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Ninth Circuit Confirms Right to Counsel in Asylum Hearings

A Ninth Circuit panel ruled Tuesday that noncitizens are entitled to attorney representation during removal proceedings, and ordered an immigration judge to re-hear a Mexican national’s deportation case because it was unclear whether he willingly gave up his right to counsel.

(CN) - Ruling that noncitizens are entitled to attorney representation during removal proceedings, the Ninth Circuit ordered an immigration judge Tuesday to rehear the deportation case of a Mexican national who disputes that he willingly gave up his right to counsel.

The three-judge panel concluded the very brief colloquy Baldemar Zuniga had with an immigration judge about his lack of counsel did not constitute a voluntary waiver of his right to an attorney. Zuniga appeared before the judge via a video conference from an immigration detention center in Mesa Verde, California, and later said the setup “made it extremely difficult to understand everything that was happening.”

According to the ruling, the exchange went:

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?


JUDGE: So, sir, do you have a lawyer?

ZUNIGA: I do not.

The judge then continued with the hearing.

“It was such a brief question-and-answer that he was not given the opportunity to say he has a lawyer and wanted to wait,” said Robert Pauw, a Seattle-based immigration lawyer who represents Zuniga, in a phone interview Tuesday. Pauw was out of the country at the time, and he said his client believed the hearing would be continued to when Pauw returned.

“He was quite confused about what was going on. He was not told this was a final hearing, where they were going to make a final decision in the case. He thought the case was going to be set for when he could have his lawyer present," Pauw said.

The immigration judge ultimately found Zuniga did not have a reasonable fear of persecution to avoid being sent back to Mexico.

Zuniga was brought to the United States as a child and was convicted in 2012 of participating in a drug distribution and money-laundering conspiracy. He testified in open court against two co-conspirators who were members of the Mexican Knights Templar cartel. Because he was convicted of an aggravated felony, Immigration and Customs Enforcement began deportation proceedings.

But Zuniga was eligible to apply for a withholding of removal and protection under the under the U.N. Convention Against Torture. Zuniga told ICE that he feared for his life and believed he would be tortured by the cartel if he returned to Mexico.

An asylum officer explained to Zuniga that he had a right to an attorney at his interview, and although Zuniga had an attorney at the time, he told the officer he was willing to proceed without his attorney present.

The panel was unconvinced that Zuniga voluntarily waived his right to counsel, and reiterated the Immigration Nationality Act protects a noncitizen's right to counsel, even during reasonable fear proceedings.

“This case presents us with a simple question: Do noncitizens 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,” the panel wrote, reversing the immigration judge in a per curiam opinion.

“The government does not contest that, if Zuniga had a right to counsel, there was no adequate waiver here. 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,” the judges’ opinion said. “This argument clearly fails.

“Section 1228 explicitly provides that noncitizens ‘shall have the privilege of being represented (at no expense to the government) by counsel,’” the panel continued. “Nothing in the language of § 1228 indicates that the right to counsel is conditional or limited only to certain types of proceedings authorized under that statute, expedited or otherwise.”

They added, “The INA gives noncitizens the right to be represented by an attorney in most immigration proceedings as long as the government does not have to bear the expense.”

The judges ordered a new hearing for Zuniga before an immigration judge “in which his right to counsel is honored.”

Pauw said there's underlying problem in immigration court of too little attention being paid to the individual circumstances of reasonable fear cases.

“These reasonable fear hearings in front of immigration judges have been done very quickly and judges might spend two to five minutes looking at a case. Quite often I see decisions made in a perfunctory manner – they might just check a box or say torture not likely. They don’t even use completely sentences when issuing their decisions,” Pauw said. “There’s so much riding on it. It’s just really extremely little attention given to the actual facts and circumstances and whether the person really might have a claim.”

U.S. Circuit Judges Andrew Kleinfeld and Michelle Friedland and U.S. District Judge William Pauley, sitting by designation from the Southern District of New York, made up the panel. Kleinfeld was appointed by George H.W. Bush, Friedland by Barack Obama and Pauley by Bill Clinton.

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