Eladio Gomez-Velazco v. Jefferson Sessions , 879 F.3d 989 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELADIO GOMEZ-VELAZCO, Nos. 14-71747
Petitioner, 14-73303
v. Agency No.
A205-829-885
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent. OPINION
On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted July 14, 2017
Portland, Oregon
Filed January 10, 2018
Before: Paul J. Watford and John B. Owens, Circuit
Judges, and Gloria M. Navarro,* Chief District Judge.
Opinion by Judge Watford;
Dissent by Judge Navarro
*
The Honorable Gloria M. Navarro, Chief United States District
Judge for the District of Nevada, sitting by designation.
2 GOMEZ-VELAZCO V. SESSIONS
SUMMARY**
Immigration
The panel denied Eladio Gomez-Velazco’s petitions for
review from the Department of Homeland Security’s final
administrative order of removal under 8 U.S.C. § 1228(b),
concluding that Gomez-Velazco’s due process claim, based
on his contention that he was denied the right to counsel,
failed because he made no showing of prejudice.
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
panel concluded that it had jurisdiction to review Gomez-
Velazco’s constitutional claim and assumed, without
deciding, that the officers’ conduct violated his right to
counsel.
The panel held that Gomez-Velazco was required to show
prejudice in order to prevail on his claim, rejecting his
contention that, in the context of a due process violation
based on the denial of the right to counsel, prejudice should
be conclusively presumed and automatic reversal should
follow. The panel concluded that, at least in cases like that of
Gomez-Velazco, where an individual is in administrative
removal proceedings under 8 U.S.C. § 1228(b), does not
waive the 14-day waiting period for judicial review, and is
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GOMEZ-VELAZCO V. SESSIONS 3
allowed to consult with counsel before the removal order is
executed, a showing of prejudice is required. The panel
further concluded that Gomez-Velazco failed to establish
prejudice.
Dissenting, Chief District Judge Navarro wrote that she
would grant the petition for review and vacate the final
administrative order of removal. Judge Navarro would first
make the distinct finding that Gomez-Velazco’s right to
counsel was violated, and would hold that no prejudice is
required to vacate the order, and that even if prejudice were
required, Gomez-Velazco demonstrated sufficient prejudice.
COUNSEL
Navid David Shamloo (argued), Portland, Oregon, for
Petitioner.
Leslie McKay (argued) and Blair T. O’Connor, Assistant
Directors; Juria L. Jones, Trial Attorney; Office of
Immigration Litigation, Civil Division, United States
Department of Justice Washington, D.C.; for Respondent.
4 GOMEZ-VELAZCO V. SESSIONS
OPINION
WATFORD, Circuit Judge:
Under the Immigration and Nationality Act, 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. See
8 U.S.C. § 1229a. Today, however, 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. See Jennifer Lee Koh, Removal in the
Shadows of Immigration Court, 90 S. Cal. L. Rev. 181,
183–84 (2017); Shoba Sivaprasad Wadhia, The Rise of Speed
Deportation and the Role of Discretion, 5 Colum. J. Race &
L. 1, 2–3 (2014). The proceedings are summary in nature and
conducted by front-line immigration enforcement officers
employed by DHS.
This case involves administrative removal under 8 U.S.C.
§ 1228(b). A DHS officer ordered Eladio Gomez-Velazco, a
native and citizen of Mexico, removed from the United
States. Gomez-Velazco contends that his due process rights
were violated because he did not have counsel present at the
outset of the removal process. We will assume that a
violation occurred. The question we address is whether
Gomez-Velazco must show that he was prejudiced by the
violation. We conclude that he must and that he has not done
so. We therefore deny his petitions for review.
GOMEZ-VELAZCO V. SESSIONS 5
I
Before discussing the facts of Gomez-Velazco’s case, it
will help to begin with a brief overview of how administrative
removal works. Section 1228(b) authorizes DHS to order a
limited class of non-citizens removed from the country
without affording them a hearing before an immigration
judge. To invoke § 1228(b), DHS must establish that the
individual to be removed: (1) is not a citizen of the United
States; (2) has not been lawfully admitted for permanent
residence; and (3) has been convicted of an aggravated
felony. 8 U.S.C. § 1228(b)(1), (2); 8 C.F.R. § 238.1(b)(1).
Proceedings under § 1228(b) are summary in nature because
if DHS establishes those three predicates, the individual is
conclusively presumed removable and categorically ineligible
for most forms of discretionary relief from removal. 8 U.S.C.
§ 1228(b)(5), (c); see United States v. Arrieta, 224 F.3d 1076,
1080–81 (9th Cir. 2000).
DHS commences administrative removal proceedings by
serving you with a “Notice of Intent to Issue a Final
Administrative Removal Order.” 8 C.F.R. § 238.1(b)(2).
The notice must allege each of the three predicates necessary
to trigger eligibility for administrative removal.
§ 238.1(b)(1), (b)(2)(i). 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.
§ 238.1(b)(2)(i).
Upon service of the notice, you have ten days to file a
response. § 238.1(c)(1). In the response, you can (among
6 GOMEZ-VELAZCO V. SESSIONS
other things) attempt to rebut the charges, request an
opportunity to review the government’s evidence, and request
withholding of removal. Alternatively, you can waive the
right to pursue any of these options and concede that you are
removable as charged.
If you do not file a response, or if you concede that you
are removable as charged, a DHS official known as the
deciding officer will issue a “Final Administrative Removal
Order,” which for ease of reference we will simply call a
removal order. § 238.1(d)(1). To allow an opportunity for
judicial review, the order may not be executed for 14 days
unless you waive that waiting period in writing. 8 U.S.C.
§ 1228(b)(3); 8 C.F.R. § 238.1(f)(1).
If the deciding officer issues a removal order and you fear
persecution or torture in the country to which you would be
removed, the deciding officer must refer the case to an
asylum officer to conduct a reasonable fear interview.
8 C.F.R. § 238.1(f)(3). If the asylum officer determines that
your fear of persecution or torture appears reasonable, the
case is transferred to an immigration judge for a hearing to
determine whether you are entitled to withholding of
removal. § 208.31(e). If the asylum officer determines that
you do not have a reasonable fear of persecution or torture,
you can seek review of that determination by an immigration
judge. § 208.31(g). But if the adverse reasonable fear
determination is ultimately upheld, the removal order may
then be executed.
With that background in mind, we can turn to the facts of
this case. DHS officers determined that Gomez-Velazco,
then confined in county jail, appeared to be eligible for
removal under § 1228(b). Shortly after Gomez-Velazco was
GOMEZ-VELAZCO V. SESSIONS 7
released, DHS officers took him into custody pursuant to a
warrant issued by the agency. The officers served him with
a 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, namely, second-degree
rape under Oregon law. 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 officers attempted to take a formal sworn statement
from Gomez-Velazco, but he refused to give one without his
attorney present. 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. See 8 U.S.C. § 1101(a)(15)(U).
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
8 GOMEZ-VELAZCO V. SESSIONS
validity of the removal order. We issued a stay of removal
pending our resolution of the petition, which remains in
effect.
II
Gomez-Velazco argues that the DHS officers violated his
right to counsel by pressuring him into conceding
removability without the advice of counsel, even after he told
them that he did not want to give a sworn statement until he
could speak with his attorney. We have jurisdiction to review
this constitutional claim under 8 U.S.C. § 1252(a)(2)(D). As
mentioned at the outset, we will assume without deciding that
the officers’ conduct violated Gomez-Velazco’s right to
counsel.
The question becomes whether Gomez-Velazco must
show prejudice in order to prevail. The answer to that
question requires a point of clarification as to the source of
the right at issue. The Sixth Amendment does not afford a
right to the assistance of counsel in immigration proceedings.
Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th Cir.
2007). The right to be represented by counsel at one’s own
expense is protected as an incident of the right to a fair
hearing under the Due Process Clause of the Fifth
Amendment. Biwot v. Gonzales, 403 F.3d 1094, 1098–99
(9th Cir. 2005); see also 8 U.S.C. § 1228(b)(4)(B) (“the alien
shall have the privilege of being represented (at no expense
to the government) by such counsel, authorized to practice in
such proceedings, as the alien shall choose”). 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.
GOMEZ-VELAZCO V. SESSIONS 9
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.
Hernandez-Gil, 476 F.3d at 808; Biwot, 403 F.3d at 1100.
That rule rests on the view that the results of a proceeding
should not be overturned if the outcome would have been the
same even without the violation. Gomez-Velazco contends
that the rule should be different when a due process violation
is predicated on denial of the right to counsel. In that context,
he urges, prejudice should be conclusively presumed and
automatic reversal should follow.
There is some support for the rule Gomez-Velazco
advocates. In cases involving removal proceedings before an
immigration judge, we have held that requiring an individual
to proceed with the merits hearing without the assistance of
counsel violates due process, absent a valid waiver of the
right to counsel. See, e.g., Hernandez-Gil, 476 F.3d at
806–08; Tawadrus v. Ashcroft, 364 F.3d 1099, 1103–05 (9th
Cir. 2004). And in Montes-Lopez v. Holder, 694 F.3d 1085
(9th Cir. 2012), we carved out an exception to the general
rule requiring a showing of prejudice. There we held that an
individual who is wrongly denied the assistance of counsel at
the merits hearing need not show prejudice in order to
prevail. Id. at 1090. Prejudice in that context is conclusively
presumed and automatic reversal is required.
The rule we adopted in Montes-Lopez is based in part on
the practical difficulties one would face in trying to prove that
the outcome of the merits hearing would have been different
had counsel been able to assist. Id. at 1092. In most cases it
would be next to impossible to determine what the
evidentiary record would have looked like had counsel been
10 GOMEZ-VELAZCO V. SESSIONS
present. The same practical difficulties explain why, in the
Sixth Amendment context, a showing of prejudice is not
required when the defendant is denied counsel (or wrongly
denied counsel of choice) throughout the entire criminal
proceeding. See United States v. Gonzalez-Lopez, 548 U.S.
140, 148–50 (2006). In that context, too, it would usually be
impossible to determine what different decisions counsel (or
counsel of choice) might have made, and what impact those
decisions might have had on the outcome of the proceeding.
Id. at 150–51. Given “the difficulty of assessing the effect of
the error,” id. at 149 n.4, automatic reversal is required.
Even in the Sixth Amendment context, though, not all
violations of the right to counsel are treated as structural
errors mandating automatic reversal. If the right to counsel
has been wrongly denied only at a discrete stage of the
proceeding, and an assessment of the error’s effect can
readily be made, then prejudice must be found to warrant
reversal. For example, the Supreme Court has held that
denial of counsel at the preliminary hearing stage is subject
to harmless error review rather than an automatic reversal
rule. Coleman v. Alabama, 399 U.S. 1, 10–11 (1970). And
when the government obtains evidence at certain pre-trial
stages of the case in violation of the right to counsel,
admission of that evidence at trial is also subject to harmless
error review. See, e.g., Satterwhite v. Texas, 486 U.S. 249,
258 (1988) (denial of right to counsel at court-ordered
psychiatric examination); Milton v. Wainwright, 407 U.S.
371, 372 (1972) (denial of right to counsel during post-
indictment interactions with undercover police officer);
United States v. Wade, 388 U.S. 218, 242 (1967) (denial of
right to counsel at pre-trial line-up).
GOMEZ-VELAZCO V. SESSIONS 11
In our view, the rationale supporting the automatic
reversal rule does not extend to the circumstances we
confront in this case. 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. He
lacked counsel at one discrete stage of the process—the point
of his initial interaction with DHS officers. That was, to be
sure, an important stage because he 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.
See Koh, supra, 90 S. Cal. L. Rev. at 211–13.
Nonetheless, we think the effect of counsel’s absence
during the initial interaction with DHS officers can readily be
assessed, at least in cases like this one, in which the
individual does not waive the 14-day waiting period and is
allowed to consult with counsel before the removal order is
executed. In that scenario, we are not forced to speculate
about the different decisions counsel might have made had
she been present, for counsel can act on those decisions after
issuance of the removal order and remedy any damage done
by her client’s un-counseled admissions or waivers.
Take the two most common admissions or waivers that
occur. 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 permitted
under 8 C.F.R. § 238.1(c)(1). We doubt DHS would refuse
to consider the response on the theory that the individual’s
12 GOMEZ-VELAZCO V. SESSIONS
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. And if the individual waives the right to
request withholding of removal despite fearing persecution or
torture in the country to which he would be removed, the
lawyer can still request a reasonable fear determination, since
that does not occur until after issuance of the removal order
in any event. § 238.1(f)(3).
In sum, we see no reason to conclusively presume
prejudice when an individual is denied the right to counsel
during his initial interaction with DHS officers, provided the
individual is able to consult with counsel before the removal
order is executed. In that scenario, we can determine what
the evidentiary record would have looked like had the
violation not occurred, unlike the scenario in which counsel
is precluded from participating in the merits hearing before an
immigration judge. And we can thus assess what prejudicial
effect, if any, counsel’s absence had on the outcome of the
proceedings.
Having concluded that Gomez-Velazco must show
prejudice to prevail, we turn to whether he has made that
showing here. As just noted, he might have been able to
show prejudice had he attempted to contest the facts
rendering him removable yet been foreclosed from doing so
by virtue of his earlier un-counseled admissions. But he has
never attempted to contest the charges against him, even after
having an opportunity to consult with counsel, so he cannot
contend that his un-counseled admissions cost him the chance
GOMEZ-VELAZCO V. SESSIONS 13
to raise plausible grounds for contesting removal. Nor can he
claim prejudice by virtue of his un-counseled waiver of the
right to request withholding of removal, since he was
ultimately given a reasonable fear interview and allowed to
make the case that he should be granted withholding of
removal.
Gomez-Velazco asserts only one other theory of
prejudice, which relates to the recent denial of his U-visa
application. He contends that if counsel had been present
during his initial interaction with DHS officers, his attorney
could have requested a stay of the proceedings and thereby
prevented the removal order from being issued in the first
place. He argues that he suffered prejudice because the very
issuance of the removal order negatively influenced the
agency’s consideration of his U-visa application and
contributed to the decision to deny it.
There are at least two flaws in this argument. The first is
that Gomez-Velazco provides nothing to support his assertion
that the mere issuance of a removal order negatively affects
the agency’s consideration of a U-visa application. We have
found nothing in DHS regulations or policy guidance to
suggest that is the case, and we know that issuance of a
removal order does not preclude an individual from obtaining
a U-visa. The agency’s regulations specifically contemplate
the granting of a U-visa application even after issuance of a
removal order. They provide that upon approval of the
application the removal order “will be deemed canceled by
operation of law” as of the date of approval. 8 C.F.R.
§ 214.14(c)(5)(i); see United States v. Cisneros-Rodriguez,
813 F.3d 748, 761 (9th Cir. 2015).
14 GOMEZ-VELAZCO V. SESSIONS
The second flaw in Gomez-Velazco’s argument is that the
agency’s written explanation for why it denied his U-visa
application does not rely on issuance of the removal order as
a negative factor. To be eligible for a U-visa, Gomez-
Velazco needed to obtain a waiver of inadmissibility, and to
obtain that he needed to persuade the agency that “it is in the
public or national interest” to allow him to remain in the
United States. 8 C.F.R. § 212.17(b)(1). The agency
explained that it declined to grant a waiver of inadmissibility
because his criminal record indicated that he posed a risk to
public safety. In support of that conclusion, the agency cited
Gomez-Velazco’s conviction for second-degree rape, an
especially serious offense because the victim was 13 years
old. The agency also cited his multiple violations of the
probationary conditions imposed for that conviction and his
multiple arrests for other offenses. Given this record of
criminal wrongdoing, the agency could not conclude that a
favorable exercise of its discretion was warranted. That
outcome is not surprising, as the agency’s regulations provide
that it will grant a waiver of inadmissibility to applicants
convicted of violent or dangerous crimes only in
“extraordinary circumstances.” § 212.17(b)(2). Nothing in
the agency’s decision turned on the fact that a removal order
had been issued.
* * *
In the circumstances of this case, Gomez-Velazco was
required to show prejudice in order to prevail on his due
process claim. Although he may have been improperly
denied the right to counsel during his initial interaction with
GOMEZ-VELAZCO V. SESSIONS 15
DHS officers, he has made no showing that the denial of that
right caused him any prejudice.
PETITIONS FOR REVIEW DENIED.
NAVARRO, Chief District Judge, dissenting:
I would grant the Petition for Review and vacate the Final
Administrative Removal Order (“FARO”) issued on June 12,
2014.
I would first make the distinct finding—as opposed to the
majority’s assumption—that Gomez-Velazco’s right to
counsel was violated. “Although there is no Sixth
Amendment right to counsel in an immigration hearing,
Congress has recognized it among the rights stemming from
the Fifth Amendment guarantee 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)
(citing Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir.
1985)). While “[t]he right to counsel in immigration
proceedings is rooted in the Due Process Clause,” Biwot v.
Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005), the right to
counsel in expedited removal proceedings is also secured by
statute. 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien shall have the
privilege of being represented (at no expense to the
government) by such counsel, authorized to practice in such
proceedings, as the alien shall choose.”); 8 C.F.R.
§ 238.1(b)(2)(i) (“[The Notice of Intent] shall advise that the
alien: has the privilege of being represented, at no expense to
the government, by counsel of the alien’s choosing, as long
as counsel is authorized to practice in removal proceedings”);
16 GOMEZ-VELAZCO V. SESSIONS
see also 8 C.F.R. § 238.1(b)(2)(iv) (requiring ICE to provide
aliens facing expedited removal “with a list of available free
legal services programs”).
Moreover, expedited removal proceedings under § 1228
require “conformity with section 1229a” and the “privilege of
being represented” is further codified in that section as well.
See 8 U.S.C. § 1229a(b)(4)(A). This right to be represented
at no cost to the government is also listed on the “Notice of
Intent to Issue a FARO” under “Your Rights and
Responsibilities.” If the right to counsel under § 1228 is only
for the noncitizen to be advised of the right to have counsel,
with no practical effect, then it would be no right to counsel
at all. See Rios-Berrios, 776 F.2d at 863 (explaining that the
right to counsel must be respected in substance as well as in
name).
Indeed, this Circuit has consistently emphasized the
critical role of counsel in deportation proceedings. See, e.g.,
Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988)
(“The importance of counsel . . . can neither be
overemphasized nor ignored.”); United States v. Cerda-Pena,
799 F.2d 1374, 1377 n.3 (9th Cir. 1986) (referring to “an
outright refusal to allow an alien the opportunity to obtain
representation” as “an egregious violation of due process”).
We have characterized the alien’s right to counsel of choice
as “fundamental” and have warned the agency not to treat it
casually. Rios-Berrios, 776 F.2d at 863–64.
Here, the record clearly demonstrates that Gomez-
Velazco asserted that he had counsel and wanted his counsel
present. First, in Form I-213, ICE Officer Stewart explains
that during the FARO proceedings, Gomez-Velazco “was
unwilling to provide a sworn statement without an attorney
GOMEZ-VELAZCO V. SESSIONS 17
present.” Second, on the “Record of Sworn Statement” dated
June 12, 2014, the first question states, “Are you willing to
answer my questions?” to which Gomez-Velazco answered:
“I prefer not to until I talk to my attorney.” DHS nevertheless
proceeded with the expedited removal proceedings without
first affording Gomez-Velazco the opportunity to notify and
speak with his counsel as he requested. In doing so, DHS
directly disregarded Gomez-Velazco’s ability to exercise this
fundamental right.
Having found that Gomez-Velazco’s right to counsel was
violated, I would then find that under Montes-Lopez v.
Holder, 694 F.3d 1085 (9th Cir. 2012), no prejudice is
required to vacate the FARO. The Montes-Lopez court held
“an alien who shows that he has been denied the statutory
right to be represented by counsel in an immigration
proceeding need not also show that he was prejudiced by the
absence of the attorney.” 694 F.3d at 1093–94. In support,
the court stated that “the absence of counsel can change an
alien’s strategic decisions, prevent him or her from making
potentially-meritorious legal arguments, and limit the
evidence the alien is able to include in the record.” Id. at
1092.
The majority here distinguishes Montes-Lopez by a
distinction without a difference. First, the majority regards
Montes-Lopez as “an exception to the general rule requiring
a showing of prejudice;” however, prior to Montes-Lopez,
there was no general rule that required a showing of
prejudice—a fact that Montes-Lopez, Hernandez-Gil, and
Biwot, the cases the majority relies so heavily on, all
specifically identify. Id. at 1090 (“We have never decided,
however, whether prejudice is an element of a claim that
counsel has been denied in an immigration proceeding.”);
18 GOMEZ-VELAZCO V. SESSIONS
Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir.
2007) (“Because we determine 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 prejudice when he has been denied the
right to counsel in removal proceedings.’”) (citing Biwot,
403 F.3d at 1100).
Second, the right to counsel is substantively the same
under both the § 1228 expedited removal proceeding before
a DHS deciding officer, as used here, and the § 1229
proceeding before the immigration judge, as in Montes-
Lopez.1 Compare § 1228(b)(4)(B) with § 1229(b)(1); see also
United States v. Peralta-Sanchez, 847 F.3d 1124, 1130 (9th
Cir. 2017) (emphasizing the similarity of §§ 1228 and 1229
in the right to counsel context). Montes-Lopez’s holding
refers to “an immigration proceeding” without differentiating
between a proceeding before an immigration judge and a
DHS deciding officer. Montes-Lopez, 694 F.3d at 1093–94.
Notably, the Montes-Lopez court purposefully
distinguished pure immigration proceedings from collateral
attacks on a removal order in a § 1326 illegal reentry criminal
case, the latter of which requires prejudice specifically
because of “the limitations on criminal defendants’ right to
collaterally attack the result of a prior proceeding.” Montes-
Lopez, 694 F.3d at 1093; see also Villa-Anguiano v. Holder,
727 F.3d 873, 876 n.1 (9th Cir. 2013) (contrasting the § 1326
illegal reentry collateral attack standard under Reyes-Bonilla
with the immigration proceedings petition for review standard
1
The Government decides under which process to pursue deportation
by issuing either a Notice of Intent to Issue a FARO under § 1228 or
Notice to Appear under § 1229.
GOMEZ-VELAZCO V. SESSIONS 19
under Montes-Lopez). The Montes-Lopez court compared the
collateral attack versus petition for review in the immigration
context to the difference between a criminal collateral attack
and a direct appeal: “A criminal defendant who alleges
ineffective assistance of counsel must generally show
prejudice, Smith v. Mahoney, 611 F.3d 978, 1001 (9th Cir.
2010), but a defendant who has been denied counsel need not.
Campbell v. Rice, 408 F.3d 1166, 1176 (9th Cir. 2005).”
694 F.3d at 1092.
Deprivation of counsel is per se prejudicial. See Cerda-
Pena, 799 F.2d at 1377 n.3 (“[A]n outright refusal to allow an
alien the opportunity to obtain representation may be such an
egregious violation of due process so as not to require any
further showing of prejudice”); Garcia-Guzman v. Reno,
65 F. Supp. 2d 1077, 1087 (N.D. Cal. 1999) (explaining that
“Cerda-Pena therefore suggests that if the violation of the
right to counsel is sufficiently egregious—i.e., a clear denial
of representation or outright refusal to permit an alien to
obtain representation—prejudice needn’t be shown.”).
The majority attempts to downplay the inherent prejudice
of this situation by comparing it to discrete stages of a
criminal proceeding, such as a preliminary hearing, a court-
ordered psychiatric examination, post-indictment interactions
with undercover police officers, and pre-trial line-ups.
However, none of these situations are comparable to the
instant case. Here, Gomez-Velazco was in custody by DHS
when he asked for an attorney—a situation that, in a non-
immigration case, would normally mandate an attorney as
soon as a defendant requests one.
Furthermore, in drawing comparisons to these Sixth
Amendment situations, the majority attempts to illustrate how
20 GOMEZ-VELAZCO V. SESSIONS
the standard in those cases are only “subject to harmless error
review rather than an automatic reversal rule,” and the
majority concludes that because this is a similar discrete
stage, prejudice is required rather than presumed. However,
in arguing this, the majority once again completely disregards
Montes-Lopez. There, the court held that “[w]hen this court
concludes that an agency has not correctly applied controlling
law, it must typically remand, even if we think the error
was likely harmless.” Montes-Lopez, 694 F.3d at 1092
(citing INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002)).
Importantly, Montes-Lopez adopts the reasoning of the
Second Circuit, which “declined to add a prejudice
requirement to this rule because [the court] reasoned that
automatic reversal upon violation of such a regulation would
encourage agency compliance with its own rules and serve
the interests of judicial economy.” Id. at 1091 (citing Montilla
v. INS, 926 F.2d 162, 169 (2d Cir. 1991)). We must
recognize that in mandating automatic reversal, not only will
we continue to protect this right to counsel, but also we will
better hold these agencies accountable in their actions and
conduct by enforcing their own regulations more strictly upon
them. In holding that this situation is akin to a harmless error
review, the majority disregards Montes-Lopez’s holding and
downplays the right to counsel.
The majority attempts to distinguish Montes-Lopez by
stating that it is different than the instant case because it is
“based in part on the practical difficulties one would face in
trying to prove that the outcome of the merits hearing would
have been different had counsel been able to assist.” The
majority reasons that Montes-Lopez differs because “Gomez-
Velazco was not denied the assistance of counsel throughout
the entirety of the administrative removal process” but that he
“lacked counsel at one discrete stage of the process.”
GOMEZ-VELAZCO V. SESSIONS 21
To carve out such a nuanced distinction undermines the
fundamental nature of the right to counsel. See, e.g.,
Hernandez-Gil, 476 F.3d at 806 (“The high stakes of a
removal proceeding and the maze of immigration rules and
regulations make evident the necessity of the right to
counsel.”); Montes-Lopez, 694 F.3d at 1091 (“No showing of
prejudice is required, however, when a rule is ‘intended
primarily to confer important procedural benefits upon
indiv[i]duals’’ or ‘when alleged regulatory violations
implicate fundamental statutory or constitutional rights.’”)
(quoting Leslie v. Attorney Gen., 611 F.3d 171 (3d
Cir.2010)). Likewise, to permit an agency to continue to
ignore its own regulations undermines the fundamental nature
of the right to counsel. Finally, to ignore established
precedent in favor of the majority’s new exception
undermines the fundamental nature of the right to counsel.
Accordingly, I would vacate the FARO because Gomez-
Velazco established a right to counsel due process violation
and therefore need not show prejudice.
Even if prejudice were required, however, it should be
assessed under the “plausibility” standard set forth by United
States v. Cisneros-Rodriguez, 813 F.3d 748, 760 (9th Cir.
2015): “[W]hether the defendant had identified a form of
relief it was plausible he would have obtained absent the due
process violation.” In Cisneros-Rodriguez, the defendant
argued that “had she obtained counsel [during her predicate
§ 1228 proceeding], it is plausible that she would have
applied for and obtained a U-visa.” Id. at 753. The court
agreed that because she demonstrated prima facie U-Visa
eligibility, it was plausible that she would have obtained a U-
Visa had she applied for one at the time of her original § 1228
proceeding. Id. at 761. This finding was made despite the
22 GOMEZ-VELAZCO V. SESSIONS
fact that the defendant later applied for a U-Visa and was
rejected. Id. at 762.
Here, the record demonstrates that Officer Stewart—the
arresting ICE officer who provided the evidence to Deciding
Officer Elizabeth C. Godfrey for the issuance of the
FARO—knew that Gomez-Velazco was represented by
counsel and that Gomez-Velazco had a pending U-Visa
application. When Officer Stewart nevertheless chose to
arrest Gomez-Velazco and continue with the § 1228
proceeding without allowing him to consult with his attorney,
Gomez-Velazco was prejudiced more than the defendant in
Cisneros-Rodriguez because he had a plausible and pending
U-Visa application. As such, I cannot agree with the majority
that Gomez-Velazco failed to demonstrate sufficient
prejudice under Cisneros-Rodriguez.
Ultimately, even without a finding of prejudice, the
majority’s decision to deny Gomez-Velazco’s petition for
review dilutes the fundamental right to counsel and
completely ignores indistinguishable precedent. See
Hernandez v. Holder, 545 Fed. Appx. 710, 713 (9th Cir.
2013) (Ikuta, J., concurring) (unpublished opinion) (stating
disagreement with Montes-Lopez while still acknowledging
that the Ninth Circuit is bound by its decision). Accordingly,
I must respectfully dissent.