                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAR 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RAUL PABLO, AKA Mario Pablo Calmo,              No.    17-72107
                                                       17-73485
                Petitioner,
                                                Agency No. A205-023-841
 v.

WILLIAM P. BARR, Attorney General,              MEMORANDUM*

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 4, 2020
                            San Francisco, California

Before: SILER,** WARDLAW, and M. SMITH, Circuit Judges.

      Raul Pablo Calmo, a native and citizen of Guatemala, petitions for review of

the order of the Board of Immigration Appeals (BIA) affirming the Immigration

Judge (IJ)’s denial of his applications for asylum, withholding of removal, and

Convention Against Torture relief. He separately petitions for review of the BIA’s



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We

grant the first petition because the IJ failed to ascertain whether Pablo was aware

of the availability of pro bono legal services in violation of applicable regulations,

and the BIA further erred by overlooking this violation.

      Respondents in removal proceedings have a statutory right to counsel. 8

U.S.C. § 1362. In furtherance of this statutory right, regulations require the IJ to

“advise the respondent of the availability of pro bono legal services . . . and

ascertain that the respondent has received a list of such pro bono legal service

providers.” 8 C.F.R. § 1240.10(a)(2); 8 C.F.R. § 1003.61(b) (The “List of Pro

Bono Legal Service Providers . . . shall be provided to individuals in removal and

other proceedings before an immigration court.”). Where the IJ fails to adhere to

these requirements, the petitioner is entitled to a new removal hearing without any

separate showing of prejudice. See Montes-Lopez v. Holder, 694 F.3d 1085, 1093

(9th Cir. 2012); see also Zuniga v. Barr, 946 F.3d 464, 471 n.10 (9th Cir. 2019).

      Although Pablo was previously represented by counsel, he was

unrepresented at his final hearing, the critical stage of proceedings when the

substance of his case was at issue. Yet the IJ never advised Pablo of the

availability of free legal services nor verified that Pablo had received the List of

Pro Bono Legal Services Providers. This failure was stark in light of Pablo’s clear

statement to the IJ that he was proceeding on his own only because he could not


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afford an attorney. In these circumstances, the IJ’s failure to advise Pablo of the

availability of free legal services effectively denied him the statutory right to

counsel. Cf. Picca v. Mukasey, 512 F.3d 75, 78–79 (2d Cir. 2008) (remanding case

where the IJ failed to advise an indigent petitioner of the availability of free legal

services after his attorney withdrew). Under binding circuit precedent, this alone is

sufficient to warrant a new hearing. Montes-Lopez, 694 F.3d at 1093.

      In its answering brief, the government ignored binding circuit precedent

treating an IJ’s conduct that denies a respondent his right to counsel as itself

sufficient to warrant a new hearing in which a respondent’s right to counsel is

honored. At oral argument, the government argued for the first time that a list of

free legal service providers was attached to the notice to appear and notice of

hearing served on Pablo several years before his merits hearing. However, no such

list of legal service providers appears in the record. We doubt that an attachment

to a notice to appear or notice of hearing excuses the IJ’s obligations under 8

C.F.R. §§ 1240.10 and 1003.61. Cf. Picca, 512 F.3d at 79–80. In any event, the

government waived this argument by failing to raise it in its answering brief.1 See


      1
       In a letter filed after oral argument under Federal Rule of Appellate
Procedure 28(j), the government contends that it could not have waived any
argument regarding the regulatory violation because Pablo failed to cite directly to
8 C.F.R. § 1240.10(a)(2) in his opening or reply briefs. Pablo’s opening brief,
however, plainly argued that the IJ violated regulations requiring the IJ to ensure
that Pablo had received a list of pro bono legal service providers and that the
proper remedy was remand. In response, the government’s answering brief argued

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United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011) (treating an argument

that the government failed to raise in its answering brief as waived).

      Because the IJ failed to adhere to the requirements of 8 C.F.R. §§ 1240.10(a)

and 1003.61(b), the petition for review of the BIA’s dismissal of Pablo’s appeal is

GRANTED, the decision of the BIA is VACATED, and the case is REMANDED

for a new hearing. We deny Pablo’s petition for review of the BIA’s denial of the

motion to reopen given our resolution of the first petition. We decline to consider

the parties’ remaining arguments on appeal.




only that Pablo had voluntarily chosen to represent himself. What is more, in an
earlier 28(j) letter, the government specifically responded to “Petitioner’s argument
that . . . the [IJ] did not provide him with a list of legal service providers in
accordance with 8 C.F.R. § 1240.10(a),” but argued only that Pablo could not
establish prejudice. See Government’s February 21, 2020 28(j) Letter, Dkt. 47.
The government was clearly aware of Pablo’s regulatory claim, but it did not
contend that Pablo had in fact received the required list until oral argument.

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