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Zuniga v. Barr

United States Court of Appeals, Ninth Circuit

August 20, 2019

Baldemar Zuniga, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted May 17, 2019 Seattle, Washington

          On Petition for Review of an Immigration Judge's Decision Agency No. A089-247-110.

          Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Washington, for Petitioner.

          Nehal Kamani (argued) and Kathryn M. McKinney, Attorneys; Stephen J. Flynn, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Andrew J. Kleinfeld and Michelle T. Friedland, Circuit Judges, and William H. Pauley III, [*] District Judge.

         SUMMARY [**]

         Immigration

         The panel granted 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 immigration judges, 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 8 U.S.C. § 1228, which governs expedited removal proceedings for non-citizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. The panel further explained that other 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 directing the government to take reasonable efforts not to impair an individual's access and right to counsel when considering whether to detain non- citizens. The panel also stated that 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 panel rejected the government's contention, which relied on a 1999 memo from the Executive Office for Immigration Review interpreting 8 C.F.R. § 208.31, that IJs have 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, but the panel concluded that deference to EOIR's interpretation of that silence was not warranted because its interpretation conflicted with the plain text of 8 U.S.C. § 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. The panel further held that Zuniga need not show prejudice where he was denied his statutory right.

         The panel remanded for a new hearing in which Zuniga's right to counsel is honored.

          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.

         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 ...


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