Petition to Review an Order of the Board of Immigration Appeals BIA No. A095-487-944
The opinion of the court was delivered by: Collins, District Judge:
Argued and Submitted July 18, 2012-San Francisco, California
Before: Richard R. Clifton, and Mary H. Murguia, Circuit Judges, and Raner C. Collins,*fn1 District Judge.
Petitioner Mario Montes-Lopez, a native and citizen of El Salvador, petitions for review of an order of removal. Petitioner's attorney failed to appear at a scheduled merits hearing before an Immigration Judge ("IJ") because his license to practice law had been temporarily suspended. The Immigration Judge found that Petitioner may have learned of his attorney's suspension as much as eleven days before the hearing, and concluded that Petitioner was not diligent in bringing his attorney's suspension to the attention of the court. He denied Petitioner's motion to continue, proceeded with the hearing with Petitioner unrepresented by counsel, and denied Petition-er's application for asylum.
We conclude that the Petitioner's right to be represented in the proceedings by retained counsel, established under 8 U.S.C. § 1362 and related regulations, was violated. We also conclude that a petitioner so denied his right to counsel in an immigration proceeding is not required to demonstrate actual prejudice in order to obtain relief. We therefore grant the petition and remand for further proceedings.
Petitioner Mario Montes-Lopez, a native and citizen of El Salvador, entered the United States at Eagle Pass, Texas, on August 13, 2002. The Department of Homeland Security apprehended and detained Petitioner and initiated removal proceedings against him. On December 10, 2002, Petitioner appeared before the immigration court in San Antonio, Texas, and was granted a continuance in order to obtain counsel. Thereafter, attorney Gloria Lopez appeared on behalf of Petitioner and filed a motion to transfer the case to San Francisco, California. Ms. Lopez subsequently withdrew as counsel.
On April 10, 2003, Petitioner appeared in San Francisco before IJ Phan Quang Tue. Frank Sprouls, a pro bono attorney, appeared on Petitioner's behalf and indicated that the Immigration Law Clinic in Davis, California had agreed to represent Petitioner and requested a second continuance. The IJ granted the continuance, but warned Petitioner that this would be his last continuance. Thereafter, Petitioner hired attorney Otto Pena, and timely filed his application for asylum.
On May 12, 2004, Petitioner appeared before the IJ for his merits hearing. Mr. Pena was not present. Petitioner presented the IJ with a letter from Mr. Pena dated May 1, 2004, which stated:
the [sic] above mentioned person is scheduled for an individual hearing on May 12, 2004 at pm [sic]. Unfortunately, I am not able to represent him because I have been suspended from the bar until August 2004. I respectfully ask the court to continue this matter until September to allow me to continue representing him or so that he may obtain new counsel.
The IJ then questioned Petitioner about his contact with Mr. Pena:
Q: When did you last talk to Mr. Pena?
Q: And did you talk to him in person?
Q: Okay, and that was after you received this letter?
Q: The letter was dated May 1st, 2004. Why did you wait until today to give it to me?
A: Because I received it just yesterday.
Q: But you just told me that you talked to Mr. P[e]na ...