                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 BALDEMAR ZUNIGA,                                   No. 16-72982
                                 Petitioner,
                                                     Agency No.
                      v.                            A089-247-110

 WILLIAM P. BARR, Attorney General,
                        Respondent.                   OPINION

                  On Petition for Review of an
                 Immigration Judge’s Decision

             Argued and Submitted May 17, 2019
                    Seattle, Washington

                      Filed August 20, 2019

 Before: Andrew J. Kleinfeld and Michelle T. Friedland,
Circuit Judges, and William H. Pauley III, * District Judge.

                       Per Curiam Opinion




     *
       The Honorable William H. Pauley III, United States District Judge
for the Southern District of New York, sitting by designation.
2                        ZUNIGA V. BARR

                          SUMMARY **


                           Immigration

    The panel granted Baldemar Zuniga’s petition for review
of an immigration judge’s decision affirming an asylum
officer’s negative reasonable fear determination in expedited
removal proceedings, and remanded, holding that 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, and that the
immigration judge deprived Zuniga of his right to counsel
by failing to obtain a knowing and voluntary waiver of that
right.

    The panel rejected the government’s argument that there
is no statutory right to counsel in reasonable fear
proceedings. The panel explained that 8 U.S.C. § 1228,
which governs expedited removal proceedings for non-
citizens convicted of committing aggravated felonies, and
through which non-citizens can request reasonable fear
interviews, explicitly provides that non-citizens have the
privilege of being represented, at no expense to the
government, by counsel. The panel further explained that
other subsections of § 1228 reinforce that right by requiring
that proceedings for the removal of criminal non-citizens be
conducted in conformity with § 1229a, which in turn
provides a statutory right to counsel in ordinary removal
proceedings, and directing the government to take
reasonable efforts not to impair an individual’s access and
right to counsel when considering whether to detain non-

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      ZUNIGA V. BARR                       3

citizens. The panel also stated that the broader legislative
context outside of the specific provisions dealing with
expedited removal proceedings for criminal non-citizens
also supports the conclusion that there is a right to counsel
in reasonable fear proceedings.

    The panel rejected the government’s contention, which
relied on a 1999 memo from the Executive Office for
Immigration Review interpreting 8 C.F.R. § 208.31, that IJs
have discretion to decide whether a non-citizen may be
represented by counsel.         The panel noted that the
government was correct that the regulations specify only that
non-citizens may be represented by counsel in the initial
reasonable fear interview before an asylum officer, and that
they are silent as to representation by counsel in the review
hearing before the IJ, but the panel concluded that deference
to EOIR’s interpretation of that silence was not warranted
because its interpretation conflicted with the plain text of
8 U.S.C. § 1228.

   The panel held that the IJ violated Zuniga’s Fifth
Amendment right to due process by failing to obtain a
knowing and voluntary waiver of his right to counsel. The
panel further held that Zuniga need not show prejudice
where he was denied his statutory right.

    The panel remanded for a new hearing in which Zuniga’s
right to counsel is honored.
4                     ZUNIGA V. BARR

                         COUNSEL

Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Petitioner.

Nehal Kamani (argued) and Kathryn M. McKinney,
Attorneys; Stephen J. Flynn, Assistant Director; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.


                         OPINION

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
                         ZUNIGA V. BARR                             5

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.

    1
       The asylum officer’s notes from the interview spell the name of
the attorney Zuniga mentioned as “Robert Pawl.” His current attorney,
Robert Pauw, confirmed at oral argument before our court that he was
also representing Zuniga at the time of Zuniga’s reasonable fear
interview, and that he was the same attorney Zuniga mentioned to the
asylum officer.
6                         ZUNIGA V. BARR

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.




    2
       In a later declaration, Zuniga testified that the video setup “made
it extremely difficult to understand everything that was happening” and
that he had been under the impression that the hearing “was going to be
a quick hearing where [he] was going to . . . ask for another extension.”
                      ZUNIGA V. BARR                         7

       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
8                         ZUNIGA V. BARR

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-

    3
      The reasonable fear screening process was modeled on the credible
fear screening process, which had previously been created to provide a
limited avenue for relief for inadmissible arriving aliens who are subject
to expedited removal under 8 U.S.C. § 1225. Such non-citizens can be
removed without further review unless they express either a credible fear
of persecution or torture in the country of removal or an intent to seek
asylum. 8 U.S.C. § 1225(b)(1)(A)–(B); 8 C.F.R. §§ 208.30, 1208.30.
Credible fear requires establishing a “significant possibility” that the
non-citizen could be eligible for asylum if given an opportunity in a more
fulsome proceeding. 8 U.S.C. § 1225(b)(1)(B)(v). The reasonable fear
screening process was designed to fulfill a similar function for non-
citizens being deported under 8 U.S.C. § 1228, but it requires them to
meet a more demanding standard—they must demonstrate a “reasonable
possibility” of persecution or torture in the country of removal.
Regulations Concerning the Convention Against Torture, 64 Fed. Reg.
at 8485 (“Because the standard for showing entitlement to the[] forms of
protection [available to these non-citizen aggravated felons] (a
probability of persecution or torture) is significantly higher than the
standard for asylum (a well-founded fear of persecution), the screening
standard adopted for initial consideration of withholding and deferral
requests in these contexts is also higher.”); see also 8 C.F.R. §§ 208.31,
1208.31.
    4
     There are two identical sets of regulations contained in Chapters I
and V of 8 C.F.R. that are applicable to the Department of Homeland
Security and the Executive Office for Immigration Review, respectively.
                           ZUNIGA V. BARR                                9

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


Aliens and Nationality; Homeland Security; Reorganization of
Regulations, 68 Fed. Reg. 9824, 9825 (Feb. 28, 2003). Because the text
is the same in both sets of regulations, for the sake of simplicity we will
refer only to one set throughout the remainder of this opinion.
10                        ZUNIGA V. BARR

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 (through which
non-citizens can request reasonable fear interviews) are a
creation of INA § 238(b), currently codified at 8 U.S.C.
§ 1228. 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

     5
       As explained below, we have previously held that if a non-citizen
appears without counsel in a removal hearing, “there must be a knowing
and voluntary waiver of the right to counsel” before the hearing can
proceed. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). A
valid waiver requires that the IJ “(1) inquire specifically as to whether
petitioner wishes to continue without a lawyer; and (2) receive a knowing
and voluntary affirmative response.” Id. (citations omitted).
     6
       There is some overlap between 8 U.S.C. § 1228(a), which
describes the general procedures for removing criminal non-citizens, and
§ 1228(b), the provision under which Zuniga was removed, which
applies specifically to the removal of criminal non-citizens who are not
permanent residents. Both emphasize the need to conform with the
procedures described in 8 U.S.C. § 1229a, but § 1228(b) provides some
specific procedures applicable only to non-citizens who are not
permanent residents.
                      ZUNIGA V. BARR                        11

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 includes reasonable fear review
proceedings. Nothing in the language of § 1228 indicates
that the right to counsel is conditional or limited only to
certain types of proceedings authorized under that statute,
expedited or otherwise. Cf. United States v. Reyes-Bonilla,
671 F.3d 1036, 1045 (9th Cir. 2012) (noting, with citation to
8 U.S.C. § 1228, that the “right to counsel in expedited
removal proceedings is . . . secured by statute”).

    The broader legislative context—outside of the specific
provisions dealing with expedited removal proceedings for
criminal non-citizens—also supports the conclusion that
there is a right to counsel in reasonable fear proceedings.
The INA gives non-citizens the right to be represented by an
attorney in most immigration proceedings as long as the
government does not have to bear the expense. In particular,
8 U.S.C. § 1362 provides that “[i]n any removal proceedings
before an immigration judge and in any appeal proceedings
before the Attorney General from any such removal
proceedings,” non-citizens “shall have the privilege of being
represented (at no expense to the Government)” by counsel
of their choosing. See also 8 U.S.C. § 1229a(b)(4)(A)
(“[T]he alien shall have the privilege of being represented,
at no expense to the Government, by counsel of the alien’s
choosing who is authorized to practice in such
proceedings.”). Because the text of § 1228 is both “clear and
12                     ZUNIGA V. BARR

consistent with the statutory scheme at issue, the plain
language of the statute is conclusive” in providing a statutory
right to counsel. Emmert Indus. Corp. v. Artisan Assocs.,
Inc., 497 F.3d 982, 987 (9th Cir. 2007) (quoting Molski v.
M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007)).

    The Government resists this conclusion, arguing that the
IJ has discretion to decide whether a non-citizen may be
represented by counsel. The Government’s argument is
premised on a 1999 memo from the Executive Office for
Immigration Review (“EOIR”). That memo interpreted
8 C.F.R. § 208.31 as giving an IJ the right to decide whether
a non-citizen may be represented in the negative reasonable
fear determination review hearing because the regulation did
not explicitly mention the right to counsel in those
proceedings. See Exec. Office for Immigration Review,
Office of the Chief Immigration Judge, Operating Policies
and Procedures Memorandum No. 99-5: Implementation of
Article 3 of the UN Convention Against Torture 8 (1999)
(“With regard to representation in reasonable fear review
proceedings, the . . . regulations are . . . silent. . . . Since
there is no specific regulatory guidance on this point, the
issue is left to the discretion of the Immigration Judge.”).

     The Government is correct that the regulations specify
only that non-citizens may be represented by counsel in the
initial reasonable fear interview before an asylum officer,
and that they are silent as to representation by counsel in the
review hearing before the IJ. Compare 8 C.F.R. § 208.31(c),
with 8 C.F.R. § 208.31(g). But its argument that we should
defer to EOIR’s interpretation of that silence fails because
that interpretation conflicts with the plain text of 8 U.S.C.
§ 1228. We “need not accept an agency’s interpretation of
its own regulations if that interpretation is inconsistent with
the statute under which the regulations were promulgated.”
                          ZUNIGA V. BARR                              13

Turtle Island Restoration Network v. U.S. Dep’t of
Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quotation
marks omitted); see also Auer v. Robbins, 519 U.S. 452, 461
(1997) (holding that courts should generally defer to an
agency’s interpretation of its own regulation unless, among
other circumstances, that interpretation is “plainly
erroneous” (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 359 (1989)). 7 We therefore conclude
that Zuniga had a right to representation by an attorney in his
reasonable fear review hearing before the IJ.

     We have previously held that “[a]lthough there is no
Sixth Amendment right to counsel in an immigration
hearing, Congress has recognized [a right to counsel] among
the rights stemming from the Fifth Amendment guarantee of
due process” by codifying it. Tawadrus v. Ashcroft,
364 F.3d 1099, 1103 (9th Cir. 2004); see also Rios-Berrios
v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985) (“[D]ue process
mandates that [a non-citizen] is entitled to counsel of his own
choice at his own expense under terms of the [INA].”). And,
further, before a petitioner continues without counsel in an
immigration proceeding for which there is a statutory right
to counsel, due process mandates that “there must be a
knowing and voluntary waiver of the right to counsel,”

    7
       Nor is the agency’s interpretation persuasive enough to otherwise
command respect. See Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944) (explaining that “[t]he weight of” an agency interpretation “will
depend upon the thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade, if lacking power to
control”). In addition to being contrary to the statute, the EOIR memo’s
interpretation could lead to absurd results. For example, a non-citizen
who had been informed by his hearing notice that he could bring an
attorney to represent him might arrive at the hearing only to learn that
counsel was barred from the hearing at the discretion of the IJ.
14                        ZUNIGA V. BARR

which requires that the IJ “(1) inquire specifically as to
whether petitioner wishes to continue without a lawyer; and
(2) receive a knowing and voluntary affirmative response.”
Tawadrus, 364 F.3d at 1103 (citations omitted). As the
Government concedes, Zuniga’s colloquy with the IJ was
inadequate to effect a valid waiver of the right to counsel
under Tawadrus.

    The Government contends that a remand is nevertheless
unavailable to Zuniga because he cannot show prejudice
from the lack of counsel. This contention is foreclosed by
Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), in
which we held that “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.” Id. at 1093–94. 8

                                  IV.

    For the reasons described above, we conclude that the IJ
violated Zuniga’s right to counsel in his reasonable fear
review proceeding by failing to obtain a valid waiver, and
that Zuniga is entitled to a new hearing before an IJ in which

     8
       Gomez-Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018), is not to
the contrary. There, we held that we could not presume prejudice where
a non-citizen, Gomez-Velazco, was denied counsel during one “discrete
stage” of expedited removal proceedings—his initial interaction with
officers from the Department of Homeland Security. Id. at 994–95. In
Gomez-Velazco, we distinguished Montes-Lopez on the ground that,
after the discrete phase in which he lacked counsel, Gomez-Velazco was
able to consult with counsel before his removal order was actually
executed. Id. at 993–94. The same was not true here. Zuniga was denied
his right to counsel at the final stage of the reasonable fear proceeding—
and thus, unlike the situation in Gomez-Velazco, Zuniga’s attorney had
no later opportunity to “remedy any damage done by [his] client’s un-
counseled admissions or waivers.” Id. at 994.
                     ZUNIGA V. BARR                     15

his right to counsel is honored. Given this conclusion, we
need not reach Zuniga’s other challenges to the proceedings
before the IJ or to the IJ’s reasoning.

   The Petition for Review is GRANTED and we
REMAND for further proceedings consistent with this
opinion.
