Zuniga v. Barr

946 F.3d 464

Baldemar ZUNIGA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 16-72982

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2019, Seattle, Washington

Filed August 20, 2019

Amended December 26, 2019

ORDER

The opinion filed August 20, 2019, reported at 934 F.3d 1083, is hereby amended. The amended opinion is filed concurrently with this order.

With this amendment, the panel has unanimously voted to deny Respondent’s petition for panel rehearing. The petition for panel rehearing is DENIED. Further petitions for rehearing or rehearing en banc may be filed.

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 co-conspirators, who were part of Mexico’s notorious Knights Templar cartel.

While he was in prison, immigration authorities served Zuniga with a Notice of Intent to Issue a Final Administrative Removal Order. Because he had been convicted of a drug trafficking aggravated felony, Zuniga was placed in expedited removal proceedings pursuant to 8 U.S.C. § 1228(b). During an interview with Immigration and Customs Enforcement ("ICE"), he expressed a fear that, if removed to Mexico, he would face torture or persecution by the cartel as retribution for his testimony. He was then referred to an asylum officer for an interview to evaluate whether his fear was "reasonable."

At the beginning of the reasonable fear interview, the asylum officer explained that Zuniga had "the right to have [his] attorney present for the interview." Zuniga stated that he had an attorney helping with his reasonable fear case but that he was willing to continue with the reasonable fear interview without his attorney.¹ The asylum officer then proceeded with the interview questions and concluded that Zuniga had not established a reasonable fear of persecution or torture.

Zuniga requested review of the asylum officer’s negative reasonable fear determination by an Immigration Judge. Zuniga’s case was referred to the Immigration Court in San Francisco, California. The notice of referral to the IJ included the following language: "You may be represented in this proceeding, at no expense to the government, by an attorney or other individual authorized and qualified to represent persons before an Immigration Court. If you wish to be so represented, your attorney or representative should appear with you at this hearing."

Zuniga appeared at the hearing by video conference from a detention center in Mesa Verde, California.² At the outset of the hearing, when announcing the case number and who was participating, the IJ stated that Zuniga did "not have a lawyer." Shortly thereafter, the IJ engaged in the following colloquy with Zuniga:

JUDGE: In these proceedings you have the right to counsel of your own choosing, but the government will not pay for your attorney. You should have received a copy of the free legal service list. Did you get that list?

ZUNIGA: Yes.

JUDGE: So, sir, do you have a lawyer?

ZUNIGA: I do not.

JUDGE: All right, sir, were you interviewed by an asylum officer regarding your fear of returning to Mexico?

The IJ then proceeded with the substance of the hearing. The IJ ultimately agreed with the asylum officer that Zuniga lacked "a reasonable fear of persecution on account of a ground protected by the law[s] of the United States."

Zuniga petitioned our court for review of that decision, arguing that his due process rights were violated by the use of the video conference in his reasonable fear review hearing before the IJ and by the IJ’s failure to obtain a proper waiver of his right to an attorney in that proceeding. He also argued that the IJ erred in determining that he lacked a reasonable fear of persecution on a protected ground and in evaluating his fear of torture.

II.

We review de novo due process challenges to reasonable fear proceedings. Colmenar v. I.N.S. , 210 F.3d 967, 971 (9th Cir. 2000).

III.

A.

In 1999, the Department of Justice created the reasonable fear interview to serve as a "screening process to evaluate torture claims for aliens subject to streamlined administrative removal processes for aggravated felons ... and for aliens subject to reinstatement of a previous removal order." Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999). These two groups of non-citizens are ineligible for asylum but may be entitled to withholding or deferral of removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"), currently codified at 8 U.S.C. § 1231(b)(3), or under the Convention Against Torture.³ Regulations Concerning the Convention Against Torture, 64 Fed. Reg. at 8485.

As a first step of the reasonable fear process, non-citizens who express a fear of returning to their country of removal to ICE are interviewed in a "non-adversarial manner" by an asylum officer to determine whether they have a reasonable fear of persecution or torture. 8 C.F.R. §§ 208.31(a), (c), 1208.31(a), (c).⁴ If the asylum officer determines that a non-citizen has a reasonable fear, he will be referred to an IJ for a merits hearing to determine eligibility for withholding of removal. Id. § 208.31(e). However, if the asylum officer determines that the non-citizen "does not have a reasonable fear of persecution or torture," he "will be afforded the opportunity for an expeditious review of the negative screening determination by an immigration judge." Regulations Concerning the Convention Against Torture, 64 Fed. Reg. at 8485 (emphasis added); see also 8 C.F.R. § 208.31(f) – (g). If a non-citizen exercises his right to challenge a negative reasonable fear determination, the IJ reviews the asylum officer’s determination de novo. 8 C.F.R. § 208.31(f) – (g) ; Bartolome v. Sessions , 904 F.3d 803, 809 (9th Cir. 2018).

If the IJ upholds the negative screening determination, it constitutes a final order of removal.

8 C.F.R. § 208.31(g)(1). Because the IJ’s decision is the final agency action on the reasonable fear question, such a final removal order is ripe for judicial review by a federal court of appeals. Ayala v. Sessions , 855 F.3d 1012, 1015–16 (9th Cir. 2017).

B.

Zuniga argues that he had a right to counsel in his reasonable fear review hearing before the IJ, that he did not waive that right because his colloquy with the IJ was insufficient to demonstrate that he made a knowing and voluntary waiver, and that this error requires automatic reversal. The Government does not contest that, if Zuniga had a right to counsel, there was no adequate waiver here.⁵ Rather, the Government rests its defense to this petition primarily on the argument that there is no statutory right to counsel in reasonable fear proceedings. This argument clearly fails.

Expedited removal proceedings for non-citizens convicted of committing aggravated felonies are a creation of INA § 242A(b), later redesignated as INA § 238(b) and currently codified at 8 U.S.C. § 1228(b). Reasonable fear proceedings are in turn part of those expedited removal proceedings. Although the legal provisions requiring the government to conduct reasonable fear proceedings as part of expedited removal proceedings are set forth in regulations, not in § 1228 itself, those regulations were promulgated pursuant to the Attorney General’s authority under § 1228. See 8 C.F.R. § 238.1(f)(3) (mandating that an immigration "officer shall, upon issuance of a Final Administrative Removal Order [pursuant to § 1228(b) ], immediately refer the alien’s case to an asylum officer to conduct a reasonable fear determination in accordance with [ 8 C.F.R.] § 208.31"); Regulations Concerning the Convention Against Torture, 64 Fed. Reg. at 8494 (citing § 1228 as the source of authority for 8 C.F.R. § 238.1 ).

Section 1228 explicitly provides that non-citizens "shall have the privilege of being represented (at no expense to the government) by [ ] counsel." 8 U.S.C. § 1228(b)(4)(B). Other subsections of § 1228 reinforce the right to counsel. The statute provides, for example, that the "proceedings [for removal of criminal non-citizens] shall be conducted in conformity with section 1229a," 8 U.S.C. § 1228(a)(1), which provides a statutory right to counsel in ordinary removal proceedings, 8 U.S.C. § 1229a(b)(4)(A).⁶ Section 1228 also states that in deciding where to detain non-citizens under this section, "the Attorney General shall make reasonable efforts to ensure that the alien’s access to counsel and right to counsel under [ 8 U.S.C.] section 1362," which likewise provides for the right to counsel in removal proceedings, "are not impaired." 8 U.S.C. § 1228(a)(2).

This language makes clear that the statute contemplates a right to counsel in removal proceedings initiated under 8 U.S.C. § 1228, which include reasonable fear review proceedings.⁷ Nothing in the language of § 1228 indicates that the right to counsel is conditional or limited only to certain types of proceedings initiated under that statute, expedited or otherwise. Cf. United States v. Reyes-Bonilla...