Right to Counsel in Administrative Removal – Gomez v. Sessions (9th Circuit)

Eladio Gomez – Velazco,

Petitioner

v. 

Jeff Sessions, 

Respondent

Nos. 14-71747, 14-73303

A205-829-885

Issues in this Case:

Does an alien (a non citizen) have the right to counsel in administrative removal immigration proceedings?

Yes. But the right is limited. The alien must pay for counsel and they have no right to appointment counsel in immigration proceedings. If the right to counsel is denied in administrative removal proceedings, the alien must show that they were harmed.

(This opinion is out of the Ninth Circuit. Other jurisdictions may have a different holding)

Procedural History:

Gomez-Velasco complained that his right to due process was violated where he was denied access to counsel after being served notice of administrative removal under 8 U.S.C. § 1228(b).

Gomez-Velasco’s appeal came to the 9th Circuit on a petitioner for review from the Department of Homeland Security’s final administrative order of removal under 8 U.S.C. § 1228.

The question before the Court of Appeals was whether reversal required Gomez-Velasco to demonstrate prejudice on account of the due process violation or whether prejudice should be conclusively presumed.

Holding:

The Ninth Circuit Court of Appeals held that an alien who is deprived of their right to counsel in administrative removal proceedings, at least during the initial interaction with the Department of Homeland Security, must show that they were prejudiced by the denial of counsel for a reviewing court to reverse an order of removal.

What Happened

Gomez-Velasco, a native and citizen of Mexico, was held in county jail. Shortly after his release from jail, he was detained on a Department of Homeland Security (DHS) warrant. DHS served him with Notice of Intent to Issue a Final Administrative Removal Order. The notice alleged that Gomez-Velazco is not a citizen of the United States; that he has not been lawfully admitted for permanent residence; and that he has been convicted of an aggravated felony. The notice advised Gomez-Velazco of his right to contest the charges and his right to be represented by counsel of his choosing at no expense to the government.

The DHS officers knew Gomez-Velazco had retained an attorney because two months earlier the attorney had notified them of Gomez-Velazco’s pending application for a U-visa. Although Gomez-Velazco refused to provide a sworn statement, he nonetheless admitted the allegations in the notice and conceded that he was removable as charged. He did not claim fear of persecution or torture in Mexico, but he declined to waive the 14-day waiting period for execution of the removal order. He made each of these decisions without the benefit of counsel’s advice because his attorney was not present.

Immediately after Gomez-Velazco conceded that he was removable as charged, and before he had a chance to consult with his attorney, the deciding officer issued a removal order under § 1228(b). Because Gomez-Velazco had not waived the 14-day waiting period, he was not removed from the country, and before the waiting period expired his attorney filed a petition for review in this court challenging the validity of the order.

Gomez-Velazco argued that DHS officers violated his right to counsel by pressuring him to concede removability without advice of counsel in his proceedings under 8 U.S.C. § 1228(b), a form of summary removal proceedings in which he did not have a hearing before an immigration judge.

The Ninth Circuit Court of Appeals assumed that there was a due process violation, then addressed the question of whether prejudice was presumed or if Gomez-Velasco was required to show prejudice on account of the violation.

Opinion

The Department of Homeland Security (DHS) can seek to remove non-citizens from the United States through several different means. The most formal process involves a hearing in immigration court before an immigration judge, at which the individual to be removed can contest the charges against him and request various forms of relief from removal. Most non-citizens are ordered removed through streamlined proceedings— expedited removal, administrative removal, and reinstatement of removal—that do not involve a hearing before an immigration judge. The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS.

DHS commences administrative removal proceedings by serving the alien with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice must allege each of the three predicates necessary to trigger eligibility for administrative removal. The notice must also advise you of certain rights, among them the right to be represented by counsel of your choosing at no expense to the government, the right to rebut the charges against you, and the right to request withholding of removal if you fear persecution or torture in the country to which you would be removed.

Upon receipt of the notice, the alien has ten days to file a response. In the response the alien may attempt to debuted the charges, request an opportunity to review the evidence, and request withholding of removal. Alternatively, the alien may also waive the right to pursue the options and concede removability.

If the deciding officer orders removal, the order may not be executed for 14 days unless that period is waived in writing. The 14 day period is to allow for judicial review of the administrative removal order.

The right to counsel at one’s own expense is not provided by the Sixth Amendment. It is the Due Process Clause of the Fifth Amendment, and the Immigration and Nationality Act, that is the source of this right. Biwot v. Gonzales, 403 F.3d 1094, 1098–99 (9th Cir. 2005); see also 8 U.S.C. § 1228(b)(4)(B). Thus, an individual who asserts that he was denied the right to counsel in immigration proceedings is asserting that his right to due process was violated.

As a general rule, an individual may obtain relief for a due process violation only if he shows that the violation caused him prejudice, meaning the violation potentially affected the outcome of the immigration proceeding.

The Ninth Circuit found that Gomez-Velazco was not denied the assistance of counsel throughout the entirety of the administrative removal process, which commences with service of the Notice of Intent to Issue a Final Administrative Removal Order and ends with execution of the order. Instead, he lacked counsel at one discrete stage of the process—the point of his initial interaction with DHS officers. The Court noted that this is an important stage because Gomez-Velazco had to decide whether to contest the charges against him and whether to request withholding of removal, decisions that turn on potentially complicated factual and legal issues which virtually all lay people need the assistance of counsel to analyze intelligently.

The Ninth Circuit found no reason to presume prejudice for the denial of counsel at the point of the initial interaction with DHS officers. The Court reasoned that if the individual admits the allegations in the notice and concedes removability, as Gomez-Velazco did here, the lawyer can still file a response asserting any valid grounds for contesting removability within the ten-day period. The Court’s opinion stated that it doubted that DHS would refuse to consider the response on the theory that the individual’s earlier un-counseled concession of removability is somehow irrevocable. But even if the agency took that dubious position, a reviewing court would be able to assess whether the grounds asserted raise a plausible basis for contesting removability, and thus could determine whether counsel’s absence during the initial interaction with DHS officers caused prejudice.

The full text of the opinion is available here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

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