Hernandez v. Barr (1st Cir. June 15, 2020) (Lipez, J., writing for Barron and Stahl)

Lawyers are important to the administration of justice. The Founding Fathers included the right to counsel in criminal trials in their Bill of Rights in 1791 (almost half a century before Englishmen enjoyed the right): “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In 1938, the Supreme Court held that if the accused in a federal case cannot afford counsel, he has the right to appointed counsel paid for by the government. Johnson v. Zerbst, 304 U.S. 458, 463 (1938). And in 1963, the right to appointed counsel was extended to state court cases. Gideon v. Wainwright, 372 U.S. 335 (1963).

But it doesn’t apply to removal cases in immigration court. This is because they are “deemed to be civil, not criminal, proceedings.” Paul v. INS, 521 F.2d 194, 197 (5th Cir. 1975). There is, however, a statutory right to retained (not appointed) counsel in removal proceedings:

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 represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

8 U.S.C. § 1362.

It is the law of the land that exile is sufficiently less bad than imprisonment that poor people facing it can be forced to defend themselves, often with disastrous consequences. But what happens when a detained respondent in a removal proceeding tries to retain counsel but, because of her detention, misses it by one day? The First Circuit, in Hernandez v. Barr, says the immigration court has to give her that extra day.

The IJ says Ms. Hernandez didn’t try hard enough to get counsel.

Ana Ruth Hernandez Lara entered the United States in the fall of 2013 without being admitted or paroled. She found her way to Portland, Maine, where she was arrested by immigration officers five years later. They transported her 60 miles south to Dover, New Hampshire, for detention. The removal proceedings were probably held in Boston, another 60 miles south of Dover. (The reader may be interested to note that El Salvador, the country she left, is only 191 miles long.)

Here is what happened after she was arrested:

• September 20—Ms. Hernandez was arrested.
• October 11—Ms. Hernandez appeared without counsel at her master calendar hearing. The immigration judge (“IJ”) advised her of her right to retained counsel and asked whether she wanted an opportunity to find one. She responded “that she had an attorney who was not aware of the hearing.” (Slip op. at 5.) Ms. Hernandez does not speak English and required the assistance of an interpreter at this and all subsequent hearings.
• October 18—Ms. Hernandez appeared for her second hearing, the custody and bond proceedings. She appeared at this hearing with an attorney (“Laura the Bond Attorney”), but Laura requested a week “to decide whether she would continue to represent [Ms.] Hernandez.” (Slip Op. at 4–5.)
• October 25—Ms. Hernandez appeared for her third hearing, this time without counsel. The IJ asked whether she had an attorney, and she said, “Yes, I have one.” Ms. Hernandez believed that Laura the Bond Attorney, would continue representing her. She was wrong. The IJ “confirm[ed] that [Laura’s] entry of appearance was limited to the bond hearing and that no other attorney had entered an appearance for the removal proceedings” and “informed [Ms.] Hernandez that she would have to ‘speak for herself and represent herself’ that day.” (Slip Op. at 7 (original revisions omitted).)
  The IJ then read her the allegations, asked her questions, and “found [her] removable as charged.” (Slip Op. at 7.) The IJ asked her some more questions and handed her a Form I-589, the application for relief from removal. He recessed the hearing for another eight days so she could “fill out the application completely in English.” (Slip Op. at 7.)
• October 29—Laura the Bond Attorney told Ms. Hernandez that she can no longer represent Ms. Hernandez. Ms. Hernandez started looking for new counsel.
• November 2—Ms. Hernandez appeared for her fourth hearing, again without counsel. The IJ asked whether she had counsel, and she explained that she had been trying to find new counsel since she found out that Laura the Bond Attorney would no longer represent her. “They say they cannot take my case from one day to another, so they asked me to ask the judge if they could give me another day for them to review my file to see if they can take my case.” (Slip Op. at 8.) The IJ informed her she would have to proceed without counsel and speak for herself.
  The IJ asked whether she had filled out Form I-589. Ms. Hernandez: “Well, the problem is that I can’t write in English and I can’t read it, so I couldn’t fill it out.” (Slip Op. at 9.) The IJ recessed for six more days so she could fill it out.
• November 6—Laura the Bond Attorney asked for permission to turn Ms. Hernandez’s file over to a new attorney.
• November 8—Ms. Hernandez appeared for her fifth hearing, again without counsel. She told the IJ about Laura asking for permission two days earlier to turn the file over to a new attorney, whom Ms. Hernandez “expected . . . to visit [with] at the Stafford County Jail either that day or the following day.” (Slip Op. at 9–10.) The IJ informed her that she would have to proceed without counsel and speak for herself.
  The IJ asked about Form I-589 again. Someone at the jail had helped her fill out part of it—but it was the wrong part. The IJ recessed the hearing again and gave her one last chance to get it right.
• November 9—Ms. Hernandez met with her new lawyer, who agreed to take the case.
• November 16—Ms. Hernandez appears for her sixth hearing, again without counsel. Laura the Bond Attorney still hadn’t turned over the file. Ms. Hernandez “asked the IJ for a continuance to allow her new attorney to be present.” The Government objected to a continuance “for attorney prep,” and the IJ agreed. The IJ told Ms. Hernandez she would have to proceed without counsel and speak for herself. The IJ then conducted the hearing on relief from removal and denied her request.

The Board of Immigration Appeals affirmed the IJ’s decision, and Ms. Hernandez petitioned the First Circuit for relief.

The First Circuit says she tried hard enough.

The First Circuit analyzed Ms. Hernandez’s petition for review for two elements: error and prejudice. For error, the First Circuit analyzed whether the IJ properly denied her last continuance request. There is a special standard for continuance requests based on the need to retain counsel: “absent an express waiver of the right to counsel, the IJ ‘must grant a reasonable and realistic period of time to provide a fair opportunity for a respondent to seek, speak with, and retain counsel’.” (Slip Op. at 18 (citing In re C-B-, 25 I. & N. Dec. 888, 889 (BIA 2012)).)

The Government had argued, and the IJ and BIA found, that Ms. Hernandez had had “five weeks” to find an attorney. But they measured the time period incorrectly. Rather than measuring it from the first hearing, they should have measured it from the moment she “knew that [her] retained counsel would no longer be representing [her].” (Slip Op. at 21 (citing Mendoza-Garcia v. Barr, 918 F.3d 498, 506 (6th Cir. 2019)).) Ms. Hernandez didn’t understand that Laura the Bond Attorney would not be representing her until October 29. It was only 18 days from then until her final hearing on November 16. During those 18 days, she successfully retained counsel, but that counsel failed to appear on November 16 because Laura the Bond Attorney failed to turn over the file in time. “Accordingly, we readily conclude that the IJ, by denying [the last request for more time so that her counsel could be present], failed to ‘meaningfully effectuate’ the statutory right to counsel.” (Slip Op. at 24.) I can’t help but wonder: Would the continuance have been granted if counsel had been present?

So the IJ erred. Who cares? Was it prejudicial? The court’s discussion of prejudice reminded this reader of Gideon’s Trumpet:

• “That [Ms.] Hernandez raised this argument before the BIA when she was represented, but did not do so before the IJ when proceeding pro se, highlights the difference that the assistance of a lawyer can make.” (Slip Op. at 27.)
• “Though an attorney would object to that kind of error in an oral decision, [Ms.] Hernandez understandably did not do so.” (Slip Op. at 27.)
• “Here, the BIA . . . concluded that there was ‘insufficient evidence’ in the record . . . . But the record in this case was undeveloped precisely because [Ms.] Hernandez lacked counsel.” (Slip Op. at 27–28.)
• “If [Ms.] Hernandez had been represented at her merits hearing, her attorney likely would have drawn that important connection, adduced other . . . evidence to support [Ms.] Hernandez’s testimony and . . . elicited more detailed testimony.” (Slip Op. at 28.)

In other words: of course she lost below—she’s not a lawyer, and she didn’t know how to defend herself. Therefore: prejudice and remand.

Can you fix a record broken by lack of counsel?

One last point bears emphasizing. The regulations expressly prohibit reopening removal proceedings “unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

The Fifth Circuit has repeatedly held that there are no do-overs if you could have done it right the first time. In Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993), for example, the Fifth Circuit refused to reopen removal proceedings where “All of this evidence [in favor of asylum] existed and was available at the time of the original deportation proceeding.” Ogbemudia, 988 F.2d at 600. Or, as the Fifth Circuit noted more recently: to show prejudice, an immigrant must “advance[] grounds for relief that were available at the time of the removal hearing that an attorney might have brought to the IJ’s attention.” Soto v. Holder, No. 12-60238, Slip Op. (5th Cir. Apr. 26, 2013).

In short, it is very difficult to fix a broken record in immigration court.