Montes-Lopez v. Holder , 694 F.3d 1085 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO MONTES-LOPEZ, AKA 
MARIO MORALES-ABREGO,
No. 08-70229
Petitioner,
v.  BIA No.
A095-487-944
ERIC H. HOLDER Jr., Attorney
OPINION
General,
Respondent.

Petition to Review an Order of the
Board of Immigration Appeals
Argued and Submitted
July 18, 2012—San Francisco, California
Filed September 18, 2012
Before: Richard R. Clifton, and Mary H. Murguia,
Circuit Judges, and Raner C. Collins,*
District Judge.
Opinion by Judge Collins
*The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
11433
MONTES-LOPEZ v. HOLDER 11435
COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner.
11436 MONTES-LOPEZ v. HOLDER
Gregory G. Katsas, Aviva L. Poczter, and Craig A. Newell,
Jr. (argued), U.S. Department of Justice, Washington, D.C.,
for the respondent.
OPINION
COLLINS, District Judge:
Petitioner Mario Montes-Lopez, a native and citizen of El
Salvador, petitions for review of an order of removal. Peti-
tioner’s attorney failed to appear at a scheduled merits hearing
before an Immigration Judge (“IJ”) because his license to
practice law had been temporarily suspended. The Immigra-
tion Judge found that Petitioner may have learned of his attor-
ney’s suspension as much as eleven days before the hearing,
and concluded that Petitioner was not diligent in bringing his
attorney’s suspension to the attention of the court. He denied
Petitioner’s motion to continue, proceeded with the hearing
with Petitioner unrepresented by counsel, and denied Petition-
er’s application for asylum.
We conclude that the Petitioner’s right to be represented in
the proceedings by retained counsel, established under 8
U.S.C. § 1362 and related regulations, was violated. We also
conclude that a petitioner so denied his right to counsel in an
immigration proceeding is not required to demonstrate actual
prejudice in order to obtain relief. We therefore grant the peti-
tion and remand for further proceedings.
I
Petitioner Mario Montes-Lopez, a native and citizen of El
Salvador, entered the United States at Eagle Pass, Texas, on
August 13, 2002. The Department of Homeland Security
apprehended and detained Petitioner and initiated removal
proceedings against him. On December 10, 2002, Petitioner
MONTES-LOPEZ v. HOLDER 11437
appeared before the immigration court in San Antonio, Texas,
and was granted a continuance in order to obtain counsel.
Thereafter, attorney Gloria Lopez appeared on behalf of Peti-
tioner and filed a motion to transfer the case to San Francisco,
California. Ms. Lopez subsequently withdrew as counsel.
On April 10, 2003, Petitioner appeared in San Francisco
before IJ Phan Quang Tue. Frank Sprouls, a pro bono attor-
ney, appeared on Petitioner’s behalf and indicated that the
Immigration Law Clinic in Davis, California had agreed to
represent Petitioner and requested a second continuance. The
IJ granted the continuance, but warned Petitioner that this
would be his last continuance. Thereafter, Petitioner hired
attorney Otto Peña, and timely filed his application for asy-
lum.
On May 12, 2004, Petitioner appeared before the IJ for his
merits hearing. Mr. Peña was not present. Petitioner presented
the IJ with a letter from Mr. Peña dated May 1, 2004, which
stated:
Dear Immigration Judge:
the [sic] above mentioned person is scheduled for an
individual hearing on May 12, 2004 at pm [sic].
Unfortunately, I am not able to represent him
because I have been suspended from the bar until
August 2004. I respectfully ask the court to continue
this matter until September to allow me to continue
representing him or so that he may obtain new coun-
sel.
The IJ then questioned Petitioner about his contact with Mr.
Peña:
Q: When did you last talk to Mr. Peña?
A: Last week.
11438 MONTES-LOPEZ v. HOLDER
Q: And did you talk to him in person?
A: No.
Q: By phone?
A: Yes.
Q: Okay, and that was after you received this letter?
A: Yes.
Q: The letter was dated May 1st, 2004. Why did you
wait until today to give it to me?
A: Because I received it just yesterday.
Q: You received by mail?
A: Yes.
Q: But you just told me that you talked to Mr. P[e]na
about a week ago.
A: Yes.
Q: After you received this letter.
A: I would talk to him frequently.
Q: Yes, but you said you talked to him after you
received this letter.
A: Well, yes.
Q: But you said you just received this letter yester-
day.
MONTES-LOPEZ v. HOLDER 11439
A: And I called him to tell him that I received his let-
ter.
Q: When did you last talk to him?
A: Well yesterday, later in the afternoon.
Q: But you just told me you last talked to him about
a week ago.
A: Well what happened is that I was talking to him
very frequently but often, that’s why.
Q: But, I asked you when did you last talk to him
and you said you last talked to him a week ago.
A: Okay, it was a mistake, an error.
At this point, the IJ placed Petitioner under oath and contin-
ued with the interrogation:
Q: Did you talk to him, last talk to him a week ago?
A: I’ve talked to him often.
Q: Answer to [sic] my question. When did you last
talk to him a week ago?
A: Yes.
Q: And did you talk to him after you received this
letter?
A: Just two minutes.
Q: Answer my question. Did you talk to him after
you received this letter? The letter you just gave me?
11440 MONTES-LOPEZ v. HOLDER
A: Yes.
Q: All right. The letter was dated May 1st, 2004,
then why did you just wait until today to give it to
me?
A: Because he told me that I should give this to you
when I came to court.
Q: So, you received it May 1st?
A: No.
Q: When did you receive it?
A: Yesterday.
Q: You testifying [sic] that you last talked to him a
week ago and you talked to him after you received
the letter. How could you receive it yesterday if you
talked to him a week ago?
A: I beg your forgiveness sir.
Q: Okay, I think you lied to the court.
A: I’m sorry.
Q: I’m going to deny the motion. Did you lie to the
court? Yes or no.
A: Yes.
Q: Okay, well why did you have to lie?
A: Well because I was getting confused because I do
speak to him very often and also I apologized [sic]
but I am very nervous.
MONTES-LOPEZ v. HOLDER 11441
Q: Why are you being nervous? I just ask you simple
questions.
A: I was trying to concentrate.
The IJ denied Petitioner’s request for a continuance, finding
that Petitioner lied to the court and that Petitioner’s delay in
seeking a continuance was unreasonable. The hearing pro-
ceeded with Petitioner appearing pro se.
After determining that Petitioner was not a credible wit-
ness, the IJ denied Petitioner’s applications for asylum and
withholding of removal, holding that young men in El Salva-
dor resisting gang recruitment do not constitute a cognizable
social group and that Petitioner failed to show past persecu-
tion. The IJ concluded that Petitioner was not entitled to pro-
tection under Article III of the United Nations Convention
Against Torture (“CAT”) because according to the 2004 State
Department Country Report on Human Rights Practices, the
El Salvadoran government was actively combating gang vio-
lence, and thus Petitioner could not demonstrate that his tor-
ture would be sanctioned by the government.
The BIA summarily affirmed the IJ’s decision without
opinion and without discussing Petitioner’s claim that his
right to counsel was violated. We reversed and remanded,
holding that the “BIA errs when it fails on appeal to consider
and decide claims that the IJ proceedings suffered from proce-
dural irregularity.” Montes-Lopes v. Gonzales, 486 F.3d 1163,
1165 (9th Cir. 2007). On remand, the BIA adopted and
affirmed the IJ’s decision, agreeing with the IJ’s credibility
determination and concluding that Petitioner could not estab-
lish that he was prejudiced by the denial of counsel at his mer-
its hearing. This petition for review followed.
II
We must consider whether the IJ’s denial of a continuance
violated Petitioner’s statutory right to counsel. This is a ques-
11442 MONTES-LOPEZ v. HOLDER
tion of law which we review de novo. See Hernandez-Gil v.
Gonzales, 476 F.3d 803, 804 n.1 (9th Cir. 2007).
[1] The Sixth Amendment does not apply in immigration
proceedings, but the Immigration and Nationality Act pro-
vides that “[i]n any removal proceedings before an immigra-
tion judge . . . the person concerned shall have the privilege
of being represented (at no expense to the Government) by
such counsel, authorized to practice in such proceedings, as
he shall choose.” 8 U.S.C. § 1362. Regulations require that
immigration judges must “[a]dvise the respondent [in a
removal proceeding] of his or her right to representation” and
of “the availability of free legal services.” 8 C.F.R.
§ 1240.10(a)(1)-(2); see also 8 U.S.C. § 1229a(b)(4)(A)
(directing the Attorney General to adopt regulations that
ensure aliens “shall have the privilege of being represented,
at no expense to the Government, by counsel of the alien’s
choosing.”). Additionally, the Fifth Amendment guarantees
that immigration proceedings meet basic standards of proce-
dural fairness. Baltazar-Alcazar v. INS, 386 F.3d 940, 944
(9th Cir. 2004). We have recognized that denial of counsel or
ineffective assistance of counsel in an immigration proceed-
ing may violate the Fifth Amendment. Id.; Mohsseni Behba-
hani v. INS, 796 F.2d 249, 251 (9th Cir. 1986).
[2] Petitioner’s right to counsel was violated when the IJ
required him to proceed with the hearing without counsel. It
was not Petitioner’s fault that his retained attorney was sus-
pended from practice. Although there might have been some
confusion and conflicting testimony as to how many days
before the hearing Petitioner learned about counsel’s suspen-
sion, there was no basis to conclude that Petitioner had been
aware of the problem for very long or was derelict in respond-
ing to it.
Petitioner’s ultimate admission that he lied to the court was
the result of the IJ’s prolonged and hostile interrogation,
which did not give Petitioner a fair opportunity to explain
MONTES-LOPEZ v. HOLDER 11443
himself. The IJ ignored Petitioner’s explanation that he made
a mistake and that he was nervous and confused. Instead, the
IJ forced Petitioner to admit to lying after submitting him to
a confusing barrage of questions. We do not give significant
weight to Petitioner’s admission. Because the IJ did not iden-
tify any other problems with Petitioner’s testimony, we con-
clude that the IJ’s adverse credibility determination is not
supported by substantial evidence. See Mendoza-Mazariegos
v. Mukasey, 509 F.3d 1074, 1082-83 (9th Cir. 2007) (giving
little weight to petitioner’s admission of negligence in failing
to contact an attorney when petitioner was confused by the
IJ’s questions and the IJ showed little patience for petitioner’s
attempts to explain why he had good cause for a continuance).
[3] More importantly, under any interpretation of Petition-
er’s testimony, the fact was that Petitioner did not know about
Mr. Peña’s suspension more than a few days before the hear-
ing. The record shows that Petitioner was diligent in making
his court appearances and meeting deadlines at every point in
the removal proceedings. It was not unreasonable for Peti-
tioner to wait until the hearing to give the IJ the letter from
Mr. Peña. See Baires v. INS, 856 F.2d 89, 93 (9th Cir. 1988)
(noting that any unreasonable conduct on the part of the party
seeking a continuance should be considered). Nothing sug-
gests that Petitioner was aware of Mr. Peña’s suspension
before receiving the letter. Even assuming Petitioner received
the letter on May 1, 2004, only eleven days passed before
Petitioner notified the IJ at the merits hearing. This was not
an unreasonable amount of time to wait, especially in light of
Petitioner’s testimony that he was following Mr. Peña’s
instructions. Nor was it unreasonable for Petitioner to con-
clude that the best thing for him to do, as he was apparently
advised by Mr. Peña, was to appear at the hearing and ask for
a continuance that would be long enough to permit Mr. Peña
to appear for him after his suspension had ended. The IJ was
not required to grant that request, to be sure, but if the
requested continuance until August was denied, Petitioner still
11444 MONTES-LOPEZ v. HOLDER
had a right to counsel and should have been given time to
retain another attorney.
[4] Even if Petitioner should have notified the immigration
court of Mr. Peña’s letter sooner, “this misstep does not jus-
tify a forfeiture of his right to counsel.” See Mendoza-
Mazariegos, 509 F.3d at 1083 (holding that alien’s failure to
fire incompetent counsel and find a new attorney “does not
justify a forfeiture of his right to counsel.”); see also
Hernandez-Gil, 476 F.3d at 808 (“When 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.”). Here, the IJ did not attempt to ensure that Petitioner’s
statutory right to counsel was upheld. Instead, the IJ “exhaus-
tively interrogate[d]” Petitioner regarding his contact with Mr.
Peña, and after forcing Petitioner to proceed without represen-
tation, conducted a “relatively limited” colloquy on Petition-
er’s claims for asylum, withholding, and CAT protection.
Montes-Lopez, 486 F.3d at 1164-65. Therefore, we conclude
that the IJ’s refusal to grant Petitioner a continuance was a
violation of Petitioner’s right to counsel.
III
Finally, we must decide whether Petitioner is required to
demonstrate that he was prejudiced by the lack of representa-
tion at his merits hearing. We hold that he is not.
[5] It is well-settled that a petitioner must show prejudice
to prevail on a claim that ineffective assistance of counsel in
an immigration hearing violated his or her right to counsel.
See Colindres-Aguilar v. INS, 819 F.2d 259, 261-62 (9th Cir.
1987) (citing Mohsseni Behbahani v. INS, 796 F.2d 249, 251
(9th Cir. 1986)). Certain types of ineffective assistance entitle
a petitioner to a rebuttable presumption of prejudice. This is
the case, at least, “when the petitioner was deprived of an
opportunity to appeal because of counsel’s untimely filing of
MONTES-LOPEZ v. HOLDER 11445
[an administrative] appeal.” Rojas-Garcia v. Ashcroft, 339
F.3d 814, 826 (9th Cir. 2004); see also Siong v. INS, 376 F.3d
1030 (9th Cir. 2004).
[6] We have never decided, however, whether prejudice is
an element of a claim that counsel has been denied in an
immigration proceeding. Hernandez-Gil, 476 F.3d at 808;
Baltazar-Alcazar, 386 F.3d at 947; Colindres-Aguilar, 819
F.2d at 262; Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir.
1985). In each case that has presented that question, we noted
the absence of governing law, but determined that the peti-
tioner(s) had in fact suffered prejudice, and so were entitled
to reversal even if prejudice was required. Baltazar-Alcazar,
386 F.3d at 957 (noting that “[t]he Ninth Circuit has yet to
decide whether prejudice is required when a petitioner has
demonstrated denial of the right to counsel in deportation pro-
ceedings” but reserving the question because the petitioners
“were in fact prejudiced by the denial of their right to coun-
sel”); Hernandez-Gil, 476 F.3d at 808 (noting that it was “un-
settled whether there must be a showing of prejudice where,
as in this case, counsel has been effectively denied” but deter-
mining that “Hernandez-Gil has shown that he was preju-
diced”) (internal quotation marks omitted); Ram v. Mukasey,
529 F.3d 1238, 1243 n.1 (9th Cir. 2008) (“[b]ecause we con-
clude that Ram’s due process rights were violated, we need
not reach the question, which was neither briefed nor argued,
of whether the violation of the statutory or regulatory right to
counsel requires a showing of prejudice.”).
The relevant authority in the sister circuits is split.
Baltazar-Alcazar, 386 F.3d at 947 n.6 (collecting relevant
out-of-circuit cases). The Second, Third, Seventh, and D.C.
Circuits do not require a showing of prejudice, but the Fourth,
Fifth, and Tenth Circuits do. Id.; Leslie v. Attorney Gen., 611
F.3d 171 (3d Cir. 2010). We think the reasoning of the Cir-
cuits that do not require prejudice is more persuasive and
more applicable to this case than the reasoning of the Circuits
that do require prejudice.
11446 MONTES-LOPEZ v. HOLDER
In Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991), the
Second Circuit concluded that an immigration judge had vio-
lated applicable regulations by failing to notify an alien of his
right to counsel and of the availability of free legal services.
The Second Circuit reasoned from “the long-settled principle
that the rules promulgated by a federal agency, which regulate
the rights and interests of others, are controlling upon the
agency.” Id. at 166 (citing Columbia Broadcasting System,
Inc. v. United States, 316 U.S. 407, 422 (1942)). It declined
to add a prejudice requirement to this rule because it reasoned
that automatic reversal upon violation of such a regulation
would encourage agency compliance with its own rules and
serve the interests of judicial economy. Id. at 169. It con-
cluded that:
[A]n alien claiming the INS has failed to adhere to
its own regulations regarding the right to counsel in
a deportation hearing is not required to make a
showing of prejudice before he is entitled to relief.
All that need be shown is that the subject regulations
were for the alien’s benefit and that the INS failed to
adhere to them.
Id. at 169; see also Waldron v. INS, 17 F.3d 511, 518 (2d Cir.
1993) (adhering to Montilla but declining to extend it to pro-
cedural violations that do not involve the deprivation of fun-
damental rights).
In Leslie, the Third Circuit reached the same result by very
similar reasoning. It observed that the Supreme Court has
imposed a prejudice requirement in cases involving violation
of “a mere ‘procedural rule[ ] adopted for the orderly transac-
tion of business’ in order to ‘aid the Commission in exercising
its discretion.’ ” Leslie, 611 F.3d at 176 (quoting Am. Farm
Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-39
(1970)). No showing of prejudice is required, however, when
a rule is “ ‘intended primarily to confer important procedural
benefits upon indiv[i]duals’ ” or “when alleged regulatory
MONTES-LOPEZ v. HOLDER 11447
violations implicate fundamental statutory or constitutional
rights.” Id. at 176, 180 (quoting Am. Farm Lines, 397 U.S. at
539). It reasoned that the regulation requiring immigration
judges to give notice of the availability of free legal services
in Leslie was a “particularly important procedural safeguard”
that “derives from 8 U.S.C. § 1362.” Id. at 180-81. Accord-
ingly, the petitioner in Leslie was not required to show preju-
dice. Id. at 182.
In Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir.
1975), the Seventh Circuit also declined to impose a prejudice
requirement on a petitioner who alleged deprivation of his
right to counsel in an immigration proceeding. The Seventh
Circuit observed that in the criminal context, it is well-settled
that the Sixth Amendment right to counsel “ ‘is too funda-
mental and absolute to allow courts to indulge in nice calcula-
tions as to the amount of prejudice arising from its denial.’ ”
Id. at 1300 (quoting Glasser v. United States, 315 U.S. 60, 76
(1942), superseded by statute on other grounds as stated in
Bourjaily v. United States, 483 U.S. 171, 177 (1987)); accord
Campbell v. Rice, 408 F.3d 1166, 1176 (9th Cir. 2005). The
Seventh Circuit identified no reason for indulging in such cal-
culations outside the criminal context. See id. at 1300-1301.
Moreover, it reasoned that the statutes and regulations grant-
ing a right to representation in immigration proceedings
“would be eviscerated by the application of the harmless error
doctrine.” Id. at 1302; see also Batanic v. INS, 12 F.3d 662,
667 (7th Cir. 1993) (adhering to Castaneda-Delgado); Sna-
jder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994) (same).
Accordingly, it reversed without requiring the petitioner to
show prejudice. Id. at 1302.
In Cheung v. INS, 418 F.2d 460, 464 (D.C. Cir. 1969), the
D.C. Circuit reached a similar decision. After concluding that
the petitioner’s right to counsel had been violated, the D.C.
Circuit reasoned that “there is limited room in administrative
law for the doctrine of harmless error.” Id. It concluded that
no prejudice inquiry is appropriate for “some rights, like the
11448 MONTES-LOPEZ v. HOLDER
assistance of counsel, [that] are so basic to a fair trial that
their infraction can never be treated as harmless error.” Id.
The Fourth, Fifth, and Tenth Circuits do require a showing
of prejudice, but we think the decisions in which they adopted
this requirement are less persuasive than the decisions dis-
cussed above. All of the cases of which we are aware arose
from either relatively minor violations of the right-to-counsel
regulations, Delgado-Corea v. INS, 804 F.2d 261, 263 (4th
Cir. 1986), or from situations where there was no violation of
the right to counsel at all, and the court of appeals noted the
absence of prejudice only as an alternative holding. Farrokhi
v. INS, 900 F.2d 697, 702 (4th Cir. 1990); Patel v. INS, 803
F.2d 804, 807 (5th Cir. 1986). None of the cases persuasively
address the principles of administrative and constitutional law
applied in the Second, Third, Seventh, and D.C. Circuit opin-
ions. See id.
The government argues that it is inconsistent to make prej-
udice an element of claims of ineffective assistance of counsel
in an immigration proceeding but not of claims of denial of
counsel in an immigration proceeding. We disagree. Such
ineffective assistance of counsel claims require a showing of
prejudice because they are based on the Fifth Amendment
right to a proceeding that is “full and fair” as a whole. Garcia-
Jaramillo v. INS, 604 F.2d 1236, 1239 (9th Cir. 1979). If the
alien cannot show prejudice, then his or her right to a full and
fair hearing has not been violated. Id. A claim that counsel
has been denied is different for two reasons. First, such a
claim is not based not only on the Fifth Amendment’s general
right to a full and fair hearing, but on the specific law and reg-
ulations that give aliens a right to be represented by the attor-
ney of their choice. See., e.g., Baltazar-Alcanzar, 386 F.3d at
947. When this court concludes that an agency has not cor-
rectly applied controlling law, it must typically remand, even
if we think the error was likely harmless. INS v. Orlando Ven-
tura, 537 U.S. 12, 16-17 (2002).
MONTES-LOPEZ v. HOLDER 11449
Second, denial of counsel more fundamentally affects the
whole of a proceeding than ineffective assistance of counsel.
Among other things, the absence of counsel can change an
alien’s strategic decisions, prevent him or her from making
potentially-meritorious legal arguments, and limit the evi-
dence the alien is able to include in the record. This means
that denial of counsel is likely, at least in the aggregate, to be
more prejudicial than ineffective assistance of counsel. It also
means that it is more impractical for courts to determine
whether prejudice accompanied a particular denial of counsel
than whether it accompanied a particular instance of ineffec-
tive assistance of counsel.
[7] This circuit’s Sixth Amendment law recognizes this
distinction. A criminal defendant who alleges ineffective
assistance of counsel must generally show prejudice, Smith v.
Mahoney, 611 F.3d 978, 1001 (9th Cir. 2010), but a defendant
who has been denied counsel need not. Campbell v. Rice, 408
F.3d 1166, 1176 (9th Cir. 2005). When counsel’s assistance
is so ineffective as to amount to a constructive denial of coun-
sel, prejudice is presumed, but may be rebutted by the prose-
cution. Smith, 611 F.3d at 1001; see also McNeal v. Adams,
623 F.3d 1283, 1286 (9th Cir. 2010). The Sixth Amendment
does not apply in the immigration context, but we see no rea-
son why the logic that has guided our interpretation of the
Sixth Amendment should not also guide our decision here.
Our decision today is not contrary to our decisions in
appeals from convictions for illegal re-entry after deportation
under 8 U.S.C. § 1326. See, e.g., United States v. Reyes-
Bonilla, 671 F.3d 1036, 1047-49 & n.11 (9th Cir. 2012). In
Reyes-Bonilla, we held that a § 1326 defendant who collater-
ally attacks a predicate deportation on the grounds that he or
she was denied counsel during the deportation proceeding
must show that the denial of counsel caused prejudice. Id. The
prejudice requirement we imposed in Reyes-Bonilla, however,
is rooted in the limitations on criminal defendants’ right to
collaterally attack the result of a prior proceeding. Such col-
11450 MONTES-LOPEZ v. HOLDER
lateral attacks are generally not allowed, but there is an excep-
tion to this rule when the alleged procedural deficiencies in a
prior proceeding unconstitutionally “foreclose judicial
review.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-
38 (1987). This constitutional right is only implicated when
the deportee has suffered prejudice. United States v. Proa-
Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc). Thus, any
collateral attack on the predicate deportation proceeding in a
§ 1326 prosecution requires a showing of prejudice, irrespec-
tive of whether the defendant alleges denial of counsel or
some other procedural problem. The denial of counsel claim
in this case is different because it reaches this court as part of
a petition for review under 8 U.S.C. § 1252, not a collateral
attack on the result of a prior proceeding. Since the petitioner
does not need to avail himself of the constitutional exception
to the rule against collateral attacks, he need not meet the
Proa-Tovar prejudice requirement.
Our decision today is also not contrary to our decision in
United States v. Calderon-Medina, 591 F.2d 529, 531 (9th
Cir. 1979). In Calderon-Medina, the defendant appealed from
his conviction for illegal re-entry after deportation under 8
U.S.C. § 1326. He argued that during his deportation proceed-
ing the INS had violated regulations requiring the INS to
make personal service of an order to show cause and to advise
the alien of his right to contest the evidence against him. Id.
at 531. We held that “[v]iolation of a regulation does not
invalidate a deportation proceeding unless the regulation
serves a purpose of benefit to the alien.” Id. The Second and
Third Circuits subsequently interpreted this broadly-phrased
sentence in Calderon-Medina to mean that in this Circuit prej-
udice is an element of a denial of counsel claim. Leslie, 611
F.3d at 177; Montilla, 926 F.2d at 167.
We do not read Calderon-Medina this way. First,
Calderon-Medina was a § 1326 case, so its relevance outside
that context is limited by the considerations discussed above.
Moreover, we based the prejudice requirement in Calderon-
MONTES-LOPEZ v. HOLDER 11451
Medina on the Supreme Court’s decision in American Farm
Lines. As described above, American Farm Lines requires a
showing of prejudice when a petitioner seeks relief from vio-
lation of a relatively minor procedural rule “adopted for the
orderly transaction of business.” 397 U.S. at 539. As the Third
Circuit has recognized, American Farm Lines must be recon-
ciled with Accardi, which “teaches that some regulatory vio-
lations are so serious as to be reversible error without a
showing of prejudice.” Leslie, 611 F.3d at 178. We agree with
the other circuits that have concluded that denial of counsel
in an immigration proceeding is serious enough to be revers-
ible without a showing of error, and we do not think
Calderon-Medina is to the contrary.
[8] For these reasons, we hold that an alien who shows that
he has been denied the statutory right to be represented by
counsel in an immigration proceeding need not also show that
he was prejudiced by the absence of the attorney.
IV
[9] Immigration judges have broad discretion to deny an
alien’s motion to continue. It is not necessary to continue
hearings indefinitely merely because an alien says that he or
she cannot find counsel. The IJ’s decision in this case, how-
ever, was based on an unrealistic analysis of Petitioner’s dili-
gence and failed to adequately protect the Petitioner’s right
under 8 U.S.C. § 1362 to be represented by an attorney. The
law does not require Petitioner to show that the violation of
this statute caused him prejudice. Accordingly, we grant the
petition and remand for further proceedings consistent with
our opinion.
PETITION GRANTED.