                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 25 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


RUDY FAUSTINO GOMEZ                    )      No. 09-73086
HERNANDEZ,                             )
                                       )      Agency No. A074-180-961
      Petitioner,                      )
                                       )      MEMORANDUM*
      v.                               )
                                       )
ERIC H. HOLDER, Jr., Attorney          )
General,                               )
                                       )
      Respondent.                      )
                                       )

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

                           Submitted November 5, 2013**
                             San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

      Rudy Faustino Gomez Hernandez, a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’ (BIA) denial of his


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
application for asylum,1 withholding of removal,2 and Convention Against Torture

relief.3 We grant the petition.

      Gomez asserts that his right to due process under the Fifth Amendment to

the United States Constitution was violated because he was denied his statutory

right to representation by counsel. See 8 U.S.C. § 1362. We agree. That right is

of the utmost importance,4 but a mere two weeks before his scheduled asylum

hearing, the Immigration Judge (IJ) relieved his attorney and Gomez was sent

notice of that. He was also notified that he was required to appear and proceed on

the appointed date with or without counsel, and that no continuance would be

granted. He did appear without counsel, and with little further ado the hearing

proceeded. The IJ did not ask if he wished to waive counsel, and, of course, did

not receive a knowing and voluntary waiver. See Tawadrus v. Ashcroft, 364 F.3d

1099, 1103 (9th Cir. 2004). That was unsatisfactory. Gomez’s right to counsel


      1
          8 U.S.C. § 1158.
      2
          8 U.S.C. § 1231(b)(3).
      3
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.
      4
       See Baltazar-Alcazar v. INS, 386 F.3d 940, 944–45 (9th Cir. 2004); Castro-
O’Ryan v. U.S. Dep’t of Immigration & Naturalization, 847 F.2d 1307, 1312 (9th
Cir. 1988).

                                         2
was violated by the concatenation of the IJ’s release of prior counsel, the shortness

of the time Gomez was given to obtain new counsel, who had to be ready to

proceed, the notice that he could not obtain any continuances, and the IJ’s failure to

inquire into his desire for representation before proceeding. See Montes-Lopez v.

Holder, 694 F.3d 1085, 1088–89 (9th Cir. 2012); Biwot v. Gonzales, 403 F.3d

1094, 1098–99 (9th Cir. 2005); Tawadrus, 364 F.3d at 1103–04; Rios-Berrios v.

I.N.S., 776 F.2d 859, 862–63 (9th Cir. 1985). Moreover, “an alien who shows that

he has been denied the statutory right to be represented by counsel in an

immigration proceeding need not also show that he was prejudiced by the absence

of the attorney.” Montes-Lopez, 694 F.3d at 1093–94.5

      Petition GRANTED.




      5
       Because our decision on this ground is dispositive, we need not, and do not,
consider the other issues raised by the parties.

                                          3
                                                                             FILED
Gomez Hernandez v. Holder, 09-73086                                           NOV 25 2013

                                                                         MOLLY C. DWYER, CLERK
Ikuta, J., concurring:                                                      U.S. COURT OF APPEALS



      I concur in the majority’s decision reluctantly. Although I am bound by

Montes-Lopez v. Holder’s holding that the denial of an alien’s statutory right to

counsel is per se reversible error, 694 F.3d 1085, 1090, 1093–94 (9th Cir. 2012),

this conclusion contradicts our precedents, see Singh v. Holder, 638 F.3d 1196,

1209 (9th Cir. 2011); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004);

Castro-O’Ryan v. U.S. Dep’t of Immigration & Naturalization, 847 F.2d 1307,

1312–13 (9th Cir. 1987), is contrary to basic principles of administrative law, see

Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009), and comes down on the wrong

side of a circuit split, see, e.g., Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.

1993) (requiring a petitioner who alleges a denial of the right to counsel in

immigration proceedings to demonstrate prejudice); Farrokhi v. INS, 900 F.2d 697,

702 (4th Cir. 1990) (same); Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990)

(same).

      Montes-Lopez’s improper reliance on Sixth Amendment precedents, see 694

F.3d at 1092, side-steps our long-established rule that a petitioner has only a

statutory right to counsel, 8 U.S.C. § 1362, that “stem[s] from the Fifth

Amendment guarantee of due process,” Tawadrus, 364 F.3d at 1103. Our

precedents make clear that violations of the Fifth Amendment guarantee of due
process in the immigration context are subject to review for harmless error. See,

e.g., Singh, 638 F.3d at 1209 (rejecting claim of due process error where the

petitioner could not demonstrate prejudice); Sanchez-Cruz v. INS, 255 F.3d 775,

779 (9th Cir. 2001) (requiring an alien to demonstrate prejudice to obtain relief

from a BIA decision that violates due process). Indeed, we have explained that the

agency’s failure to accord an alien the statutory right to counsel would amount to a

denial of due process only “[i]f the prejudice to the alien is sufficiently great.”

Castro-O’Ryan, 847 F.2d at 1313. In reaching the erroneous conclusion that a

violation of a petitioner’s Fifth Amendment right is a structural error requiring

remand in every case, Montes-Lopez turned its back on these binding precedents.

      Not only does Montes-Lopez’s conclusion conflict with our case law, it also

contradicts basic principles of administrative law. As the Supreme Court explained

in Shinseki v. Sanders, federal courts may not presume that an administrative

agency’s error was prejudicial, but rather must determine harmlessness on a fact-

specific, case by case basis. 556 U.S. at 407. Although Sanders articulated this

rule in the context of veteran claims appeals, the Court noted this rule applied to

other administrative agency decisions as well. Id. at 406. And we have likewise

acknowledged the applicability of this rule in immigration proceedings. Castro-

O’Ryan, 847 F.2d at 1313; see also Zolotukhin v. Gonzales, 417 F.3d 1073,

                                            2
1076–77 (9th Cir. 2005) (holding that the petitioner must show prejudice before we

can grant a petition for review based on a due process violation). Indeed, there is

no logical basis for holding that the denial of the statutory right to counsel is a

structural error in immigration proceedings, particularly when such an error is

reviewed for harmlessness in other administrative contexts. See Vidal v. Harris,

637 F.2d 710, 713 (9th Cir. 1981) (requiring a social security claimant to

“demonstrate prejudice or unfairness in the administrative proceedings” from “the

absence of counsel”).

      Now, instead of following the circuits that properly adhere to this long-

established analysis applicable to agency errors, Montes-Lopez and the out-of-

circuit opinions on which it relies inexplicably abandon this standard and instead

treat an alien’s Fifth Amendment statutory right to counsel “at no expense to the

government” as if it were equivalent to a criminal defendant’s absolute Sixth

Amendment right to counsel. Montes-Lopez, 694 F.3d at 1092–93. This

conclusion has no basis in the Constitution or in precedent, and is contrary to

Sanders’s warning against the use of “mandatory presumptions and rigid rules

rather than case-specific application of judgment” in determining whether an

administrative agency’s error requires reversal. 556 U.S. at 407.

      Accordingly, while I am bound by Montes-Lopez, it was wrongly decided,

                                            3
and we should revisit this decision en banc.




                                          4
