Earlier this week, the Ninth Circuit joined a deep circuit split over the question of whether, to obtain relief, an individual who is denied his or her statutory right to counsel in an immigration proceeding must show that the denial actually prejudiced them. Writing for the court in Montes-Lopez v. Holder, District Judge Raner Collins, sitting by designation, answered the question in the negative.
The case involved an El Salvador native named Mario Montes-Lopez. Mario first set foot on American soil in Eagle Pass, Texas on August 13, 2002. Shortly thereafter, the federal government apprehended him and initiated proceedings to have him removed from the U.S.
Mario hired an attorney to represent him in his immigration proceedings, as was his statutory right to do so. But, by the time his merits hearing rolled around, Mario’s counsel had been suspended from practicing law. Mario therefore asked the immigration judge to push back his hearing date to give him time to find new counsel. The immigration judge denied Mario’s request.
In reviewing the immigration judge's denial, Judge Collins pointed out that the Ninth Circuit had “never decided . . . whether prejudice is an element of a claim that counsel has been denied in an immigration proceeding.” The opinion continues,
The relevant authority in the sister circuits is split. Baltazar-Alcazar, 386 F.3d at 947 n.6 (collecting relevant out-of-circuit cases). The Second, Third, Seventh, and D.C. Circuits do not require a showing of prejudice, but the Fourth, Fifth, and Tenth Circuits do. Id.; Leslie v. Attorney Gen., 611 F.3d 171 (3d Cir. 2010). We think the reasoning of the Circuits that do not require prejudice is more persuasive and more applicable to this case than the reasoning of the Circuits that do require prejudice.
As such, the court found that the immigration judge who had denied Mario’s continuance had violated Mario’s right to counsel under 8 U.S.C. § 1362, notwithstanding the resulting prejudice or lack thereof. You can read the entire opinion here: Montes-Lopez v. Holder, No. 08-70229, 2012 U.S. App. LEXIS 19554 (9th Cir. Sept. 18, 2012).