Julio Freza v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-2259
_______________
JULIO FREZA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A078-833-855)
Immigration Judge: Jason L. Pope
_______________
Argued: June 7, 2022
Before: AMBRO, RENDELL, and FUENTES,
Circuit Judges.
(Filed: September 15, 2022)
______________
Peter R. Crossley [Argued]
Rebecca Hufstader
Legal Services of New Jersey
100 Metroplex Drive, Suite 402
Edison, NJ 08817
Counsel for Petitioner
Brendan P. Hogan [Argued]
Marie V. Robinson
Michele Y. F. Sarko
Office of Immigration Litigation
United States Department of Justice
PO Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
OPINION OF THE COURT
______________
FUENTES, Circuit Judge.
Julio Freza petitions for review of a decision of a final
order of removal issued by the Board of Immigration Appeals
(“BIA”), which affirmed the Immigration Judge’s (“IJ”)
decision that Freza was removable and ineligible for relief
under the Convention Against Torture (“CAT”). The primary
issue on appeal is whether the IJ’s denial of a 30-day
continuance for Freza’s counsel to prepare to adequately
represent him violated Freza’s right to counsel. Because we
conclude that it did, we will grant Freza’s petition for review,
vacate the BIA’s decision, and remand for further proceedings
consistent with this opinion.
2
I.
Freza is a native and citizen of the Dominican Republic
who entered the United States in 1998. He adjusted status to
lawful permanent resident in March 2004. In June 2012, he
was arrested and eventually convicted in the Somerset County
Superior Court of New Jersey for one count of robbery, in
violation of N.J. Stat. Ann. § 2C:15-1; two counts of
aggravated assault with a firearm, in violation of N.J. Stat.
Ann. § 2C:12-1(b)(4); one count of burglary, in violation of
N.J. Stat. Ann. § 2C:18-2; and one count of possession of a
weapon for an unlawful purpose, in violation of N.J. Stat. Ann.
§ 2C:39-4(a).1 In December 2015, he was sentenced to ten
years’ imprisonment for these offenses. On March 22, 2019,
while Freza was serving his ten-year sentence at Northern State
Prison in New Jersey (“Northern State”), the Department of
Homeland Security (“DHS”) filed a Notice to Appear (“NTA”)
and initiated removal proceedings against him. He was
charged as removeable on two grounds: (1) under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been convicted of an
aggravated felony, specifically a theft offense as defined by 8
U.S.C. § 1101(a)(43)(G); and (2) under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been convicted of an
aggravated felony of a crime of violence, as defined by 8
U.S.C. § 1101(a)(43)(F). DHS later amended the NTA to add
a third charge of removability under 8 U.S.C § 1227(a)(2)(C),
alleging that Freza was removable for having been convicted
of a firearms offense.
1
The original charges also included criminal restraint, in
violation of N.J. Stat. Ann. § 2C:13-2(a); and unlawful
possession of a weapon, in violation of N.J. Stat. Ann. § 2C:39-
5(c)(1).
3
Initially, Freza’s removal proceedings took place
through the Institutional Hearing Program docket at the
Elizabeth Immigration Court (“EIC”) in Elizabeth, New
Jersey. Freza’s first master calendar hearing occurred on
January 28, 2020. The IJ advised Freza of his right to be
represented and gave him more time to find an attorney. Freza
told the IJ that he had attempted to contact pro bono legal
organizations, but none could take his case at the time. He also
advised the IJ that he could not hire a lawyer because he had
been in prison for seven years and that had “deflated [his]
resources,” but that he “would definitely try to get one.”2
Freza’s second master calendar hearing occurred on February
18, 2020. The IJ proceeded with Freza pro se, as he had still
been unable to retain an attorney. The IJ sustained the first two
charges of removability but dismissed the third. On March 18,
2020, Freza filed an application for asylum, withholding of
removal, and relief under the CAT. Due to staffing shortages
at the prison resulting from the COVID-19 pandemic, Northern
State was unable to produce Freza for his next two video
hearings at the EIC scheduled for April 21, 2020 and May 19,
2020. The IJ was thus forced to continue Freza’s case until
July 28, 2020. That hearing was continued as well due to audio
problems at the EIC. The IJ then rescheduled Freza’s hearing
for September 22, 2020. On that day, Northern State advised
the court that it could not produce Freza again. Freza’s third
master calendar hearing finally took place on October 20,
2020, with Freza appearing pro se via video. The merits
hearing on his application for relief was eventually set for
December 16, 2020. On November 4, 2020, Freza was
transferred to U.S. Immigration and Customs Enforcement
(“ICE”) custody at the Essex County Correctional Facility
2
A.R. 130.
4
(“ECCF”) in Newark, New Jersey. The day of Freza’s merits
hearing, the EIC closed due to a snowstorm, forcing the
hearing to be canceled. Freza’s merits hearing was
rescheduled for January 5, 2021.
Rebecca Wyss of the American Friends Service
Committee, a pro bono legal services provider in New Jersey,
first learned of Freza on December 30, 2020 and arranged with
ECCF to speak with him at the facility’s earliest available
appointment, which was the day before the rescheduled merits
hearing. On January 5, 2021, Wyss filed a notice of appearance
and a written motion to continue Freza’s merits hearing for at
least 30 days so she could prepare to adequately represent
Freza. At the merits hearing, Wyss explained that she had been
retained approximately 24 hours before and had not had an
opportunity to review the record. She further argued that Freza
had difficulties getting evidence for his case and noted that he
had suffered from COVID-19 for “quite a period.”3 She also
asserted that, while Freza was at Northern State, he did not
have access to certain pro bono legal services that are available
to individuals in ICE custody in New Jersey. DHS opposed the
motion. The IJ denied the motion to continue, finding that
Freza had failed to establish good cause to continue the case.
The IJ relied on the fact that Freza had been aware of his merits
hearing “for quite some time” given that it was originally
scheduled for December 16, 2020 and he had been in ICE
custody for more than two months.4 Wyss moved to withdraw
since she could not “provide effective assistance of counsel,”
and her motion was granted.5 Freza then asked the IJ for an
3
A.R. 180.
4
A.R. 185.
5
A.R. 186.
5
opportunity to try to obtain new counsel, but the IJ denied his
request, so the merits hearing continued with Freza proceeding
pro se. During the merits hearing, Freza testified that he feared
Oliver Almonte, his co-defendant from his criminal case, who
had been deported to the Dominican Republic in early 2012.
He testified that while he was in criminal custody awaiting trial
in August 2012, he was brutally attacked by other inmates who
were associated with Almonte. According to Freza, he was
seriously injured in the attack and suffered a broken jaw. He
also testified that a couple of months prior, Almonte threatened
his girlfriend by saying “that he had two bullets, one for her,
one for me.”6 Freza submitted documentary evidence
including: (1) a partial copy of the sentencing memorandum
from his criminal case; (2) a copy of the news article covering
the attack on him; (3) character letters from family and friends;
and (4) certificates from courses he took at Northern State. The
IJ entered the State Department’s Dominican Republic 2019
Human Rights Report into the record on Freza’s behalf. In an
oral decision issued at the hearing, the IJ determined that
Freza’s conviction for robbery constituted an aggravated
felony and a particularly serious crime, and that he was thus
ineligible for asylum and withholding of removal.7 The IJ also
denied Freza’s application for deferral of removal under the
CAT, concluding that he had failed to show that he would more
likely than not be tortured upon his return to the Dominican
Republic. Specifically, the IJ found that the attack on Freza
in the United States “was too attenuated to conclude that the
respondent would be harmed by anybody associated with Mr.
6
A.R. 201.
7
Freza does not appeal the IJ’s decision concerning his
ineligibility for asylum or withholding of removal.
6
Almonte . . . if he is returned to the Dominican Republic.”8 The
IJ primarily relied on the fact that all contact with Almonte had
ceased back in 2012 and that, while Freza “believes Mr.
Almonte was deported back to the Dominican Republic . . . [,]
he has no direct knowledge about his whereabouts at this time
and does not even know if Mr. Almonte is still alive or still in
the Dominican Republic.”9 The IJ also concluded that Freza
failed to demonstrate that the Dominican government would
consent or acquiesce to the feared torturous acts. As a result,
the IJ ordered Freza removed to the Dominican Republic.
Freza timely appealed the IJ’s decision to the BIA, which
dismissed Freza’s appeal on June 17, 2021. First, the BIA
agreed that Freza was removable as a noncitizen convicted of
an aggravated felony. Second, the BIA agreed that Freza was
ineligible for asylum or withholding of removal because his
robbery conviction was a particularly serious crime. Third, the
BIA agreed with the IJ that Freza had not established good
cause for a continuance of his merits hearing. Specifically, the
BIA noted that Freza’s first hearing was nearly a year prior to
his merits hearing and his case was continued six times after
the initial hearing. The BIA also dismissed Freza’s due process
arguments, including that the IJ failed to fully develop the
record. Lastly, the BIA agreed that Freza failed to qualify for
CAT deferral. This petition for review followed.
II.
We have jurisdiction to review final orders of the BIA
under 8 U.S.C. § 1252(a)(1). However, because Freza is
subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), “the
8
A.R. 105–06.
9
A.R. 106.
7
statute constrains our jurisdiction to ‘constitutional claims or
questions of law.’”10 We exercise de novo review over these
claims or questions.11 “Where the BIA affirms and partially
reiterates the IJ’s discussions and determinations, we look to
both decisions.”12
III.
Freza raises two principal arguments on appeal: (1) that
the IJ violated his due process right to a fundamentally fair
hearing and his statutory right to counsel by denying his
counsel’s request for a continuance so that she could prepare
to adequately represent him; and (2) that the BIA and the IJ
misapplied the legal standard in evaluating his application for
CAT relief. Because we agree with Freza on the first issue, our
analysis will start and end there.
A.
The Due Process Clause of the Fifth Amendment
guarantees noncitizens “the right to effective assistance of
counsel in removal proceedings” and a “fundamentally fair
hearing.”13 An individual’s right to counsel is further protected
by statute: “the alien shall have the privilege of being
represented, at no expense to the Government, by counsel of
10
Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017)
(quoting Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008)
(en banc)); 8 U.S.C. §§ 1252(a)(2)(C), (D).
11
Myrie, 855 F.3d at 515.
12
Id. (citing Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.
2009)).
13
Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 385 (3d Cir.
2020).
8
the alien’s choosing who is authorized to practice in such
proceedings.”14 This statutory right is also reflected in the
immigration regulations.15
A noncitizen asserting a due process violation must
generally show (1) “that he was prevented from reasonably
presenting his case,” and (2) “that substantial prejudice
resulted.”16 To show substantial prejudice, the noncitizen must
establish “that the infraction ha[d] the potential for affecting
the outcome” of their removal proceedings.17
To determine whether a noncitizen was prejudiced, we
must “consider the record in relation to the potential grounds
asserted for relief,” here CAT protection.18 A petitioner
seeking CAT protection must demonstrate that “it is more
likely than not that he . . . would be tortured” if returned to his
country of origin.19 He must show, in other words, that “severe
pain or suffering” will likely be “inflicted by or at the
14
8 U.S.C. § 1229a(b)(4)(A); see also 8 U.S.C. § 1362 (“In any
removal proceedings before an immigration 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.”).
15
See, e.g., 8 C.F.R. § 292.5 (“Whenever an examination is
provided for in this chapter, the person involved shall have the
right to be represented by an attorney. . . .”).
16
Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir.
2017).
17
Id. (internal citation and quotation marks omitted).
18
Id.19
Kaita v. Att’y Gen., 522 F.3d 288, 300 (3d Cir. 2008).
9
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.”20
However, proving substantial prejudice is not always
required. “[W]hen an agency promulgates a regulation
protecting fundamental statutory or constitutional rights of
parties appearing before it, the agency must comply with that
regulation. Failure to comply will merit invalidation of the
challenged agency action without regard to whether the alleged
violation has substantially prejudiced the complaining party.”21
We have previously recognized that the right to counsel is
fundamental to the proceeding’s fairness and that “[t]he right
to counsel is a particularly important procedural safeguard
because of the grave consequences of removal.”22
Freza’s “due process claim is inextricably linked with
the [IJ’s] denial of the continuance request.”23 Freza’s
“assertion that his right to counsel was violated is based solely
on the [IJ’s] decision to deny the continuance request.”24 Thus,
we treat “the two claims [as] one and the same.”25 The question
of whether the denial of a continuance constitutes a violation
of Freza’s due process and statutory right to counsel, and was
therefore an abuse of discretion, “must be resolved on a case
by case basis according to the facts and circumstances of each
case.”26
20
Id. (citations omitted).
21
Leslie v. Att’y Gen., 611 F.3d 171, 180 (3d Cir. 2010).
22
Id. at 181.
23
Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373 (3d Cir. 2003).
24
Id. at 373–74.
25
Id. at 374.
26
Id. at 377 (internal citation and quotation marks omitted).
10
B.
We are hard pressed to find a more compelling set of
facts constituting a violation of Freza’s due process and
statutory right to counsel. After Freza diligently sought
counsel while incarcerated, he was finally able to obtain
counsel the day before his rescheduled merits hearing.
However, when that counsel moved for a 30-day continuance
so that she could prepare to adequately represent him, the IJ
denied the motion, and the BIA affirmed, relying primarily on
the fact that Freza’s initial hearing had taken place almost a
year before. The IJ and BIA plainly ignored that the delay was
due to circumstances completely outside Freza’s control.
Indeed, this was Freza’s first request for a continuance of his
merits hearing and there was no evidence to indicate that the
request was a dilatory tactic by Freza or his counsel.27 In fact,
it was reasonable that counsel would request such a
continuance, as she had only met with Freza for the first time
less than 24 hours before the merits hearing and she had not
had time to review the record. Denying the continuance under
these circumstances was clearly an abuse of discretion and a
violation of Freza’s due process and statutory right to counsel.
Contrary to the Government’s assertions, this case
closely tracks Chlomos v. INS, 516 F.2d 310 (3d Cir. 1975).
There, we held that a petitioner’s right to counsel was violated
where the petitioner clearly expressed his desire to be
represented by counsel but ultimately went unrepresented
because he was unable to contact his lawyer, at least in part due
27
Cf. Chlomos v. INS, 516 F.2d 310, 314 (3d Cir. 1975) (“We
do not condone unnecessary delay or dilatory tactics through
the ruse of counsel’s unavailability.”).
11
to being incarcerated and because the IJ had failed to notify his
counsel.28 We explained that
[w]hile two continuances were granted in this
case, as a practical matter, they were inadequate
to make the services of his chosen counsel
available to petitioner. There was no necessity
for the hasty hearing by the immigration judge,
and arrangements could have been made which
would have been reasonable for both the
government and petitioner’s counsel. We do not
condone unnecessary delay or dilatory tactics
through the ruse of counsel’s unavailability.
Efficient management of the administrative
process can prevent such abuse when it appears.
That did not appear to be a problem here.29
Similarly, here “[t]here was no necessity for the hasty hearing
by the immigration judge,” and other “reasonable”
“arrangements could have been made.”30 In their decisions, the
IJ and BIA rely primarily on the fact that there was more than
a year between Freza’s initial hearing and his merits hearing,
but ignore that this was due to reasons completely out of
Freza’s control. He was not engaging in “dilatory tactics
through the ruse of counsel’s unavailability.”31 The IJ and the
28
Id. at 312–14.
29
Id. at 314.
30
Id.31
Id.12
BIA also ignore the realities of obtaining legal counsel while
detained.32
The Government’s reliance on Ponce-Leiva v. Ashcroft,
331 F.3d 369 (3d Cir. 2003), is misplaced. In that case, we
held that a petitioner’s right to counsel was not violated where
the IJ denied a request for a continuance from petitioner’s
counsel and proceeded with petitioner’s merits hearing without
counsel because counsel had been informed of the date of the
hearing eight months prior and had agreed to that date.33 We
explained that petitioner’s asylum claim lacked merit, and that
it was “reasonable and proper” for the IJ to consider this
“apparent lack of merit . . . when deciding to proceed without
counsel.”34
The facts of this case are plainly distinguishable. Unlike
the petitioner in Ponce-Leiva, Freza was not previously
represented. And, unlike counsel in Ponce-Leiva who
inexplicably missed his client’s hearing, Freza’s chosen
32
See Hernandez Lara v. Barr, 962 F.3d 45, 55 (1st Cir. 2020)
(“[D]ata shows that detention significantly decreases the
ability of respondents in immigration proceedings to obtain
counsel.” (citing Ingrid V. Eagly & Steven Shafer, A National
Study of Access to Counsel in Immigration Court, 164 U. Pa.
L. Rev. 1, 32 (2015)); see also Usubakunov v. Garland, 16
F.4th 1299, 1305 (9th Cir. 2021) (describing a detained
applicant’s process of obtaining counsel as “long and
frustrating”).
33
Ponce-Leiva, 331 F.3d at 375.
34
Id. at 377 (“It was clear at the outset . . . that [petitioner’s]
claim for asylum was based solely on economic reasons, and
therefore would not merit relief.”).
13
counsel appeared and requested 30 days to prepare to
adequately represent him. The IJ here abused his discretion in
denying that request, thus rendering Freza’s right to counsel
meaningless. Further, although the BIA ultimately concluded
that Freza’s claim lacked merit, the IJ did not consider a facial
lack of merit when deciding to deny Freza’s counsel’s request
for a 30-day continuance.35
The Government also argues that because the IJ
“advised Freza of his right to counsel and ensured that he had
received the free legal services list at his very first hearing on
January 28, 2020” and “continued Freza’s hearing at his
request so he could attempt to obtain counsel,” the agency did
not violate Freza’s statutory and regulatory right to counsel.36
We disagree. The Government is right that the IJ initially
complied with Freza’s statutory and regulatory right to
counsel. However, that does not preclude our finding that the
IJ later violated those rights when the IJ denied a motion for a
continuance for a mere 30 days so that Freza’s newly obtained
counsel could prepare to adequately represent him, particularly
when she had already filed an appearance and was present at
the hearing. Thus, we hold that, under the particular facts of
this case, no showing of prejudice is required because the IJ
violated Freza’s statutory and regulatory rights.
Even assuming arguendo that Freza needs to show
substantial prejudice, he only needs to show that the presence
of counsel “had the potential for affecting the outcome of the
35
Cf. id. We express no view on the merits of Freza’s CAT
claim.
36
Resp. Br. at 32.
14
proceedings.”37 This he has done. At his merits hearing, he
testified that he was beaten up by his criminal co-defendant,
Oliver Almonte. He also testified that Almonte threatened his
girlfriend. The IJ asked him how he knew Almonte was still
alive, and whether he knew if Almonte worked for the
Dominican government. Counsel for the Government also
asked Freza whether he had “any evidence that Mr. Almonte
exists.”38 Freza stated that he did not know whether Almonte
was still alive, did not know whether Almonte worked for the
Dominican government, and did not have proof of Almonte’s
existence. In denying relief, the IJ recognized that “some of
the things that happened have been harm here in the United
States, in the Somerset County Jail in 2012 by individuals who
may have been connected to Mr. Almonte.”39 Ultimately, the
IJ concluded “that [was] too attenuated to conclude that the
respondent would be harmed by anybody associated with Mr.
Almonte.”40 The IJ relied in part on the fact that Freza “has no
direct knowledge about [Mr. Almonte’s] whereabouts at this
time and does not even know if Mr. Almonte is still alive or
still in the Dominican Republic.”41 Counsel for Freza could
have obtained documentation regarding Almonte’s
whereabouts and presented this information to the IJ. The
presence of counsel thus “ha[d] the potential for affecting the
outcome.”42
37
Serrano-Alberto, 859 F.3d at 213.
38
A.R. 205.
39
A.R. 105.
40
A.R. at 106.
41
Id.
42
Serrano-Alberto, 859 F.3d at 213. In a footnote, the
Government asserts that Freza has waived his argument that
“[c]ounsel could have investigated Almonte’s whereabouts”
15
Lastly, the Government asserts that Freza failed to show
that the IJ abused his discretion in denying Freza’s motion to
continue. As discussed above, Freza’s due process claim is
treated the same as the IJ’s denial of the request for a
continuance. Because we conclude that the IJ violated Freza’s
due process and statutory right to counsel in denying Freza’s
motion to continue, it follows that the IJ abused his discretion
in denying the motion to continue.
and “obtained evidence that Mr. Almonte was deported back
to the Dominican Republic in 2012” by failing to raise it before
the BIA. Resp. Br. at 29 n.11 (quoting Pet’r. Br. at 34, 36).
However, as Freza correctly points out, he argued to the BIA
that his counsel could have obtained additional evidence. The
evidence cited in his appellate brief is a specific type of
evidence that his counsel could have obtained, and thus Freza
has not waived this argument. See United States v. Joseph, 730
F.3d 336, (3d Cir. 2013) (“Parties are free . . . to . . . more fully
explain an argument on appeal than they did in the District
Court.”). The Government also asserts that “[i]n any event,
that argument is besides the point” because “the IJ found
Freza’s testimony that Freza believed that Almonte was in the
Dominican Republic to be credible.” Resp. Br. at 29 n.11.
Although the IJ entered a favorable credibility determination,
in determining that Freza was not eligible for CAT relief, the
IJ still faulted Freza for not knowing whether Almonte was
alive and whether he worked for the Dominican government.
16
III.
For these reasons, we will grant Freza’s petition for
review, vacate the BIA’s decision, and remand to the BIA for
further proceedings consistent with this opinion.
17