Board affirms, without opinion, the results of
the decision below. The decision below is, therefore,
the final agency determination. See 8 C.F.R.
§ 1003.1(e)(4).
II
We review de novo questions of law and claims of due pro-
cess violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,
1107 (9th Cir. 2003), and review for abuse of discretion the
IJ’s decision not to continue a hearing, Biwot v. Gonzales, 403
MONTES-LOPEZ v. GONZALES 5827
F.3d 1094, 1099 (9th Cir. 2005). However, we are not permit-
ted to decide a claim that the immigration court has not con-
sidered in the first instance. INS v. Ventura, 537 U.S. 12, 16
(2002) (per curiam) (oft referred to as the “ordinary remand
rule”); see also Barroso v. Gonzales, 429 F.3d 1195, 1208-
1209 (9th Cir. 2005) (“Although it appears that Barroso may
well have been denied his statutory right to counsel, it is not
for us to determine this question in the first instance.”).
[1] “We think it goes without saying that IJs and the BIA
are not free to ignore arguments raised by a petitioner.”
Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).
This basic tenet is of particular force where a petitioner argues
on appeal to the BIA that the IJ proceedings were procedur-
ally infirm, such as in claims of denial of procedural due pro-
cess or the denial of the statutory right to counsel. Under the
ordinary remand rule established in INS v. Ventura and the
general requirement of administrative exhaustion, see Barron
v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004), we usually
decline to hear the claim unless the BIA does so in the first
instance. When a petitioner raises a claim based on a pur-
ported procedural defect of the proceedings before the IJ, the
only administrative entity capable of independently address-
ing that claim is the BIA. Here, by summarily affirming the
IJ’s decision, the BIA ignored—and denied review of—
Montes-Lopez’s claim that his right to counsel was violated
by the IJ. See 8 C.F.R. § 1003.1(e)(4) (providing a mechanism
for the BIA to affirm the IJ’s decision without opinion). The
BIA committed error in doing so.
[2] For these reasons, we conclude that the BIA errs when
it fails on appeal to consider and decide claims that the IJ pro-
ceedings suffered from procedural irregularity. We therefore
remand to the BIA for determination of the claim that
Montes-Lopez’s right to counsel was violated at the proceed-
ings before the IJ.
PETITION GRANTED; REMANDED.