Hernandez-Gil v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR HERNANDEZ-GIL, 
Petitioner, No. 04-72303
v.
 Agency No.
A79-536-600
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 20, 2006—Pasadena, California
Filed February 16, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Gould
1925
1928 HERNANDEZ-GIL v. GONZALES
COUNSEL
Carlos A. Singer, Quinn Emanuel Urquhart Oliver & Hedges,
LLP, Los Angeles, California, for petitioner Edgar
Hernandez-Gil.
Peter D. Keisler, Assistant Attorney General, Civil Division;
Anthony W. Norwood, Senior Litigation Counsel; and Vir-
ginia Lum, Attorney, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent Alberto Gonzales, United States Attor-
ney General.
OPINION
GOULD, Circuit Judge:
Edgar Hernandez-Gil, a native and citizen of Mexico, peti-
tions for review of the Board of Immigration Appeals’s
(“BIA’s”) decision summarily affirming the Immigration
Judge’s (“IJ’s”) denial of his application for cancellation of
removal. Hernandez-Gil contends that the IJ erred in denying
his motion for a continuance and violated his statutory right
to counsel by proceeding with the merits hearing without his
attorney being present. We have jurisdiction pursuant to 8
U.S.C. § 1252(a)(1), and grant his petition for review.1
1
Where, as here, the BIA affirmed the IJ’s decision without opinion,
“we review the IJ’s decision, which constitutes the final agency determi-
nation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) (cit-
HERNANDEZ-GIL v. GONZALES 1929
I
Hernandez-Gil entered the United States on or about April
15, 1991. He is not married, but lives with the mother of his
two United States citizen sons. On July 31, 2001, the former
Immigration and Naturalization Service (“INS”) charged
Hernandez-Gil with removability under 8 U.S.C.
§ 1182(a)(6)(A)(I), as an alien who had not been admitted or
paroled into the United States. On October 17, 2001, he
appeared with his retained counsel, Gloria Weil-Herrera,
before the IJ and admitted to the INS’s allegations. Weil-
Herrera advised the IJ that Hernandez-Gil would apply for
cancellation of removal, and the IJ set a merits hearing for
that application on February 20, 2003.
Hernandez-Gil attended the February 20, 2003 merits hear-
ing, but Weil-Herrera did not appear. Mr. McGuire, an attor-
ney who worked with Weil-Herrera, dropped by the IJ’s
courtroom and indicated to the IJ that Weil-Herrera “was sup-
posedly in another courtroom.” The IJ asked Hernandez-Gil
if he had met with Weil-Herrera in the last year and a half, in
preparation for the merits hearing. Hernandez-Gil said that he
had not. The IJ asked why, and Hernandez-Gil said that Weil-
Herrera “didn’t give [him] an appointment,” and he had not
contacted Weil-Herrera for an appointment. The IJ then told
Hernandez-Gil that the cancellation of removal proceedings
would continue.
The IJ explained to Hernandez-Gil the requirements for
cancellation of removal for non-permanent residents. When
ing Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005)); see also
8 C.F.R. § 1003.1(e)(4)(ii). We review questions of law, including
whether the IJ violated Hernandez-Gil’s statutory right to counsel, de
novo. See Colindres-Aguilar v. INS, 819 F.2d 259, 261 (9th Cir. 1987); see
also De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004); Simeonov
v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004); Kankamalage v. INS, 335
F.3d 858, 861 (9th Cir. 2003).
1930 HERNANDEZ-GIL v. GONZALES
asked if he was prepared to “go forward at this time,”
Hernandez-Gil responded, “No.” The IJ then asked
Hernandez-Gil if he “would like a continuance to get with an
attorney,” to which Hernandez-Gil said, “Yes.” The IJ, how-
ever, denied the application for a continuance, explaining that
because Hernandez-Gil’s “case ha[d] been on calendar since
October of the year 2001” she was “not in a position . . . to
grant [Hernandez-Gil] a continuance.”2
After explaining the procedure for the hearing, instructing
Hernandez-Gil to “feel free to ask” any questions, and taking
Hernandez-Gil’s testimony, the IJ determined that Hernandez-
Gil had established ten years of continuous physical presence
and had good moral character. The IJ, however, denied can-
cellation of removal and granted voluntary departure, con-
cluding that Hernandez-Gil had not established that either of
his two United States citizen sons would experience extreme
or unusual hardship upon his removal to Mexico.
Hernandez-Gil appealed the IJ’s decision to the BIA, argu-
ing that the IJ wrongly determined that he did not establish
the requisite hardship and that the IJ abused her discretion by
refusing to continue the case. Hernandez-Gil also argued that
the non-appearance of his counsel resulted in him being inad-
equately represented, and required reversal of the IJ’s deci-
sion. The BIA summarily affirmed the IJ’s decision. This
petition for review followed.
2
The IJ further stated that Hernandez-Gil:
had a very lengthy period of time to prepare and to be ready to
go forward today. Whoever was going to represent you would
need to have been ready to go forward today. You’ve indicated
you did not meet with Ms. [Weil-]Herrera, nor did you meet with
Mr. McGuire, so I don’t think that they would be of any or much
help to you today . . . .
HERNANDEZ-GIL v. GONZALES 1931
II
Hernandez-Gil argues that his statutory right to counsel,
which he never waived, was violated when the IJ proceeded
to hold his merits hearing despite the absence of Hernandez-
Gil’s retained counsel and his request for a continuance in
order that he be able to appear with counsel. In light of the
circumstances of this case, it is clear that Hernandez-Gil did
not waive his statutory right to counsel.
[1] In order “for an applicant to appear pro se, there must
be a knowing and voluntary waiver of the right to counsel.”
Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004)
(italics in original) (citing Velasquez Espinosa v. INS, 404
F.2d 544, 546 (9th Cir. 1968)). For a waiver of the right to
counsel to be valid, an IJ must “(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). Failure to obtain such a waiver is a denial
of the right to counsel. Id.
[2] Here, Hernandez-Gil did not knowingly and voluntarily
waive his right to counsel. Indeed, Hernandez-Gil told the IJ
explicitly that he was not prepared to go forward, did not want
to proceed without his lawyer, and requested a continuance so
he could have his lawyer, Weil-Herrera, present at the hear-
ing. In the face of the request made by Hernandez-Gil, the IJ
was not correct to say that Hernandez-Gil was “basically rep-
resenting [him]self.” On these facts, it is clear that
Hernandez-Gil did not waive his statutory right to counsel.
III
[3] Because deportation “visits a great hardship on the indi-
vidual and deprives him of the right to stay and live and work
in this land of freedom[,] . . . [m]eticulous care must be exer-
cised lest the procedures by which [an alien] is deprived of
that liberty not meet the essential standards of fairness.” Brid-
1932 HERNANDEZ-GIL v. GONZALES
ges v. Wixon, 326 U.S. 135, 154 (1945). “One way we ensure
that the ‘standards of fairness’ are met is by guaranteeing that
aliens have the opportunity to be represented by counsel. The
high stakes of a removal proceeding and the maze of immi-
gration rules and regulations make evident the necessity of the
right to counsel.” Biwot, 403 F.3d at 1098. Though there is no
Sixth Amendment right to counsel in immigration proceed-
ings, Congress has chosen to ensure that all aliens receive a
full and fair hearing by providing a statutory right to counsel.
See 8 U.S.C. §§ 1229a(b)(4)(A)3 and 1362;4 see also Cano-
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002) (stating that
an alien is entitled to a full and fair hearing of his or her
claims and a reasonable opportunity to present evidence). We
have previously held that the statutory right to counsel at
immigration proceedings “stems from a constitutional guaran-
tee of due process.” See Ray v. Gonzales, 439 F.3d 582, 587
(9th Cir. 2006) (citing Rios-Berrios v. INS, 776 F.2d 859, 862
(9th Cir. 1985)); see generally Campos-Sanchez v. INS, 164
F.3d 448, 450 (9th Cir. 1999) (“The Fifth Amendment guar-
antees due process in deportation proceedings.”).
[4] The importance of the right to counsel, whether it is
guaranteed by the Constitution or by Congressional action,
cannot be overstated. As Justice Sutherland explained in Pow-
ell v. Alabama:
The right to be heard would be, in many cases, of lit-
tle avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and educated
3
“[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 . . . .” 8 U.S.C.
§ 1229a(b)(4)(A).
4
“In any removal proceedings before an immigration judge and in any
appeal proceedings before the Attorney General from any such removal
proceedings, the person concerned shall have the privilege of being repre-
sented (at no expense to the Government) by such counsel, authorized to
practice in such proceedings, as he shall choose.” 8 U.S.C. § 1362.
HERNANDEZ-GIL v. GONZALES 1933
layman has small and sometimes no skill in the sci-
ence of law . . . He lacks both the skill and knowl-
edge adequately to prepare his defense, even though
he have a perfect one. He requires the guiding hand
of counsel at every step in the proceedings against
him.
287 U.S. 45, 68-69 (1932); see also Gideon v. Wainwright,
372 U.S. 335, 344-45 (1963) (citing the “sound wisdom upon
which the Court’s holding in Powell v. Alabama rested” and
holding that the Sixth Amendment right to counsel applies to
the states through the Fourteenth Amendment). Though Jus-
tice Sutherland was referring to a criminal defendant’s Sixth
Amendment right to counsel in Powell, the import of his
words also speaks to the statutory right to counsel in immigra-
tion proceedings. Indeed, it is difficult to imagine a layman
more lacking in skill or more in need of the guiding hand of
counsel, than an alien who often possesses the most minimal
of educations and must frequently be heard not in the alien’s
own voice and native tongue, but rather through an inter-
preter. Accordingly, “[t]o infuse the critical right to counsel
with meaning, we have previously held that IJs must provide
aliens with reasonable time to locate counsel and permit coun-
sel to prepare for the hearing.” Biwot, 403 F.3d at 1098-99
(citing Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir.
1985)).
Here, Hernandez-Gil exercised his right to counsel and
retained Weil-Herrera. Weil-Herrera represented him at his
first removal proceeding. At Hernandez-Gil’s subsequent can-
cellation of removal hearing, the IJ acknowledged that
Hernandez-Gil had retained Weil-Herrera as his counsel and
that Weil-Herrera was absent from the proceedings. The IJ,
however, denied Hernandez-Gil’s request for a continuance to
permit Hernandez-Gil to appear with his attorney, and instead
conducted the merits hearing with no lawyer present for
Hernandez-Gil, despite the fact that Hernandez-Gil had not
waived his right to counsel.
1934 HERNANDEZ-GIL v. GONZALES
[5] When a petitioner does not waive his right to counsel,
“the IJ must inquire whether there is good cause to grant peti-
tioner more time to obtain counsel.” Biwot v. Gonzales, 403
F.3d 1094, 1100 (9th Cir. 2005). When the IJ learned that
Hernandez-Gil did not want to proceed without his counsel,
the IJ knew: (1) that Weil-Herrera was presumably in another
courtroom attending to another matter; and (2) in the preced-
ing sixteen months Weil-Herrera had not contacted
Hernandez-Gil to prepare for Hernandez-Gil’s merits hearing.
The IJ could have asked Hernandez-Gil why Hernandez-Gil
had not contacted Weil-Herrera in preparation for the merits
hearing; the IJ could have taken steps to determine where
Weil-Herrera was in the building; and the IJ could have
located and contacted Weil-Herrera to ask why she had not
appeared at the scheduled hearing time to present Hernandez-
Gil’s case with him. See Jie Lin v. Ashcroft, 377 F.3d 1014,
1020 (9th Cir. 2004) (where counsel did not appear at alien’s
removal hearing after failing to appear six previous times at
alien’s removal hearing, the IJ telephoned counsel, asked
where she was and why she was not present).
Hernandez-Gil argues that the denial of a continuance vio-
lated his statutory right to counsel. “Absent a showing of clear
abuse, we typically do not disturb an IJ’s discretionary deci-
sion not to continue a hearing.” Biwot, 403 F.3d at 1099.
However, “we cannot allow a ‘myopic insistence upon expe-
ditiousness’ to render the right to counsel ‘an empty formali-
ty.’ ” Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964)). Although the IJ asserted that an attorney would not
“be of any or much help” to Hernandez-Gil, the statutory right
to counsel exists so that an alien has a competent advocate
acting on his or her behalf at removal proceedings. We have
previously explained: “In creating a statutory right to counsel,
Congress recognized that aliens have a great deal at stake in
removal proceedings and acknowledged the importance of
representation by an attorney in those proceedings.” Baltazar-
Alcazar v. INS, 386 F.3d 940, 944 (9th Cir. 2004). By con-
ducting Hernandez-Gil’s merits hearing without Weil-
HERNANDEZ-GIL v. GONZALES 1935
Herrera, the IJ disregarded the importance to Hernandez-Gil
of having his attorney present.
[6] When an immigrant has engaged counsel and the IJ is
aware of the representation, if counsel fails to appear, the IJ
must take reasonable steps to ensure that the immigrant’s stat-
utory right to counsel is honored. Here, denying the request
for a continuance and conducting the merits hearing without
taking reasonable steps to permit counsel to participate,
denied Hernandez-Gil his statutory right to counsel. Though
it is true that Hernandez-Gil had sixteen months between his
initial removal proceeding and his cancellation of removal
hearing to meet with counsel and he did not do so, this does
not negate Hernandez-Gil’s statutory right to have counsel at
his merits hearing. When his lawyer did not show up for his
important hearing, it was reasonable for Hernandez-Gil to ask
for a continuance. By declining unreasonably to grant even a
brief continuance so that Hernandez-Gil could locate and
appear with his attorney, whom the IJ had been told was in
the building in another courtroom, the IJ denied Hernandez-
Gil’s statutory right to counsel.
IV
[7] Our holding that Hernandez-Gil was denied his statu-
tory right to counsel does not, by itself, require that petitioner
prevail. “In due process challenges, there must be a showing
of prejudice.” Colindres-Aguilar v. INS, 819 F.2d 259, 261-62
(9th Cir. 1987) (citing Mosseni Behbahani v. INS, 796 F.2d
249, 251 (9th Cir. 1986) and United States v. Nicholas-
Armenta, 763 F.2d 1089 (9th Cir. 1985)). “However, it is
unsettled whether there must be a showing of prejudice
where, as in this case, counsel has been effectively denied.”
Colindres-Aguilar, 819 F.2d at 262 (citing Rios-Berrios v.
INS, 776 F.2d 859, 863 (9th Cir. 1985)). Because we deter-
mine that Hernandez-Gil has shown that he was prejudiced by
the denial of his statutory right to counsel “we again leave
unanswered the question whether a petitioner must show prej-
1936 HERNANDEZ-GIL v. GONZALES
udice when he has been denied the right to counsel in removal
proceedings.” See Biwot, 403 F.3d at 1100; Baltazar-Alcazar,
386 F.3d at 947 (“The Ninth Circuit has yet to decide whether
prejudice is required when a petitioner has demonstrated
denial of the right to counsel in deportation proceedings.”).
[8] To establish prejudice, Hernandez-Gil must show that
the denial of his right to counsel “potentially [affected] the
outcome of the proceedings.” Baltazar-Alcazar, 386 F.3d at
947 (quoting Colmenar v. INS, 210 F.3d 967, 972 (9th Cir.
2000) (alteration in original)). Hernandez-Gil “need not
explain exactly what evidence he would have presented in
support of his application . . . .” Id. (quoting Cano-Merida v.
INS, 311 F.3d 960, 965 (9th Cir. 2002)).
The requirement for cancellation of removal that the IJ con-
cluded Hernandez-Gil did not satisfy was a showing of
extreme or unusual hardship for either of his two United
States citizen sons. Extreme hardship “has no fixed defini-
tion” but is “evaluated on a case-by-case basis.” Id. (quoting
8 C.F.R. § 1240.58(a)). As we explained in Gutierrez-
Centeno v. INS, the BIA has enumerated non-exclusive factors5
to be considered when analyzing claims of extreme hardship.
See Gutierrez-Centeno v. INS, 99 F.3d 1529, 1533 n.8 (9th
Cir. 1996). Moreover, we have warned that because “immi-
gration laws have been termed second only to the Internal
Revenue Code in complexity . . . [a] lawyer is often the only
person who could thread the labyrinth.” Baltazar-Alcazar,
386 F.3d at 948 (internal quotation marks and citation omit-
ted) (emphasis added).
5
These include (1) the age and health of the alien; (2) family ties in the
United States and abroad; (3) length of residence in the United States; (4)
economic and political conditions in the country to which the alien would
be deported; (5) financial status; (6) possibility of other means of adjust-
ment of status; (7) special assistance to the United States or the commu-
nity; (8) immigration history; and (9) position in the community. See
Gutierrez-Centeno v. INS, 99 F.3d 1529, 1533 n.8 (9th Cir. 1996).
HERNANDEZ-GIL v. GONZALES 1937
The denial of Hernandez-Gil’s statutory right to counsel
prejudiced him because had Weil-Herrera or another lawyer
representing Hernandez-Gil been present at his merits hear-
ing, it is highly likely that Hernandez-Gil would have “more
advantageously presented” his case of extreme hardship. Rios-
Berrios, F.2d at 863; see also Colindres-Aguilar, 819 F.2d at
262 (holding that a violation of an alien’s right to counsel
prejudiced him because counsel “could have better marshalled
specific facts in presenting petitioner’s case for asylum and
withholding of deportation”). In addition, Hernandez-Gil
understands little English and needed an interpreter at his
merits hearing. Nothing in the record indicates that
Hernandez-Gil, who only completed a ninth grade education
in Mexico, possesses even a basic understanding of the Amer-
ican legal system in general, and the “labyrinth” of immigra-
tion laws in particular.
A trained immigration lawyer, such as Weil-Herrera, is
more familiar than Hernandez-Gil with the standards and fac-
tors an IJ examines to determine extreme hardship. She might
have presented witnesses, testimony, and specific facts that
Hernandez-Gil did not present. For example, Weil-Herrera
might have (1) presented evidence of Hernandez-Gil’s limited
employment prospects in Mexico; (2) presented the testimony
of Hernandez-Gil’s two United States citizen children; (3)
inquired into the immigration status of the mother of
Hernandez-Gil’s children, because if the mother was a lawful
permanent resident her testimony and relationship with
Hernandez-Gil and his children would be a part of the hard-
ship determination; and (4) called the psychologist who had
examined Hernandez-Gil’s oldest son, Edgar, and submitted
a written report to the IJ to testify further about his views on
how removal of Edgar to Mexico could lead to significant
mental health problems.
[9] We have little doubt that with an attorney, Hernandez-
Gil could have better presented evidence demonstrating
extreme hardship for his sons, and he would not have had to
1938 HERNANDEZ-GIL v. GONZALES
answer the IJ’s questions “without any idea of their legal sig-
nificance.” Biwot, 403 F.3d at 1100 (holding that the IJ’s
denial of petitioner’s right to counsel was prejudicial because
“[w]ith an attorney, he would not have been forced to proceed
pro se, to present a case with no evidence, [and] to answer the
IJ’s inquiries without any idea of their legal significance”).
The absence of an attorney at Hernandez-Gil’s merits hearing
potentially affected the outcome of the proceedings. See
Baltazar-Alcazar, 386 F.3d at 948 (stating there was “little
doubt that the Baltazars, with their limited command of
English and even less experience with the American legal sys-
tem, would have benefitted from counsel”). We conclude that
the IJ’s decision to deny Hernandez-Gil his statutory right to
counsel prejudiced him.6
V
[10] Accordingly, we hold that the IJ violated Hernandez-
Gil’s statutory right to counsel and remand this case to the
BIA for further proceedings consistent with this opinion.7
PETITION FOR REVIEW GRANTED; REMANDED.
6
If Hernandez-Gil had been represented by counsel at the hearing and
if there was an adverse ruling on extreme and unusual hardship, we would
not have jurisdiction to review that discretionary decision. See Torres-
Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir. 2001) (explaining that the
court is “no longer empowered to conduct an ‘abuse of discretion’ review
of the agency’s purely discretionary determinations as to whether ‘extreme
hardship’ exists.”). However, we do have jurisdiction to conclude that
Hernandez-Gil was disadvantaged when he was forced to proceed without
the benefit of counsel.
7
Hernandez-Gil also contends that the IJ violated his due process rights
and that he received ineffective assistance of counsel. We need not and do
not reach those issues here because we grant his petition for review based
on the violation of his statutory right to counsel.