Mendoza-Mazariegos v. Mukasey ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE MARIO MENDOZA- 
MAZARIEGOS,
No. 05-70163
Petitioner,
v.  Agency No.
A91-973-031
MICHAEL B. MUKASEY,* Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 12, 2007—Pasadena, California
Filed December 6, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Pregerson
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
16013
16016 MENDOZA-MAZARIEGOS v. MUKASEY
COUNSEL
Mario Acosta Jr. and Elsa Martinez, Martinez Goldsby &
Associates, Los Angeles, California, for the petitioner.
Philip Lewis, Matthew Kline, Randall Whattoff, and Victor
Jih, O’Melveny & Myers, Los Angeles, California, pro bono
amicus curiae counsel for the petitioner.
Carol Federighi, Office of Immigration Litigation, U.S.
Department of Justice, Washington, D.C., for the respondent.
MENDOZA-MAZARIEGOS v. MUKASEY 16017
OPINION
PREGERSON, Circuit Judge:
Jorge Mario Mendoza-Mazariegos (“Mendoza”) petitions
for review of the Board of Immigration Appeals (“BIA”)
order denying his application for cancellation of removal
under 8 U.S.C. § 1229b(b). We grant the petition for review
on the ground that Mendoza was denied his statutory right to
counsel, and we remand for further proceedings.
I. Factual and Procedural Background
Mendoza is a native and citizen of Guatemala. He entered
the United States without inspection in February 1985, and
has since resided in the United States. Mendoza and his wife
Beatriz now have three children, ages four, seven, and eleven,
who are United States citizens. The family resides in Palm-
dale, California, where Mendoza works for a church.
On July 20, 1998, the government placed Mendoza in
removal proceedings, charging him with being an alien pres-
ent in the United States without inspection in violation of 8
U.S.C. § 1182(a)(6)(A)(i). The Immigration and Naturaliza-
tion Service1 (“INS”) detained Mendoza at a detention center
in Florence, Arizona. Mendoza first appeared before Immi-
gration Judge (“IJ”) Scott Jeffries in Arizona on August 7,
1998. Mendoza appeared pro se, declined to be represented by
counsel, and conceded his removability. Recognizing that
Mendoza was a candidate for cancellation of removal, the
government attorney suggested that the IJ inform Mendoza of
available relief. The IJ gave Mendoza a cancellation of
removal application form and instructed Mendoza to submit
the form by the next scheduled hearing.
1
On March 1, 2003, the INS was abolished and its functions transferred
to the Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (2002), 6 U.S.C.
§§ 101-557.
16018 MENDOZA-MAZARIEGOS v. MUKASEY
When the hearing resumed in Arizona on August 17, 1998,
the IJ accepted Mendoza’s submission of the cancellation of
removal application. The IJ then set the date of the merits
hearing and instructed Mendoza to submit documentation in
support of his application, including the birth certificate for
his son (Mendoza’s other children had not yet been born).
Despite being detained in Arizona at the time, Mendoza
obtained the documentary evidence from California and sub-
mitted it according to the IJ’s instructions.
Mendoza appeared in Arizona again on September 8, 1998.
At that hearing, IJ Scott Jeffries noted that he had given Men-
doza the “wrong application form to fill out.” The IJ then
gave Mendoza the correct application form. At the govern-
ment’s suggestion, the IJ also informed Mendoza that he
could post a bond to be released from custody and have his
case transferred to California. The IJ told Mendoza to keep
the court aware of his current address so that he could be noti-
fied of the next hearing. Mendoza posted bond, was released,
and his case was transferred to California. He complied with
the IJ’s instruction by timely informing the court of his cur-
rent address.
Following the change of venue, Mendoza appeared before
Los Angeles IJ Thomas Y. K. Fong on or about September
24, 1998. Mendoza appeared with a retained attorney, Steven
Paek. At the hearing, attorney Paek reiterated Mendoza’s wish
to apply for cancellation of removal, but stated that he was not
prepared to file the application. When the hearing resumed on
February 11, 1999, the IJ confirmed receipt of Mendoza’s
application for cancellation of removal and reset the matter
for a merits hearing on August 9, 2000.
Thereafter, Mendoza’s case was repeatedly postponed, both
because of conflicts on the IJ’s calendar and for attorney
Paek’s benefit. Before the first scheduled merits hearing on
August 9, 2000, the IJ advised the parties that he needed to
reschedule because of a conflict on his calendar. He asked for
MENDOZA-MAZARIEGOS v. MUKASEY 16019
the parties to convene on July 3, 2000 to set a new hearing
date. Paek filed a motion informing the court that he was
unable to attend the July 3rd hearing because of a Fourth of
July celebration with his family. The IJ stated at the hearing
that he “certainly [could] understand that because the court
did advance the matter.” Mendoza appeared alone at the hear-
ing and the parties agreed that the merits hearing would be
rescheduled for October 10, 2001. On October 10, 2001, both
Mendoza and attorney Paek appeared, but a priority case
pushed Mendoza’s hearing out of its scheduled time slot.
Attorney Paek apparently was unable to wait for the case to
be heard, and the IJ informed him that rescheduling was “not
a problem.” The IJ informed the parties that “unfortunately
because of my crowded calendar almost two years is going to
occur between your next hearing and today’s date.” The hear-
ing was continued to September 18, 2003.
At each of these hearings, IJ Fong instructed attorney Paek
to submit all supporting documents at least two weeks before
the next scheduled hearing date. Each time, the IJ told attor-
ney Paek that he needed to conduct a criminal record check
so that the IJ could verify Mendoza’s eligibility for cancella-
tion of removal.2 The IJ also told Mendoza at each hearing
that he was responsible for showing up at the next hearing
ready to present his case and for informing the court of any
change of address, regardless of whether he had an attorney.
On September 18, 2003, Mendoza’s long-delayed hearing
before IJ Fong resumed. Before the hearing date, Mendoza
had tried to contact Paek, but was unable to do so. Because
2
At the July 3, 2000 hearing which Paek did not attend, the IJ told Men-
doza that “at the next hearing [Paek] will be responsible for you and him
to present the evidence necessary to prove your case. And that includes an
updated and current criminal record check to insure that you do not have
a criminal record that would bar you or that at least I know your criminal
activity, if any. He will need to provide me the evidence to prove your
legal residence in this country, your good character, the equities and claim
that you want me to consider in your favor.”
16020 MENDOZA-MAZARIEGOS v. MUKASEY
Mendoza was worried that Paek might not show up, he
appeared with another attorney, Nana Boachie-Yiadom
(“Boachie-Yiadom”), who he had retained the day before.
Attorney Paek did not appear at the hearing.
When the hearing began, the IJ questioned Mendoza about
why he waited until the day before his merits hearing to retain
new counsel.3 Mendoza attempted to explain that he had been
unable to reach attorney Paek before the hearing, in part
because a notary who “prepared” the case would not let him
talk to attorney Paek.4 Before Mendoza could offer a full
explanation, the IJ told him that attorney Paek had come to
the IJ’s office early that morning with a different story.5 The
IJ told Mendoza that
Mr. Paek came in early this morning indicating that
he had been trying to get ahold of you and your tele-
phone number had been discontinued — discon-
nected, you didn’t respond to his notices and letters.
Now, separate and apart from that notary who may
have been assisting him, why didn’t you respond to
3
During the hearing, Mendoza spoke in Spanish, communicating with
the IJ through an interpreter.
4
The immigration system in this country is plagued with “notarios” who
prey on uneducated immigrants. See Barroso v. Gonzales, 429 F.3d 1195,
1197 n.2 (9th Cir. 2005) (“Latino immigrants often mistakenly believe that
‘notarios’ are lawyers because in many Latin American countries, notarios
are ‘a select class of elite attorneys subject to rigorous examinations, regu-
lation, and codes of professional responsibility.’ ” (citation omitted)). In
this country, by contrast, notaries sometimes act as gatekeepers for “ap-
pearance attorneys.” These appearance attorneys are known to represent
their clients in immigration court with limited or no knowledge of their
client’s cases, and some of these attorneys are not in good standing with
their local bar associations.
5
The exact details of the IJ’s ex parte conversation with attorney Paek
are not available because the conversation occurred off the record.
Regardless, such a conversation, occurring without Mendoza’s knowledge,
appears to be a violation of Paek’s ethical obligations, as this conversation
clearly damaged Mendoza’s chances for relief.
MENDOZA-MAZARIEGOS v. MUKASEY 16021
his notices to prepare? Because he was worried, he
was concerned that you wouldn’t be here and that
you weren’t prepared because you didn’t respond to
his indications to come in to prepare the case.
Accepting attorney Paek’s allegations as true, the IJ ques-
tioned Mendoza about his alleged lack of cooperation with
attorney Paek. Mendoza’s attempts to explain himself and
answer the IJ’s questions were fruitless:
Mendoza: The reason, Your Honor, the people in
charge of his office would not allow me
to get in touch directly with the attorney.
IJ: . . . No, no, no, hold it. Mr. Paek told me
he tried to a get ahold of you directly.
Why didn’t you respond to his inquiries,
sir? I’m not interested in these notaries,
these unnamed notaries that you claim
got in the way. For one thing, sir, who
hired these notaries, you, right?
Mendoza: Yes.
IJ: Then, sir, you know the people you hire
you can fire, you’re the employer not the
employee. And sir, nobody unless the guy
was holding you physically will stop you
from making a phone call or walking
down to your attorney’s office. You’re
telling me this notary stopped you from
going to your attorney? Stopped you from
making a phone call? Stopped you from
responding to your attorney’s letters?
Mendoza: They said that any question that I had it
had to be to them.
16022 MENDOZA-MAZARIEGOS v. MUKASEY
IJ: And, sir, they didn’t respond to your let-
ters did they?
Mendoza: They never sent me any letter whatso-
ever.
IJ: Okay. Well, sir, how come you didn’t
respond to your attorney’s letters, the
ones he sent you? Why would you listen
to a non-attorney and ignore your attor-
ney’s pleas and requests for you to come
in and prepare your case, sir?
Mendoza: I never received a letter.
The IJ then briefly adjourned the case and sent Mendoza and
attorney Boachie-Yiadom to locate Paek. In a sworn declaration6
Mendoza attached to his BIA appeal, Mendoza explained that:
I met my lawyer [Paek] at the door of the Immigra-
tion Court when I was leaving the court room to go
look for him. He was waiting by the door, and he
took [me] to the side. He said, you have to say that
I have been trying to call you, and that you failed to
return my calls; and that the lawyer had mailed
notices about the court hearing, and that I failed to
take action. I told him, what are you crazy sir; I am
the one who has been trying to contact you, and I am
the one who has been calling you to remind you
about this hearing. The lawyer said, “If you don’t
swear to those things, then I am not coming into the
court with you.” I said sir; you are asking me to lie
before the court aren’t you. He said “if you don’t say
those things, then I won’t go into the courtroom with
6
Mendoza’s sworn declaration was part of a State Bar complaint he
brought against Paek.
MENDOZA-MAZARIEGOS v. MUKASEY 16023
you.[”] I really couldn’t believe what I heard from a
licensed [attorney].
When Mendoza returned to the IJ and explained what had
happened outside, the IJ ordered Mendoza to go outside again
and find Paek.7 Mendoza was unable to find attorney Paek.
When the hearing resumed, the IJ, according to Mendoza,
was “steaming mad.” Attorney Boachie-Yiadom told the IJ
that he wished to represent Mendoza. However, attorney
Boachie-Yiadom requested “a short continuance” to familiar-
ize himself with Mendoza’s case, explaining that he had
obtained Mendoza’s file just before the hearing. The IJ told
attorney Boachie-Yiadom that there would be no continuance.
The IJ told Boachie-Yiadom that he came “a dollar short and
too late,” and that Mendoza was “not going to get another
continuance, not any way for someone to walk in on the trial
date with a brand new attorney and then claim he needs a con-
tinuance. Not happening, counsel.” The IJ then urged attorney
Boachie-Yiadom to withdraw, telling attorney Boachie-
Yiadom that if he withdrew, Mendoza would proceed pro se.
Unable to adequately represent a client whose file he had just
received, attorney Boachie-Yiadom withdrew. Boachie-
Yiadom stayed in the courtroom for the duration of the pro-
ceedings, but only as an observer.
The IJ then engaged in an extended monologue, covering
five pages in the transcript, lecturing Mendoza for not
responding to attorney Paek’s inquiries and for not replacing
attorney Paek sooner. Mendoza was not given much of a
chance to speak, but was able to explain that “[i]t was very
difficult having lost all that money they charged me,” suggest-
ing that he was holding out hope that he could talk to attorney
Paek because he could not afford another attorney. As the
7
The IJ’s request for Mendoza to again go outside and find Paek for the
second time is described in Mendoza’s sworn declaration, but appears to
have happened off the record.
16024 MENDOZA-MAZARIEGOS v. MUKASEY
admonishment continued, the IJ noted that, due to his busy
calendar, another continuance would push Mendoza’s hearing
forward two years, into 2005.
In response to the IJ’s badgering, Mendoza eventually apol-
ogetically acknowledged his “negligence for not getting in
touch with an attorney.” The IJ then denied the request for a
continuance and proceeded with the merits hearing. The IJ’s
consideration of the merits of Mendoza’s cancellation appli-
cation lasted mere minutes. From the time that Mendoza
swore that his application was accurate to the time the IJ told
Mendoza that “I can’t grant your claim,” Mendoza spoke
about thirty words, often “no, your honor” or “yes, your
honor.” The IJ did not question Mendoza about the hardship
to his U.S. citizen children. In denying Mendoza’s claim, the
IJ explained that, without a criminal record check, he could
not verify whether any statutory bars applied and whether
Mendoza had been a person of good moral character. The IJ
granted Mendoza voluntary departure.8
Mendoza appealed to the BIA. Mendoza challenged the IJ’s
denial of a continuance and the denial of relief, and also
asserted ineffective assistance of counsel. Mendoza supple-
mented the record with a copy of a State Bar complaint and
the accompanying declaration he had filed against attorney
Paek on September 24, 2003.
On December 9, 2003, the BIA adopted and affirmed the
IJ’s decision. The BIA affirmed the IJ’s decision to deny the
continuance, noting that “a two-year continuance is an ample
period of time to prepare for a merits hearing on a cancella-
tion application.” The BIA also rejected Mendoza’s ineffec-
tive assistance of counsel claim, concluding that Mendoza
failed to cooperate with his counsel.
8
When questioned about his criminal record, Mendoza testified under
oath that he had never been arrested or convicted of a crime in the United
States. The government does not dispute this assertion.
MENDOZA-MAZARIEGOS v. MUKASEY 16025
This appeal followed. Mendoza petitions for review, argu-
ing the denial of his statutory right to counsel, ineffective
assistance of counsel, and the denial of his due process right
to a full and fair hearing.
II. Standard of Review
We review de novo the BIA’s interpretation of questions of
law, such as whether the statutory right to counsel was vio-
lated. See Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n.1
(9th Cir. 2007). We review for abuse of discretion an IJ’s
decision to deny a request for continuance. See Montes-Lopez
v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007). Because the
BIA adopted and affirmed the decision of the IJ, we review
the IJ’s decision as well. See Abebe v. Gonzales, 432 F.3d
1037, 1039 (9th Cir. 2005).
III. Denial of Right to Counsel
[1] 8 U.S.C. § 1362 guarantees an alien in immigration pro-
ceedings a right to counsel of his choice at his own expense.
“[F]or an applicant to appear pro se, there must be a knowing
and voluntary waiver of the right to counsel.” Tawadrus v.
Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citation omit-
ted). To obtain a knowing and voluntary waiver of the statu-
tory right to counsel, the IJ must “(1) inquire specifically as
to whether petitioner wishes to continue without a lawyer; and
(2) receive a knowing and voluntary affirmative response.” Id.(internal citations omitted).
[2] Therefore, we first address whether Mendoza explicitly
waived his right to counsel. Clearly, he did not. The IJ did not
inquire as to whether Mendoza was willing to proceed pro se.
It was clear that he did not want to proceed pro se from the
fact that he brought another attorney to the hearing.
We next discuss whether, despite the absence of a waiver
of the right to counsel, the IJ could nonetheless refuse to grant
16026 MENDOZA-MAZARIEGOS v. MUKASEY
a continuance for Mendoza’s new attorney to familiarize him-
self with the case. In Hernandez-Gil v. Gonzales, 476 F.3d
803 (9th Cir. 2007), we recently addressed whether the statu-
tory right to counsel is violated when an IJ refuses to grant a
continuance after the petitioner’s retained counsel does not
appear at the merits hearing. We acknowledged that “[a]bsent
a showing of clear abuse, we typically do not disturb an IJ’s
discretionary decision not to continue a hearing.” Id. at 807(quoting Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir.
2005)). However, we also noted that “we cannot allow a myo-
pic insistence upon expeditiousness to render the right to
counsel an empty formality.” Id. at 807-08 (citations and
internal quotation marks omitted). After balancing these com-
peting interests, we concluded that “[w]hen an immigrant has
engaged counsel and the IJ is aware of the representation, if
counsel fails to appear, the IJ must take reasonable steps to
ensure that the immigrant’s statutory right to counsel is hon-
ored.” Id. at 808.
Thus, the question here is whether the IJ took reasonable
steps to ensure that Mendoza’s statutory right to counsel was
honored. In Biwot v. Gonzales, we held that analysis of an IJ’s
refusal to grant a continuance requires individualized inquiry.
We explained that:
No bright line guides our consideration of what con-
stitutes reasonable time [to find an attorney]. 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.
MENDOZA-MAZARIEGOS v. MUKASEY 16027
Biwot, 403 F.3d at 1099.9
Mendoza did not speak English, was not seeking to delay
the proceedings in bad faith, and was only seeking a short
continuance. Despite these factors weighing in Mendoza’s
favor, IJ Fong denied the continuance. The IJ’s decision
explained that he denied Mendoza the benefit of a short con-
tinuance because Mendoza had “been given more than four
years to present his case” and that he had “failed to appear to
prosecute his claim.” This harsh conclusion is not supported
by the record. The IJ’s decision, later adopted and affirmed by
the BIA, was instead based on three erroneous conclusions.
First, the IJ inaccurately blamed Mendoza for the fact that his
case had previously been continued multiple times. Second,
based in large part on his ex parte conversation with attorney
Paek, the IJ concluded that Mendoza was negligent in pursu-
ing his case and in deciding to hire a new lawyer just before
the hearing. And finally, the IJ’s decision to refuse the contin-
uance was undoubtedly driven by the reality that the short
continuance attorney Boachie-Yiadom requested would have
required a two-year delay. We discuss below why none of
these three reasons provided the IJ with justification to deny
the continuance and require Mendoza to proceed pro se.
1. Confusion Over Previous Delays
Both the IJ and the BIA inaccurately summarized the
events which led to the lengthy delays in the case. In his deci-
sion, the IJ found that Mendoza “has been given a number of
continuances, most, if not all, for his benefit because he was
not ready to proceed.” In fact, as the chart below illustrates,
none of the previously granted continuances were requested
9
Biwot dealt with a petitioner attempting to find an attorney for the first
time. Here, Mendoza, like the petitioner in Hernandez-Gil, did have an
attorney, but his attorney did not show up to the scheduled hearing.
Though these situations are different, we believe that a similar fact-
specific approach is appropriate.
16028 MENDOZA-MAZARIEGOS v. MUKASEY
by Mendoza because he was unprepared. Instead, the continu-
ances were a result of, among other things, a mistake by the
Arizona IJ, a change in venue to Los Angeles, a conflict on
attorney Paek’s calendar, a conflict on the IJ’s calendar, and
a priority case that took precedence over Mendoza’s case.
Date of Details of Reason for
Proceeding Proceeding Continuance
Aug. 7, 1998 Mendoza conceded For preparation of
removability cancellation of
removal application
at suggestion of
government attorney
Aug. 17, 1998 IJ accepted For merits hearing
cancellation of
removal application
Sept. 8, 1998 IJ discovered he had For preparation of
given Mendoza the correct form
wrong form
Dec. 1, 1998 Initial hearing after For Paek to file the
case transferred to cancellation of
Los Angeles removal application
Feb. 11, 1999 IJ accepted For merits hearing
cancellation of
removal application
and scheduled merits
hearing for Aug. 9th,
2000
MENDOZA-MAZARIEGOS v. MUKASEY 16029
July 3, 2000 Scheduling hearing. Rescheduling
Attorney Paek did required because of
not show up because IJ’s conflict with
of his family’s Aug. 9th, 2000 date
Fourth of July
celebration. Merits
hearing scheduled
for first available
date, Oct. 10, 2001
Oct. 10, 2001 Rescheduled merits Priority case took
hearing for first precedence, attorney
available date, Sept. Paek unable to wait
18, 2003 for that case to end10
Sept. 18, 2003 Merits hearing Continuance denied
conducted
[3] The above chart illustrates that, contrary to the IJ’s
assertion that Mendoza was to blame for the lengthy delays,
Mendoza timely complied with the instructions he received
from the IJs.11 He appeared at every hearing at the appointed
time. He filed his initial application for cancellation of
removal while being detained in Arizona, and even gathered
10
The IJ’s decision stated that on October 10, 2001, attorney Paek “re-
quested a continuance not only orally but in writing indicating that they
were not prepared to go forward.” At oral argument in front of this court
on July 12, 2007, the government acknowledged that this statement was
not accurate. The October 10, 2001 transcript reflects that the case was
ready to proceed but that attorney Paek requested a continuance because
a priority case had to be heard first and he was not able to wait for it to
be heard. The IJ’s response to Paek’s request was “[a]ll right. Not a prob-
lem, counsel. We’ll reset this matter then pursuant to your request.” The
matter was then set for hearing on September 18, 2003, almost two years
later.
11
The IJ faulted Mendoza for not completing his criminal record check,
despite the fact that, as mentioned above, the IJ made it clear at the previ-
ous hearings that attorney Paek, not Mendoza, was responsible for this
task.
16030 MENDOZA-MAZARIEGOS v. MUKASEY
supplemental information from his family in California during
his detention. Mendoza also, as instructed by the court, duti-
fully notified the court of his changed address.
[4] Thus, when Mendoza was deserted by attorney Paek,
his retained counsel, and requested a brief continuance so that
his newly hired attorney Boachie-Yiadom could prepare to
represent him, he was not requesting “another” continuance,
as the IJ suggested. Rather, having found himself abandoned
by his retained attorney, Mendoza was trying to preserve his
right to counsel.
2. Mendoza’s Decision to Hire a New Lawyer
The IJ was clearly upset with Mendoza for his decision to
hire a new lawyer just one day before the merits hearing. At
the hearing, the IJ criticized Mendoza for “just let[ting] the
thing ride for almost two years” and stated that “I can’t under-
stand why you would sit around for almost two years and then
at the last minute say, gee, the people I hired to help me didn’t
do their job, I better go get a new one.” The IJ also made clear
at the hearing that his frustration with Mendoza’s decision
was driven in no small part by attorney Paek’s ex parte com-
ments that morning.12 He told Mendoza that “more impor-
tantly, sir, as I stated, Mr. Paek came in early this morning
saying, Judge, I don’t know whether my client is going to
show up because I se[n]t him letters and he hasn’t responded
to me.” (emphasis added).
12
The fact that attorney Paek did not appear on the record raises ques-
tions about Paek’s credibility. In light of the serious accusations attorney
Paek made against the client he was retained to represent, the IJ should
have ordered Paek to attend the merits hearing. Having attorney Paek reit-
erate his accusations during the hearing would have ensured that they were
made on the record. More importantly, it would have given Mendoza the
opportunity to refute the accusations and request that attorney Paek offer
some evidence (such as copies of the letters that he allegedly sent) of his
attempts to contact Mendoza.
MENDOZA-MAZARIEGOS v. MUKASEY 16031
It is not clear why the IJ would believe, without further
inquiry, attorney Paek’s accusations that Mendoza, facing
deportation and permanent separation from his family, com-
pletely failed to prepare his case by ignoring his lawyer’s
attempts to contact him for his merits hearing.13 In his final
decision, the IJ did not mention his ex parte, off-the-record
conversation with attorney Paek. Instead, IJ Fong relied on his
conclusion that Mendoza “ultimately admitted it was his neg-
ligence and failure to prepare and could not give an excuse or
reason for another continuance.”
[5] This conclusion is not supported by the record. The IJ’s
statement that Mendoza “could not give an excuse or reason
for another continuance” is flatly contradicted by the record.
In fact, much of the hearing concerned Mendoza’s explana-
tion about why he had to retain a new attorney.14 Further, the
IJ’s statement that Mendoza “ultimately admitted” his negli-
gence relies on a comment made by Mendoza that does not
deserve significant weight. The IJ’s conclusion was based on
Mendoza’s statement that “I acknowledge before you that a
great part of all this has been negligence for not getting in
touch with an attorney. I think I don’t deserve an opportunity.
Whatever your decision is I will abide by that.”
Mendoza made this statement after the IJ had just engaged
in an extended monologue lecturing Mendoza for failing to
hire a new attorney sooner. It also directly followed the IJ’s
interrogation regarding whether Mendoza had “good cause”
for a continuance. In this discussion of “good cause,” Men-
doza clearly did not understand the questions or the legal con-
13
The IJ made no adverse credibility finding in his decision. Thus, we
must assume that the IJ found Mendoza credible, and accept Mendoza’s
sworn testimony as true. See Recinos de Leon v. Gonzales, 400 F.3d 1185,
1191 (9th Cir. 2005) (“[I]n the absence of a clear adverse credibility find-
ing, we take the petitioner’s testimony to be true.”).
14
There is no mention in the IJ’s decision of Mendoza’s claim that attor-
ney Paek deserted him, which seems strange given the central role it
played in Mendoza’s request for the continuance.
16032 MENDOZA-MAZARIEGOS v. MUKASEY
cept of “good cause.” To the extent that Mendoza understood
the concept, he seemed to have confused good cause for the
continuance with good cause for granting his cancellation
application. Despite the fact that Mendoza was unfamiliar
with both the language and the legal system, proceeding pro
se with the help of an interpreter, the IJ showed no patience
for Mendoza’s attempts to explain why he had good cause,
immediately cutting Mendoza off each time he tried to talk:
IJ: Now, what are the grounds that you
believe are good cause for granting you
another two year continuance?
Mendoza: I have an old child, Your Honor.
IJ: No, sir, that’s not a ground. That’s
already in the record.
Mendoza: May I finish?
IJ: You mean if I wait long enough the child
will get even older and then I —
Mendoza: May I — may I —
IJ: — should grant it again?
Mendoza: — finish, Your Honor?
IJ: No. No, sir, that’s not a good ground.
You can forget that one.
After the IJ had lectured Mendoza on his failure to fire his
attorney and after Mendoza had that exchange regarding
“good cause,” Mendoza eventually gave up and offered that
“whatever your decision is I will abide by that.” Mendoza’s
pitiful statement, however, does not indicate that he believed
he was at fault for the five years of repeated continuances or
MENDOZA-MAZARIEGOS v. MUKASEY 16033
that he should forfeit his right to counsel for deciding to hire
a new attorney just before the hearing. Rather, his words
reflect that he eventually gave in to an authority figure who
had berated him for much of the hearing and who had already
decided not to grant him a continuance.
Even if Mendoza should have fired attorney Paek sooner,
this misstep does not justify a forfeiture of his right to coun-
sel. Mendoza hired attorney Paek, a licensed professional with
knowledge of the law, to help him navigate the maze that is
our immigration system. And, like many similarly situated
aliens, even when unsatisfied with the quality of representa-
tion, Mendoza was reluctant to leave attorney Paek because
of the fear that the departure would negatively affect his
chances for relief.
[6] Thus, Mendoza’s continued trust in attorney Paek does
not constitute negligence or an attempt to delay the case in
bad faith. In fact, it would have been reasonable for Mendoza
to rely on his counsel’s purported knowledge and experience
and to trust that attorney Paek would protect his interests.
Instead, Mendoza’s sworn testimony indicates that he did
much more than just trust that his attorney would do the job
he was hired and paid to do. Mendoza repeatedly called attor-
ney Paek’s office inquiring about his case. Paek’s office told
Mendoza that any question “had to be to them” and refused
to let him speak to the attorney. When attorney Paek’s office
was not responsive, Mendoza was reluctant to give up on him
because “it was very difficult having lost all that money they
charged me.” Quite reasonably, the prospect of hiring another
lawyer was daunting for someone of Mendoza’s modest
means. However, when Mendoza became convinced that
attorney Paek would not represent him adequately (or at all),
he retained a second attorney, attorney Boachie-Yiadom.
Considering Mendoza’s lack of English proficiency, his unfa-
miliarity with the U.S. legal system, and his retention of a
licensed professional, there is no doubt that Mendoza was not
negligent in pursuing his case. The fact that the IJ would have
16034 MENDOZA-MAZARIEGOS v. MUKASEY
dealt with his attorney in a manner different from the way
Mendoza dealt with attorney Paek does not justify the IJ’s
denial of a short continuance, which effectively denied Men-
doza his right to counsel.15
3. The Crowded Docket of the Immigration Court
[7] Though the IJ does not specifically cite his crowded
docket in the decision, it is clear from the hearing transcript
that the two-year delay that would have been required to grant
Boachie-Yiadom’s request for a “short continuance” was a
significant reason why the request was not granted. This is not
an acceptable justification for the denial of the right to coun-
sel. The IJ, BIA, and the government all repeatedly lament
that Mendoza’s proceeding had stretched on for almost five
years. It should be clear to the government that Mendoza
should not be blamed for the fact that two minor scheduling
conflicts required that his case be delayed for three years.
Neither is it Mendoza’s fault that the short continuance attor-
ney Boachie-Yiadom requested would have required another
two-year delay. It is disturbing that an individual petitioner
was, in effect, punished for the crowded docket of the immi-
gration courts. Petitioners should not be forced to proceed
without counsel because of the scheduling problems of the
immigration court. As frustrating as delays might be, an
15
The denial of the continuance is especially difficult for us to uphold
because IJ Fong did not sufficiently ascertain the details of Mendoza’s
efforts to contact his counsel. The IJ told Mendoza he was not interested
in hearing about the notary, despite the fact that the notary was clearly a
central figure in Mendoza’s relationship with attorney Paek. The IJ then
criticized Mendoza for mentioning the notary, saying it was “easier to
blame unnamed people, people no one can ever identify or find them to
get their side, let alone substantiate what you claim. It’s easier to make a
claim that someone unnamed and unknown and whereabouts unknown is
at fault.” This criticism is ironic, given that the IJ did not give Mendoza
the chance to identify the notary, and given that the IJ disbelieved Men-
doza based on Paek’s statements made off the record, where Mendoza
could not effectively challenge them.
MENDOZA-MAZARIEGOS v. MUKASEY 16035
immigrant’s right to counsel should not be sacrificed because
of the shortcomings of the immigration system itself.
[8] Thus, Mendoza’s right to counsel was violated because,
when Mendoza’s attorney did not show up, IJ Fong did not
take reasonable steps to ensure that Mendoza’s statutory right
to counsel was honored. Neither the previous continuances,
nor Mendoza’s decision to hire a new lawyer, nor the signifi-
cant delay a continuance would have required, were sufficient
reasons to deny a continuance and require Mendoza to pro-
ceed without counsel.
IV. Prejudice
Our determination that Mendoza’s statutory right to coun-
sel was violated is not the end of our analysis. As we noted
in Hernandez-Gil, “it is unsettled whether there must be a
showing of prejudice where, as in this case, counsel has been
effectively denied.” 476 F.3d at 808 (citations omitted). Here,
because we conclude that Mendoza was clearly prejudiced by
the denial of his statutory right to counsel, “we again leave
unanswered the question whether a petitioner must show prej-
udice when he has been denied the right to counsel in removal
proceedings.” Id. (citation omitted).
[9] To establish prejudice, Mendoza “must show that the
denial of his right to counsel potentially [affected] the out-
come of the proceedings.” Id. (citations and internal quotation
omitted). Here, the IJ’s denial of Mendoza’s right to counsel
potentially affected the outcome of the proceedings. The IJ
denied Mendoza’s cancellation of removal application “for
failure to establish his statutory eligibility of good moral char-
acter” and for “failing to establish that he has not been con-
victed of specific crimes which under the law would be
statutory bars for relief of cancellation of removal.” This deci-
sion principally rested on the fact that Mendoza had not com-
pleted a criminal record check, which the IJ had previously
admonished attorney Paek about on numerous occasions.
16036 MENDOZA-MAZARIEGOS v. MUKASEY
Mendoza testified that he had no criminal record. This is not
controverted by the government. A competent counsel would
have obtained the background check so Mendoza could meet
the necessary requirement for cancellation of removal.
[10] Having proved that he did not have a criminal record,
Mendoza would have been given the opportunity to demon-
strate exceptional and extremely unusual hardship on his fam-
ily, also required for cancellation of removal. Mendoza could
have brought to the IJ’s attention the facts surrounding Men-
doza’s long residence in the United States and the potential
adverse impact of removal on his three United States citizen
children. As it was, Mendoza was not even questioned about
his children because the IJ determined that he could not meet
the other requirements. Thus, the denial of counsel did preju-
dice Mendoza.
V. Conclusion
We hold that petitioner Mendoza was effectively denied his
statutory right to be represented by counsel. In light of this
holding, we decline to reach Mendoza’s other contentions.
Mendoza’s petition for review is granted. The order that Men-
doza voluntarily depart from the United States is vacated, and
the case is remanded to the BIA for further proceedings con-
sistent with this opinion.16
Petition GRANTED.
16
We also recommend that, on remand, Mendoza’s hearing be held
before a different immigration judge. See Lopez-Umanzor v. Gonzales,
405 F.3d 1049, 1059 (9th Cir. 2005).