Baldemar Zuniga v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALDEMAR ZUNIGA, No. 16-72982
Petitioner,
Agency No.
v. A089-247-110
WILLIAM P. BARR, Attorney General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an
Immigration Judge’s Decision
Argued and Submitted May 17, 2019
Seattle, Washington
Filed August 20, 2019
Amended December 26, 2019
Before: Andrew J. Kleinfeld and Michelle T. Friedland,
Circuit Judges, and William H. Pauley III, * District Judge.
Order;
Per Curiam Opinion
*
The Honorable William H. Pauley III, United States District Judge
for the Southern District of New York, sitting by designation.
2 ZUNIGA V. BARR
SUMMARY **
Immigration
The panel filed an amended opinion granting Baldemar
Zuniga’s petition for review of an immigration judge’s
decision affirming an asylum officer’s negative reasonable
fear determination in expedited removal proceedings, and
remanded, holding that non-citizens subject to expedited
removal under 8 U.S.C. § 1228 have a statutory right to
counsel in reasonable fear proceedings before an
immigration judge, and that the immigration judge deprived
Zuniga of his right to counsel by failing to obtain a knowing
and voluntary waiver of that right.
The panel rejected the government’s argument that there
is no statutory right to counsel in reasonable fear
proceedings. The panel explained that expedited removal
proceedings for non-citizens convicted of committing
aggravated felonies are currently codified at 8 U.S.C.
§ 1228(b), and that reasonable fear proceedings are in turn a
part of those expedited removal proceedings. The panel
noted that although the legal provisions requiring the
government to conduct reasonable fear proceedings as part
of expedited removal proceedings are set forth in
regulations, rather than § 1228 itself, those regulations were
promulgated pursuant to the Attorney General’s authority
under § 1228. The panel further concluded that the statute
clearly contemplates a right to counsel in expedited removal
proceedings initiated under § 1228, including reasonable
fear review proceedings, where § 1228(b)(4)(B) explicitly
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ZUNIGA V. BARR 3
provides that non-citizens have the privilege of being
represented, at no expense to the government, by counsel,
and nothing in the language of § 1228 indicates that the right
to counsel is conditional or limited only to certain types of
proceedings initiated under that statute, expedited or
otherwise. The panel explained that subsections of § 1228
reinforce that right by requiring that proceedings for the
removal of criminal non-citizens be conducted in conformity
with § 1229a, which in turn provides a statutory right to
counsel in ordinary removal proceedings, and by requiring
the government to take reasonable efforts not to impair an
individual’s access and right to counsel in considering
whether to detain non-citizens. The panel also observed that
the broader legislative context outside of the specific
provisions dealing with expedited removal proceedings for
criminal non-citizens supports the conclusion that there is a
right to counsel in reasonable fear proceedings.
The panel noted that its conclusion was not undermined
by the fact that § 1228 was enacted before the reasonable
fear regulations were promulgated, because when § 1228
was enacted, the United States was already a signatory to the
Convention Against Torture, and one must presume that
Congress intended for the expedited removal procedures
prescribed in § 1228(b) to conform to the Convention’s
requirements. The panel further noted that Congress
confirmed that intention shortly thereafter by commanding
the appropriate agencies to prescribe regulations to
implement the obligations of the United States under the
Convention, which the Immigration and Naturalization
Service did when it promulgated regulations making clear
that reasonable fear proceedings for aggravated felons would
be part of expedited removal proceedings governed by
§ 1228(b).
4 ZUNIGA V. BARR
The panel also noted that its holding was not inconsistent
with Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.
2007), because Morales-Izquierdo concerned the other
category of non-citizens to whom the reasonable fear
regulations apply, non-citizens subject to the reinstatement
of a previous removal order, and held only that non-citizens
have no statutory right to counsel at the initial stage of
reinstatement proceedings, but did not address whether a
statutory right to counsel attached during the subsequent
reasonable fear review before an IJ.
The panel declined to give deference to a 1999 Executive
Office of Immigration Review memorandum interpreting
regulations at 8 C.F.R. § 208.31 as giving IJs discretion to
decide whether a non-citizen may be represented by counsel.
The panel noted that the government was correct that the
regulations specify only that non-citizens may be
represented by counsel in the initial reasonable fear
interview before an asylum officer, and that they are silent
as to representation by counsel in the review hearing before
the IJ. However, the panel concluded that EOIR’s
interpretation conflicted with the plain text of § 1228.
The panel held that the IJ violated Zuniga’s Fifth
Amendment right to due process by failing to obtain a
knowing and voluntary waiver of his right to counsel, and
that Zuniga did not need to show prejudice where he was
denied his statutory right. The panel therefore remanded for
a new hearing in which Zuniga’s right to counsel is honored.
ZUNIGA V. BARR 5
COUNSEL
Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Petitioner.
Nehal Kamani (argued), Kathryn M. McKinney, and Sara J.
Bayram, Attorneys; Stephen J. Flynn and John W. Blakeley,
Assistant Directors; Joseph H. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
ORDER
The opinion filed August 20, 2019, reported at 934 F.3d
1083, is hereby amended. The amended opinion is filed
concurrently with this order.
With this amendment, the panel has unanimously voted
to deny Respondent’s petition for panel rehearing. The
petition for panel rehearing is DENIED. Further petitions
for rehearing or rehearing en banc may be filed.
OPINION
PER CURIAM:
This case presents us with a simple question: do non-
citizens subject to expedited removal under 8 U.S.C. § 1228
have a statutory right to counsel in reasonable fear
proceedings before immigration judges? The answer, based
on the plain language of § 1228, is yes.
6 ZUNIGA V. BARR
Petitioner Baldemar Zuniga contends that in his hearing
before an Immigration Judge (“IJ”) to review a negative
reasonable fear determination made by an asylum officer,
the IJ denied him his right to counsel. Because we conclude
that Zuniga had a statutory right to counsel, that the colloquy
at the beginning of the hearing before the IJ was inadequate
to waive that right, and that no showing of prejudice is
required, we reverse and remand for further proceedings in
which Zuniga is given the opportunity to proceed with
counsel.
I.
Baldemar Zuniga is a Mexican national who illegally
entered the United States as a child. In 2012, he was
convicted of participating in a conspiracy to manufacture
and distribute drugs and launder money. Zuniga testified in
open court against two of his co-conspirators, who were part
of Mexico’s notorious Knights Templar cartel.
While he was in prison, immigration authorities served
Zuniga with a Notice of Intent to Issue a Final
Administrative Removal Order. Because he had been
convicted of a drug trafficking aggravated felony, Zuniga
was placed in expedited removal proceedings pursuant to
8 U.S.C. § 1228(b). During an interview with Immigration
and Customs Enforcement (“ICE”), he expressed a fear that,
if removed to Mexico, he would face torture or persecution
by the cartel as retribution for his testimony. He was then
referred to an asylum officer for an interview to evaluate
whether his fear was “reasonable.”
At the beginning of the reasonable fear interview, the
asylum officer explained that Zuniga had “the right to have
[his] attorney present for the interview.” Zuniga stated that
he had an attorney helping with his reasonable fear case but
ZUNIGA V. BARR 7
that he was willing to continue with the reasonable fear
interview without his attorney. 1 The asylum officer then
proceeded with the interview questions and concluded that
Zuniga had not established a reasonable fear of persecution
or torture.
Zuniga requested review of the asylum officer’s negative
reasonable fear determination by an Immigration Judge.
Zuniga’s case was referred to the Immigration Court in San
Francisco, California. The notice of referral to the IJ
included the following language: “You may be represented
in this proceeding, at no expense to the government, by an
attorney or other individual authorized and qualified to
represent persons before an Immigration Court. If you wish
to be so represented, your attorney or representative should
appear with you at this hearing.”
Zuniga appeared at the hearing by video conference from
a detention center in Mesa Verde, California. 2 At the outset
of the hearing, when announcing the case number and who
was participating, the IJ stated that Zuniga did “not have a
lawyer.” Shortly thereafter, the IJ engaged in the following
colloquy with Zuniga:
1
The asylum officer’s notes from the interview spell the name of
the attorney Zuniga mentioned as “Robert Pawl.” His current attorney,
Robert Pauw, confirmed at oral argument before our court that he was
also representing Zuniga at the time of Zuniga’s reasonable fear
interview, and that he was the same attorney Zuniga mentioned to the
asylum officer.
2
In a later declaration, Zuniga testified that the video setup “made
it extremely difficult to understand everything that was happening” and
that he had been under the impression that the hearing “was going to be
a quick hearing where [he] was going to . . . ask for another extension.”
8 ZUNIGA V. BARR
JUDGE: In these proceedings you have the
right to counsel of your own choosing, but the
government will not pay for your attorney.
You should have received a copy of the free
legal service list. Did you get that list?
ZUNIGA: Yes.
JUDGE: So, sir, do you have a lawyer?
ZUNIGA: I do not.
JUDGE: All right, sir, were you interviewed
by an asylum officer regarding your fear of
returning to Mexico?
The IJ then proceeded with the substance of the hearing. The
IJ ultimately agreed with the asylum officer that Zuniga
lacked “a reasonable fear of persecution on account of a
ground protected by the law[s] of the United States.”
Zuniga petitioned our court for review of that decision,
arguing that his due process rights were violated by the use
of the video conference in his reasonable fear review hearing
before the IJ and by the IJ’s failure to obtain a proper waiver
of his right to an attorney in that proceeding. He also argued
that the IJ erred in determining that he lacked a reasonable
fear of persecution on a protected ground and in evaluating
his fear of torture.
II.
We review de novo due process challenges to reasonable
fear proceedings. Colmenar v. I.N.S., 210 F.3d 967, 971 (9th
Cir. 2000).
ZUNIGA V. BARR 9
III.
A.
In 1999, the Department of Justice created the reasonable
fear interview to serve as a “screening process to evaluate
torture claims for aliens subject to streamlined
administrative removal processes for aggravated felons . . .
and for aliens subject to reinstatement of a previous removal
order.” Regulations Concerning the Convention Against
Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999). These
two groups of non-citizens are ineligible for asylum but may
be entitled to withholding or deferral of removal under
§ 241(b)(3) of the Immigration and Nationality Act (“INA”),
currently codified at 8 U.S.C. § 1231(b)(3), or under the
Convention Against Torture. 3 Regulations Concerning the
Convention Against Torture, 64 Fed. Reg. at 8485.
3
The reasonable fear screening process was modeled on the credible
fear screening process, which had previously been created to provide a
limited avenue for relief for inadmissible arriving aliens who are subject
to expedited removal under 8 U.S.C. § 1225. Such non-citizens can be
removed without further review unless they express either a credible fear
of persecution or torture in the country of removal or an intent to seek
asylum. 8 U.S.C. § 1225(b)(1)(A)–(B); 8 C.F.R. §§ 208.30, 1208.30.
Credible fear requires establishing a “significant possibility” that the
non-citizen could be eligible for asylum if given an opportunity in a more
fulsome proceeding. 8 U.S.C. § 1225(b)(1)(B)(v). The reasonable fear
screening process was designed to fulfill a similar function for non-
citizens being deported under 8 U.S.C. § 1228, but it requires them to
meet a more demanding standard—they must demonstrate a “reasonable
possibility” of persecution or torture in the country of removal.
Regulations Concerning the Convention Against Torture, 64 Fed. Reg.
at 8485 (“Because the standard for showing entitlement to the[] forms of
protection [available to these non-citizen aggravated felons] (a
probability of persecution or torture) is significantly higher than the
standard for asylum (a well-founded fear of persecution), the screening
10 ZUNIGA V. BARR
As a first step of the reasonable fear process, non-citizens
who express a fear of returning to their country of removal
to ICE are interviewed in a “non-adversarial manner” by an
asylum officer to determine whether they have a reasonable
fear of persecution or torture. 8 C.F.R. §§ 208.31(a), (c),
1208.31(a), (c). 4 If the asylum officer determines that a non-
citizen has a reasonable fear, he will be referred to an IJ for
a merits hearing to determine eligibility for withholding of
removal. Id. § 208.31(e). However, if the asylum officer
determines that the non-citizen “does not have a reasonable
fear of persecution or torture,” he “will be afforded the
opportunity for an expeditious review of the negative
screening determination by an immigration judge.”
Regulations Concerning the Convention Against Torture,
64 Fed. Reg. at 8485 (emphasis added); see also 8 C.F.R.
§ 208.31(f)–(g). If a non-citizen exercises his right to
challenge a negative reasonable fear determination, the IJ
reviews the asylum officer’s determination de novo.
8 C.F.R. § 208.31(f)–(g); Bartolome v. Sessions, 904 F.3d
803, 809 (9th Cir. 2018).
If the IJ upholds the negative screening determination, it
constitutes a final order of removal. 8 C.F.R. § 208.31(g)(1).
Because the IJ’s decision is the final agency action on the
standard adopted for initial consideration of withholding and deferral
requests in these contexts is also higher.”); see also 8 C.F.R. §§ 208.31,
1208.31.
4
There are two identical sets of regulations contained in Chapters I
and V of 8 C.F.R. that are applicable to the Department of Homeland
Security and the Executive Office for Immigration Review, respectively.
Aliens and Nationality; Homeland Security; Reorganization of
Regulations, 68 Fed. Reg. 9824, 9825 (Feb. 28, 2003). Because the text
is the same in both sets of regulations, for the sake of simplicity we will
refer only to one set throughout the remainder of this opinion.
ZUNIGA V. BARR 11
reasonable fear question, such a final removal order is ripe
for judicial review by a federal court of appeals. Ayala v.
Sessions, 855 F.3d 1012, 1015–16 (9th Cir. 2017).
B.
Zuniga argues that he had a right to counsel in his
reasonable fear review hearing before the IJ, that he did not
waive that right because his colloquy with the IJ was
insufficient to demonstrate that he made a knowing and
voluntary waiver, and that this error requires automatic
reversal. The Government does not contest that, if Zuniga
had a right to counsel, there was no adequate waiver here. 5
Rather, the Government rests its defense to this petition
primarily on the argument that there is no statutory right to
counsel in reasonable fear proceedings. This argument
clearly fails.
Expedited removal proceedings for non-citizens
convicted of committing aggravated felonies are a creation
of INA § 242A(b), later redesignated as INA § 238(b) and
currently codified at 8 U.S.C. § 1228(b). Reasonable fear
proceedings are in turn part of those expedited removal
proceedings. Although the legal provisions requiring the
government to conduct reasonable fear proceedings as part
of expedited removal proceedings are set forth in
regulations, not in § 1228 itself, those regulations were
promulgated pursuant to the Attorney General’s authority
5
As explained below, we have previously held that if a non-citizen
appears without counsel in a removal hearing, “there must be a knowing
and voluntary waiver of the right to counsel” before the hearing can
proceed. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). A
valid waiver requires that the IJ “(1) inquire specifically as to whether
petitioner wishes to continue without a lawyer; and (2) receive a knowing
and voluntary affirmative response.” Id. (citations omitted).
12 ZUNIGA V. BARR
under § 1228. See 8 C.F.R. § 238.1(f)(3) (mandating that an
immigration “officer shall, upon issuance of a Final
Administrative Removal Order [pursuant to § 1228(b)],
immediately refer the alien’s case to an asylum officer to
conduct a reasonable fear determination in accordance with
[8 C.F.R.] § 208.31”); Regulations Concerning the
Convention Against Torture, 64 Fed. Reg. at 8494 (citing
§ 1228 as the source of authority for 8 C.F.R. § 238.1).
Section 1228 explicitly provides that non-citizens “shall
have the privilege of being represented (at no expense to the
government) by [] counsel.” 8 U.S.C. § 1228(b)(4)(B).
Other subsections of § 1228 reinforce the right to counsel.
The statute provides, for example, that the “proceedings [for
removal of criminal non-citizens] shall be conducted in
conformity with section 1229a,” 8 U.S.C. § 1228(a)(1),
which provides a statutory right to counsel in ordinary
removal proceedings, 8 U.S.C. § 1229a(b)(4)(A). 6 Section
1228 also states that in deciding where to detain non-citizens
under this section, “the Attorney General shall make
reasonable efforts to ensure that the alien’s access to counsel
and right to counsel under [8 U.S.C.] section 1362,” which
likewise provides for the right to counsel in removal
proceedings, “are not impaired.” 8 U.S.C. § 1228(a)(2).
This language makes clear that the statute contemplates
a right to counsel in removal proceedings initiated under
8 U.S.C. § 1228, which include reasonable fear review
6
There is some overlap between 8 U.S.C. § 1228(a), which
describes the general procedures for removing criminal non-citizens, and
§ 1228(b), the provision under which Zuniga was removed, which
applies specifically to the removal of criminal non-citizens who are not
permanent residents. Both emphasize the need to conform with the
procedures described in 8 U.S.C. § 1229a, but § 1228(b) provides some
specific procedures applicable only to non-citizens who are not
permanent residents.
ZUNIGA V. BARR 13
proceedings. 7 Nothing in the language of § 1228 indicates
that the right to counsel is conditional or limited only to
certain types of proceedings initiated under that statute,
expedited or otherwise. Cf. United States v. Reyes-Bonilla,
671 F.3d 1036, 1045 (9th Cir. 2012) (noting, with citation to
8 U.S.C. § 1228, that the “right to counsel in expedited
removal proceedings is . . . secured by statute”).
The broader legislative context—outside of the specific
provisions dealing with expedited removal proceedings for
criminal non-citizens—also supports the conclusion that
there is a right to counsel in reasonable fear proceedings.
The INA gives non-citizens the right to be represented by an
7
This conclusion is not undermined by the fact that § 1228 was
enacted before the reasonable fear regulations were promulgated. When
§ 1228 was enacted, the United States was already a signatory to the
Convention Against Torture. See Regulations Concerning the
Convention Against Torture, 64 Fed. Reg. at 8478. We must therefore
presume that Congress intended for the expedited removal procedures
prescribed in § 1228(b) to conform to the Convention’s requirements.
See Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005)
(noting “[t]he presumption that Congress intends to legislate in a manner
consistent with international law”). Congress confirmed this intention
shortly thereafter by commanding “the appropriate agencies [to]
prescribe regulations to implement the obligations of the United States
under . . . [the] Convention Against Torture.” Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(b), 112 Stat.
2681, 2681-822. The Immigration and Naturalization Service then
promulgated the reasonable fear regulations to implement the
Convention’s requirements. See Regulations Concerning the
Convention Against Torture, 64 Fed. Reg. at 8478. In doing so, the
Service made clear that reasonable fear proceedings for aggravated
felons would be part of expedited removal proceedings governed by
§ 1228(b). See id. at 8479 (“[T]he rule establishes a new screening
process to rapidly identify and assess both claims for withholding of
removal . . . and for protection under the Convention by . . . aliens
subject to administrative removal for aggravated felons under section
238(b) of the Act.”).
14 ZUNIGA V. BARR
attorney in most immigration proceedings as long as the
government does not have to bear the expense. In particular,
8 U.S.C. § 1362 provides that “[i]n any removal proceedings
before an immigration judge and in any appeal proceedings
before the Attorney General from any such removal
proceedings,” non-citizens “shall have the privilege of being
represented (at no expense to the Government)” by counsel
of their choosing. See also 8 U.S.C. § 1229a(b)(4)(A)
(“[T]he alien shall have the privilege of being represented,
at no expense to the Government, by counsel of the alien’s
choosing who is authorized to practice in such
proceedings.”). Because the text of § 1228 is both “clear and
consistent with the statutory scheme at issue, the plain
language of the statute is conclusive” in providing a statutory
right to counsel. Emmert Indus. Corp. v. Artisan Assocs.,
Inc., 497 F.3d 982, 987 (9th Cir. 2007) (quoting Molski v.
M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007)). 8
8
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007), is
not to the contrary. That case concerned the other category of non-
citizens to whom the reasonable fear regulations apply—non-citizens
subject to the reinstatement of a previous removal order. See id. at 487;
8 C.F.R. § 208.31(a). We held that such non-citizens have no statutory
right to counsel at the initial stage of reinstatement proceedings, during
which an immigration officer performs the “ministerial” task of
determining whether the non-citizen’s prior removal order should be
reinstated. See Morales-Izquierdo, 486 F.3d at 491, 497. We did not
address whether a statutory right to counsel attached during the
subsequent reasonable fear review before an IJ. See id. at 497 (expressly
contrasting the reinstatement determination conducted by an
immigration officer with “proceedings before an immigration judge,”
where “the INA extends the right to representation” in some instances);
see also Bonilla v. Sessions, 891 F.3d 87, 92 (3d Cir. 2018) (holding that
8 C.F.R. § 208.31 did not “explicitly invest[]” a non-citizen with a right
to counsel at the reasonable fear review before an IJ as a regulatory
matter, but leaving open “the question . . . whether [the non-citizen]
otherwise has such a right”).
ZUNIGA V. BARR 15
The Government resists this conclusion, arguing that the
IJ has discretion to decide whether a non-citizen may be
represented by counsel. The Government’s argument is
premised on a 1999 memo from the Executive Office for
Immigration Review (“EOIR”). That memo interpreted
8 C.F.R. § 208.31 as giving an IJ the right to decide whether
a non-citizen may be represented in the negative reasonable
fear determination review hearing because the regulation did
not explicitly mention the right to counsel in those
proceedings. See Exec. Office for Immigration Review,
Office of the Chief Immigration Judge, Operating Policies
and Procedures Memorandum No. 99-5: Implementation of
Article 3 of the UN Convention Against Torture 8 (1999)
(“With regard to representation in reasonable fear review
proceedings, the . . . regulations are . . . silent. . . . Since
there is no specific regulatory guidance on this point, the
issue is left to the discretion of the Immigration Judge.”).
The Government is correct that the regulations specify
only that non-citizens may be represented by counsel in the
initial reasonable fear interview before an asylum officer,
and that they are silent as to representation by counsel in the
review hearing before the IJ. Compare 8 C.F.R. § 208.31(c),
with 8 C.F.R. § 208.31(g). But its argument that we should
defer to EOIR’s interpretation of that silence fails because
that interpretation conflicts with the plain text of 8 U.S.C.
§ 1228. We “need not accept an agency’s interpretation of
its own regulations if that interpretation is inconsistent with
the statute under which the regulations were promulgated.”
Turtle Island Restoration Network v. U.S. Dep’t of
Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quotation
marks omitted); see also Auer v. Robbins, 519 U.S. 452, 461
(1997) (holding that courts should generally defer to an
agency’s interpretation of its own regulation unless, among
other circumstances, that interpretation is “plainly
16 ZUNIGA V. BARR
erroneous” (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 359 (1989)). 9 We therefore conclude
that Zuniga had a right to representation by an attorney in his
reasonable fear review hearing before the IJ.
We have previously held that “[a]lthough there is no
Sixth Amendment right to counsel in an immigration
hearing, Congress has recognized [a right to counsel] among
the rights stemming from the Fifth Amendment guarantee of
due process” by codifying it. Tawadrus v. Ashcroft,
364 F.3d 1099, 1103 (9th Cir. 2004); see also Rios-Berrios
v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985) (“[D]ue process
mandates that [a non-citizen] is entitled to counsel of his own
choice at his own expense under terms of the [INA].”). And,
further, before a petitioner continues without counsel in an
immigration proceeding for which there is a statutory right
to counsel, due process mandates that “there must be a
knowing and voluntary waiver of the right to counsel,”
which requires that the IJ “(1) inquire specifically as to
whether petitioner wishes to continue without a lawyer; and
(2) receive a knowing and voluntary affirmative response.”
Tawadrus, 364 F.3d at 1103 (citations omitted). As the
Government concedes, Zuniga’s colloquy with the IJ was
9
Nor is the agency’s interpretation persuasive enough to otherwise
command respect. See Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944) (explaining that “[t]he weight of” an agency interpretation “will
depend upon the thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade, if lacking power to
control”). In addition to being contrary to the statute, the EOIR memo’s
interpretation could lead to absurd results. For example, a non-citizen
who had been informed by his hearing notice that he could bring an
attorney to represent him might arrive at the hearing only to learn that
counsel was barred from the hearing at the discretion of the IJ.
ZUNIGA V. BARR 17
inadequate to effect a valid waiver of the right to counsel
under Tawadrus.
The Government contends that a remand is nevertheless
unavailable to Zuniga because he cannot show prejudice
from the lack of counsel. This contention is foreclosed by
Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), in
which we held 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.” Id. at 1093–94. 10
IV.
For the reasons described above, we conclude that the IJ
violated Zuniga’s right to counsel in his reasonable fear
review proceeding by failing to obtain a valid waiver, and
that Zuniga is entitled to a new hearing before an IJ in which
his right to counsel is honored. Given this conclusion, we
need not reach Zuniga’s other challenges to the proceedings
before the IJ or to the IJ’s reasoning.
10
Gomez-Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018), is not
to the contrary. There, we held that we could not presume prejudice
where a non-citizen, Gomez-Velazco, was denied counsel during one
“discrete stage” of expedited removal proceedings—his initial
interaction with officers from the Department of Homeland Security. Id.
at 994–95. In Gomez-Velazco, we distinguished Montes-Lopez on the
ground that, after the discrete phase in which he lacked counsel, Gomez-
Velazco was able to consult with counsel before his removal order was
actually executed. Id. at 993–94. The same was not true here. Zuniga
was denied his right to counsel at the final stage of the reasonable fear
proceeding—and thus, unlike the situation in Gomez-Velazco, Zuniga’s
attorney had no later opportunity to “remedy any damage done by [his]
client’s un-counseled admissions or waivers.” Id. at 994.
18 ZUNIGA V. BARR
The Petition for Review is GRANTED and we
REMAND for further proceedings consistent with this
opinion.