Ram v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL JONATHAN RAM, 
Petitioner, No. 05-71190
v.
 Agency No.
A41-812-914
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 16, 2008*
San Francisco, California
Filed June 26, 2008
Before: Stephen S. Trott and Sidney R. Thomas,
Circuit Judges, and Michael R. Hogan,** District Judge.
Opinion by Judge Trott
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Michael R. Hogan, United States District Judge for
the District of Oregon, sitting by designation.
7569
RAM v. MUKASEY 7571
COUNSEL
Ajai Mathew, Law Office of Manpreet Singh Gahra, Berke-
ley, California, for the petitioner.
Nancy E. Friedman, U.S. Department of Justice, Washington,
D.C., for the respondent.
7572 RAM v. MUKASEY
OPINION
TROTT, Circuit Judge:
Joel Jonathan Ram petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision that he is removable
because he was convicted of (1) an aggravated felony and (2)
a controlled substance violation. The BIA determined also
that Ram’s hearing before an Immigration Judge (“IJ”)
afforded him adequate due process. We have jurisdiction pur-
suant to 8 U.S.C. § 1252(a)(2)(D) and conclude that Ram was
denied due process and his statutory right to counsel. Because
we conclude also that Ram was prejudiced by the denial, we
grant his petition for review and remand to the BIA with
instructions to order a new hearing before an IJ. We need not
reach the remainder of Ram’s claims.
I. BACKGROUND
In the original Notice To Appear (“NTA”), the Department
of Homeland Security (“DHS”) charged Ram with being
deportable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been
convicted of a controlled substance violation.
At his first hearing on July 12, 2004, Ram was informed by
a pre-recorded statement of his rights, including the right to
be represented by an attorney during the removal proceedings
as well as the right to deny the charges against him. The IJ
then granted Ram’s request for a continuance in order for him
to meet with an attorney.
Ram’s second hearing was held August 12, 2004. It began:
Q. Your hearing was set over until today in order
for you to obtain the services of an attorney.
Have you done that?
A. No. No.
RAM v. MUKASEY 7573
Q. Okay. Well, how do you — are you ready to
proceed with your case and enter pleadings?
A. Yes.
The IJ then informed Ram that the DHS had filed an addi-
tional charge of removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii) on the ground that he had been convicted
of the aggravated felony of trafficking in a controlled sub-
stance. The IJ told Ram:
[This new charge is] an aggravated felony. If that
charge is sustained, you won’t have any relief. If the
[8 U.S.C. § 1227(a)(2)(B)(i)] charge is simply there,
you would have relief in the form of cancellation of
removal. Since you . . . just received this, I will give
you a continuance to prepare to answer it, to see if
you can get an attorney if that’s what you would like
to do.
Ram’s third hearing was held August 25, 2004. It began by
the IJ asking,
Q. Sir, your case was originally set over because
you wanted time to get an attorney. It was then set
over so you could prepare to answer the additional
charges. Are you ready to proceed with your case
...?
A. Yes, Your Honor.
The IJ then opened the hearing and inquired whether Ram
was convicted (1) of possession of cocaine base in violation
of CAL. HEALTH & SAFETY CODE § 11350(a) and (2) of trans-
portation or sale of cocaine base in violation of CAL. HEALTH
& SAFETY CODE § 11352. To both questions, Ram answered,
“Yes, Your Honor.” The IJ then explained
§§ 1227(a)(2)(A)(iii) and (B)(i) regarding eligibility for
7574 RAM v. MUKASEY
removal and asked Ram if he agreed he could be removed
from the United States on each charge. Ram again answered,
“Yes, Your Honor.”
Two problems then arose. First, Ram told the IJ that as of
1989 or 1990, his father was a citizen of the United States.
Ram indicated he was five or six when his father became a
citizen. Moreover, his mother was a “residential” since “ ‘80
- - ‘88.” This revelation caused the IJ to consider the Child
Citizenship Act of 2000, 8 U.S.C. § 1431. However, the IJ
was not certain of the effective date of the Act: “I want to say
it’s the 20th. Isn’t it?” Government’s counsel was unsure: “I’d
like to say it’s February 14, 2001,” to which the IJ said, “I
want to say the 20th for some reason.” Then the government
switched to the effective date of February 27, 2001 for those
not yet 18. Based on this exchange, the IJ told Ram, “You
missed [eligibility for citizenship under the Child Citizenship
Act of 2000] by a couple of weeks.”
The second problem was that the government did not have
in its possession documents evincing the alleged conviction,
so the IJ suspended his oral order of removal until the docu-
ments could be submitted.
At the next hearing, however, when the papers were avail-
able, the IJ found them “confusing,” and questioned Ram to
try to resolve an ambiguity on the face of the documents.
Somewhat vaguely, Ram disputed the nature of the charge to
which he plead pursuant to a deal, but to no avail. The IJ
ordered him removed on the basis of two charges: (1) that he
had been convicted of a controlled substance offense, and (2)
that he had been convicted of an aggravated felony, i.e., drug
trafficking.
II. DISCUSSION
Questions of law and due process challenges to removal
orders are reviewed de novo. Colmenar v. INS, 210 F.3d 967,
RAM v. MUKASEY 7575
971 (9th Cir. 2000). “The Fifth Amendment guarantees due
process in deportation proceedings.” Id. It is appropriate to
grant a petition for rehearing on due process grounds where
“the proceeding was ‘so fundamentally unfair that the alien
was prevented from reasonably presenting his case.’ ” Id.(quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir.
1986). Thus, in order to prevail upon his due process claims,
Ram must establish that: (1) he has been denied due process
and (2) the denial of his due process rights prejudiced him. Id.[1] “Although there is no Sixth Amendment right to coun-
sel in an immigration hearing, Congress has recognized it
among the rights stemming from the Fifth Amendment guar-
antee of due process that adhere to individuals that are the
subject of removal proceedings.” Tawadrus v. Ashcroft, 364
F.3d 1099, 1103 (9th Cir. 2004); see also 8 U.S.C.
§§ 1229a(b)(4)(A), 1362. “Although IJs may not be required
to undertake Herculean efforts to afford the right to counsel,
at a minimum they must [(1)] inquire whether the petitioner
wishes counsel, [(2)] determine a reasonable period for
obtaining counsel, and [(3)] assess whether any waiver of
counsel is knowing and voluntary.” Biwot v. Gonzales, 403
F.3d 1094, 1100 (9th Cir. 2005); see also Tawadrus, 364 F.3d
at 1103.
[2] The first and second of these requirements were met
here. However, we conclude that the third element was not.
“In order for a waiver to be valid, an IJ must generally: (1)
inquire specifically as to whether petitioner wishes to con-
tinue without a lawyer; and (2) receive a knowing and volun-
tary affirmative response.” Tawadrus, 364 F.3d at 1103(internal citations omitted). “If the petitioner does not affirma-
tively waive his right to counsel, the IJ must inquire whether
there is good cause to grant petitioner more time to obtain
counsel.” Biwot, 403 F.3d at 1100.
The government argues that Ram was provided due process
of law notwithstanding the absence of counsel because he
7576 RAM v. MUKASEY
does not “point to anything that would indicate he was unso-
phisticated, incompetent, or in any way confused,” nor does
the record indicate “he was ‘misled’ or otherwise not
informed about the correct procedures.” This argument misses
the point that, even for the most competent alien, the IJ has
an affirmative duty to assess whether any waiver of counsel
is knowing and voluntary. Id.[3] Our precedent illustrates that Ram cannot be said to
have waived his right to counsel. “The IJ neither asked [Ram]
whether he wished to proceed without an attorney nor deter-
mined whether there was good cause to grant [him] more time
to obtain counsel.” Id. Furthermore, “at no time did [the IJ]
direct any questions to [Ram] concerning the implications of”
proceeding without an attorney. Tawadrus, 364 F.3d at 1104.
Making these inquiries is not a Herculean effort, and by not
doing so, the IJ failed adequately to assess whether the waiver
by Ram was knowing and voluntary. See id. at 1103-05;
Biwot, 403 F.3d at 1100.
[4] It is important to clarify that this affirmative duty does
not and should not entitle or allow a petitioner to “game the
system” or to improperly delay the judgment day by asking
for endless continuances or by failing to be diligent in the pur-
suit of representation. Quite to the contrary, “[a]bsent a show-
ing of clear abuse, we typically do not disturb an IJ’s
discretionary decision not to continue a hearing.” Biwot, 403
F.3d at 1099. However, in order to proceed without counsel,
an IJ must comply with the requirements of Tawadrus, and
determine, in the absence of a showing of good cause for an
additional continuance, that the right to counsel has been for-
feited.
[5] To demonstrate prejudice, and thus a denial of due pro-
cess, Ram must show that the denial of his right to counsel
potentially affected the outcome of the proceedings. Baltazar-
Alcazar v. INS, 386 F.3d 940, 947 (9th Cir. 2004). In making
this assessment, we acknowledge the difficult situation in
RAM v. MUKASEY 7577
which Ram found himself. We said in Biwot, “[t]he high
stakes of a removal proceeding and the maze of immigration
rules and regulations make evident the necessity of the right
to counsel. The proliferation of immigration laws and regula-
tions has aptly been called a labyrinth that only a lawyer
could navigate.” 403 F.3d at 1098.
[6] Ram’s initial perfunctory responses to the IJ’s questions
about his criminal convictions demonstrate he did not under-
stand either his role in the proceedings or that the government
had the burden of proving he was convicted of an aggravated
felony or a controlled substance violation. Moreover, the doc-
umentary evidence eventually produced with respect to Ram’s
“convictions” is far from clear. His counsel now argues that
“an attorney would have helped Ram understand his criminal
record as well as his legal rights and evidentiary burden, so
that he would not have admitted to allegations and charges
that were spurious and that the DHS could not substantiate
with proper documentation.” Counsel plausibly says also that
“the most that can be proven from the record is that Ram was
convicted for narcotics possession . . . ,” and that he is not an
aggravated felon, and thus, is eligible for cancellation of
removal, asylum, and withholding of removal. As in Biwot,
“[w]ith an attorney, he would not have been forced . . . to
present a case with no evidence [and virtually no argument,
and to] answer the IJ’s inquiries without any idea of their
legal significance.” Id. at 1100.
[7] Thus, we conclude that the proceedings’ outcome was
potentially affected by denial of his right to counsel, and Ram
was thus prejudiced thereby.1 Baltazar-Alcazar, 386 F.3d at
948.
1
Because we conclude 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. Biwot, 403 F.3d at 1100; Baltazar-
Alcazar, 386 F.3d at 947; United States v. Ahumada-Aguilar, 295 F.3d
943, 950 (9th Cir. 2002).
7578 RAM v. MUKASEY
III. POSTSCRIPT
“We have reiterated many times that an alien cannot appear
pro se without a knowing and voluntary waiver of the right to
counsel.” Biwot, 403 F.3d at 1100 (citing Velasquez Espinosa
v. INS, 404 F.2d 544, 546 (9th Cir. 1968)). Ram’s fatal hear-
ing occurred on August 25, 2004, four months after our opin-
ion in Tawadrus, and thirty-six years after our opinion in
Velasquez Espinosa. Granting a petition and starting the pro-
cess anew is hardly an efficient way to process these matters.
We would not be required to do so if all IJs were made aware
of their due process responsibilities with respect to the right
to counsel. We respectfully hope this opinion will contribute
to their awareness of these important requirements.
Petition for Review GRANTED and REMANDED to
the BIA with instructions to order a new removal hearing
before an IJ.