                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2003

Ponce-Leiva v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 01-3900




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                                   PRECEDENTIAL

                                                Filed June 5, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 01-3900


               JULIO DONALDO PONCE-LEIVA,
                                      Petitioner
                                  v.
        JOHN D. ASHCROFT, ATTORNEY GENERAL
               OF THE UNITED STATES,
                                    Respondent

                Petition for Review of an Order
             of the Board of Immigration Appeals
                       (No. A70 657 739)

                  Argued: September 13, 2002
        Before: SLOVITER, RENDELL, Circuit Judges
               and McCLURE,* District Judge

                       (Filed: June 5, 2003)

                          Steven A. Morley (ARGUED)
                          Bagia & Morley
                          Philadelphia, PA 19106
                            Attorney for Petitioner




* Hon. James F. McClure, Jr., Senior Judge, United States District Court
for the Middle District of Pennsylvania, sitting by designation.
                              2


                      Robert D. McCallum, Jr.
                       Assistant Attorney General
                      Ernesto H. Molina
                       Senior Litigation Counsel
                      Regina Byrd (ARGUED)
                       Attorney
                      Michael P. Lindemann
                       Attorney
                      Lyle D. Jentzer
                       Attorney
                      Office of Immigration Litigation
                      Civil Division
                      United States Justice Department
                      Washington, D.C. 20044
                        Attorneys for Respondent


                 OPINION OF THE COURT

McCLURE, District Judge.
   This is a petition for review of a final order of removal
issued by the Board of Immigration Appeals (BIA). The BIA
affirmed the immigration judge’s decision that Julio
Donaldo Ponce-Leiva was removable and ineligible for
asylum. Ponce-Leiva presents us with two questions. First,
did the immigration judge’s decision to hold an asylum
hearing after Ponce-Leiva’s attorney suddenly refused to
appear constitute a denial of Ponce-Leiva’s right to counsel?
Second, did the immigration attorney’s failure to appear at
the hearing or make a timely request for a continuance
constitute ineffective assistance of counsel?
  We have jurisdiction to review the BIA’s final order. See
8 U.S.C. § 1252(b)(2). We will deny Ponce-Leiva’s petition for
review.

                              I.
  On April 17, 1997, Ponce-Leiva, a native and citizen of
Guatemala, received personal service of a Notice to Appear.
The Notice to Appear stated that because Ponce-Leiva had,
                              3


six years earlier, entered the United States without being
inspected or admitted by an immigration officer, he was in
violation of § 212(a)(6)(A)(i) of the Immigration and
Naturalization Act (INA). It informed Ponce-Leiva that a
hearing was scheduled for September 9, 1997.
Administrative Record (A.R.) at 119-20.
   At the September 9, 1997 hearing, Ponce-Leiva appeared
without counsel. The immigration judge informed him of his
right to counsel and continued the hearing until November
4, 1997, giving Ponce-Leiva an opportunity to obtain
representation.
  On November 4, 1997, Ponce-Leiva appeared at the
hearing, and this time he was accompanied by counsel.
Through counsel, Ponce-Leiva admitted removability and
stated that he would pursue asylum. The immigration
judge scheduled the merits hearing for July 1, 1998.
   On June 29, 1998, two days before the merits hearing,
the immigration court received a letter from counsel dated
June 25, 1998 requesting a continuance. According to the
letter, Counsel would be unavailable for the merits hearing
because he planned to be in San Diego. In the letter,
counsel offered alternative dates for the hearing. Id. at 109.
  On the same day, June 29, 1998, the immigration judge
denied counsel’s continuance request. The order gave the
judge’s reason, stating that “you accepted this date on
November 4, 1997.” Id. at 110.
  On July 1, 1998, the merits hearing was held as
scheduled. Ponce-Leiva’s asylum application raised two
grounds for asylum: (1) he needed a job in order to support
his family; and (2) if he returned to Guatemala, he would be
homeless because his family could not support him. Id. at
104. After explaining that he would proceed with the
hearing, the immigration judge questioned Ponce-Leiva on
his bases for asylum.
  Through a written order and an oral decision, the
immigration judge announced his decisions to deny the
request for continuance and to deny Ponce-Leiva’s
application for asylum. Id. at 36-39.
                              4


   The immigration judge elaborated upon his reason for
denying the continuance request. He stated that continuing
the hearing was not in Ponce-Leiva’s best interest. He noted
that while counsel has been collecting fees from Ponce-
Leiva, he failed to provide Ponce-Leiva with advice on how
to stay in the country. The immigration judge stated that
although counsel agreed eight months earlier to appear at
the hearing, he abandoned Ponce-Leiva at the last minute.
The judge concluded that without any evidence that
counsel was a benefit to Ponce-Leiva, Ponce-Leiva was
better off if the judge went forward with the hearing. Next,
the judge gave more reasons for denying the continuance
request: (1) the taxpayers paid for the court time set aside
for Ponce-Leiva’s case; (2) the expectations of the INS would
be upset if cases such as Ponce-Leiva’s could not be orderly
processed; (3) the ability of the immigration court to
manage its docket would be impeded if attorneys could
shirk their responsibilities in such a manner; and (4)
according to Matter of Santos, 19 I&N Dec. 101 (BIA 1986),
the absence of counsel is not necessarily prejudicial error.
  The immigration judge then commented on his reasons
for denying Ponce-Leiva’s application for asylum:
      The respondent freely acknowledged that he is an
    economic migrant and not a “refugee.” He stated this in
    his asylum application. When the Court interrogated
    him to see if there was any other aspect of his case, it
    found none. Again, the respondent honestly stated that
    he came to the United States in order to support
    himself and his family. The facts show clearly that the
    respondent was never persecuted in the past, or that
    he faces a reasonable possibility thereof on account of
    any factor protected by the [INA].
A.R. at 39. The immigration judge granted voluntary
departure.
  Ponce-Leiva appealed to the BIA. In his notice of appeal,
Ponce-Leiva claimed that in denying the request for
continuance, the immigration judge abused his discretion.
Id. at 26. In his brief to the BIA, Ponce-Leiva argued that (1)
the absence of counsel violated his right to counsel and his
due process rights; and (2) counsel provided ineffective
                              5


assistance of counsel, which violated his due process
rights. Id. at 9-12. The brief contained no explicit reference
to the immigration judge’s decision to deny the continuance
request.
  On September 24, 2001, the BIA affirmed the
immigration judge’s decision and dismissed the appeal.
  As for the due process claim relating to the absence of
counsel, the BIA stated the following:
  (1) Because Ponce-Leiva could not show that he was
prejudiced by the absence of counsel, there was no due
process violation;
   (2) “[I]n any event, we have determined that the absence
of counsel at his hearing does not alter our conclusion that
the decision of the Immigration Judge is correct.” The
government states that the “decision” referred to in this
sentence is the decision to deny counsel’s continuance
request. Government’s Brief at 11.
  (3) “We find no procedural or legal errors indicating that
[Ponce-Leiva] was either deprived of a full and fair hearing
or denied the opportunity to apply for all available forms of
relief from removal.” Id. at 3.
  As for ineffective assistance, the BIA rejected that claim,
explaining that Ponce-Leiva could neither show that his
proceedings were fundamentally unfair nor show that he
was prejudiced by counsel’s performance. Id.

                             II.
   Before we may decide whether Ponce-Leiva’s rights were
violated, we first must determine whether the claims are
properly before the court. The government dedicates much
of its brief to arguing that Ponce-Leiva waived the claims he
raises before us.
  In his brief to this court, Ponce-Leiva raises the following
claims: (1) the denial of the continuance request and the
subsequent holding of the hearing was a denial of his right
to counsel, and (2) counsel’s performance constituted
ineffective assistance of counsel. According to the
government, both claims are barred.
                              6


   The government contends that Ponce-Leiva is barred from
raising with this court a claim that is based on the denial
of the continuance request. It advances two arguments.
First, it asserts that in determining whether Ponce-Leiva’s
due process rights were violated, the BIA did not consider
the immigration judge’s denial of the continuance request.
Rather, according to the government, the BIA referred to
the denial of the continuance request only in the context of
whether the immigration judge abused his discretion in
denying the request. The government contends that,
therefore, Ponce-Leiva’s current link between the
continuance request and due process was not found in the
BIA’s final order (which is the order appealed from) and
thus not properly before this court. Second, the government
states that Ponce-Leiva failed in his appeal to the BIA to
equate the denial of the continuance request with the
denial of his due process rights. It argues that accordingly,
Ponce-Leiva failed to exhaust this claim, which as a result
is now barred from judicial review.
   As for the claim for ineffective assistance of counsel, the
government argues that because it is raised here in a
different fashion than the way it was raised before the BIA,
we may not review it. The government points to the fact
that while the ineffective-assistance claim before the BIA
related to whether the immigration judge denied Ponce-
Leiva his due process rights, the ineffective-assistance
claim before this court related to whether Ponce-Leiva
complied with the procedural requirements announced in
Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988). Therefore,
the government argues, the BIA did not consider the
instant ineffectiveness claim, and the claim is thus
exhausted.
  We reject the government’s arguments, and we find that
each of Ponce-Leiva’s claims is properly before this court.
  First, the due process claim is inextricably linked with
the immigration judge’s denial of the continuance request.
Ponce-Leiva’s assertion that his right to counsel was
violated is based solely on the immigration judge’s decision
to deny the continuance request. While it would have been
preferable for Ponce-Leiva to have taken greater pains in
equating the denial of the continuance request with the
                              7


violation of his due process rights, the two claims are one
and the same. This finding is consistent with the
government’s position that the BIA’s order, in a sentence
that did not mention the continuance request, actually
addressed the continuance argument. Accordingly, in part
by the government’s own admissions, the issue regarding
the denial of the continuance request appeared both in the
BIA’s order and in Ponce-Leiva’s submission to the BIA, and
it forms the basis of Ponce-Leiva’s due process claims.
Thus, no procedural bar exists.
  Second, Ponce-Leiva’s claim for ineffective assistance of
counsel was not waived. We note that Lozada sets forth a
three-step procedure that an alien must follow to justify the
reopening of removal proceedings on the basis of ineffective
assistance of counsel. The steps include, inter alia, filing a
motion and giving the allegedly ineffective counsel an
opportunity to respond. Lu v. Ashcroft, 259 F.3d 127, 132
(3d Cir. 2001) (citing Lozada, 19 I.&N. Dec. at 639). We
concluded in Lu that the BIA’s three-prong test was a
reasonable exercise of the BIA’s discretion, id. at 132, but
we also warned that there were inherent dangers in
applying a strict, formulaic interpretation of Lozada. Id. at
133. While Ponce-Leiva’s brief places most of its emphasis
on showing that he has fulfilled Lozada’s requirements, it
also suggests that counsel’s ineffectiveness was a denial of
due process. Accordingly, we may analyze the claim, at
least within the parameters of due process.

                             III.
  As stated above, Ponce-Leiva now raises the following
claims: (1) the denial of the continuance request and the
subsequent holding of the hearing constituted a violation of
his statutory and constitutional right to counsel and a
violation of due process; and (2) counsel’s unreasonable
absence at the hearing constituted ineffective assistance of
counsel.
  First, we consider whether denial of the continuance
request violated Ponce-Leiva’s right to counsel. It is well-
established that an alien at an immigration hearing has
some form of right to counsel. It is equally well-settled,
                             8


though, that “there is no Sixth Amendment right to counsel
in deportation hearings.” Uspango v. Ashcroft, 289 F.3d
226, 231 (3d Cir. 2002). Deportation proceedings are not
“criminal prosecutions.” An alien’s right to counsel has
been designated, at different times, as both constitutional
and statutory. The statutory right is encoded in INA
§ 240(b)(4), which states that “the alien shall have the
privilege of being represented, at no expense to the
Government, by counsel of alien’s choosing who is
authorized to practice in such proceedings.” 8 U.S.C.
§ 1229a(b)(4)(A). This statutory provision has been tracked
in the applicable INS regulations. See 8 C.F.R. §§ 3.16(b),
240.3, 292.1, and 292.5. The constitutional right to counsel
is based upon the Fifth Amendment’s guarantee of due
process of law. Uspango, 289 F.3d at 231.
   While it is clear that aliens have both a statutory and a
constitutional right to counsel, it is unclear how the two
relate to each other. Courts of appeals have presented this
relationship in different ways. According to the Ninth
Circuit, due process is violated only if a violation of the
statutory right to counsel is accompanied by significant
prejudice. See, e.g., Castro-O-Ryan v. U.S. Dep’t. of
Immigration and Naturalization, 847 F.2d 1307, 1313 (9th
Cir. 1988). The First Circuit has recognized both rights, but
it has considered them without distinguishing them. See,
e.g., Nelson v. INS, 232 F.3d 258, 261 (1st Cir. 2000). The
Eighth Circuit has also recognized both, and it has
suggested (but not explicitly stated) that in order for a due
process violation to be found, the deprivation must be
especially egregious. See, e.g., United States v. Torres-
Sanchez, 68 F.3d 227, 230-31 (8th Cir. 1995).
  Ponce-Leiva’s counsel stated at oral argument that in
order for Ponce-Leiva’s right to counsel to have been
violated, the immigration judge must have abused his
discretion by denying the continuance request.
  We find that there was no abuse of discretion or denial of
Ponce-Leiva’s right to counsel. The immigration judge was
faced with counsel’s flagrant violation of the practices and
procedures of the immigration court. Counsel had been
informed eight months prior to the hearing of the date on
which the hearing was to be held and had agreed then to
                             9


that date. His last-minute letter requesting a continuance
and his failure to secure alternate counsel were plainly
inadequate. No emergency on the part of counsel was
alleged. Indeed, no reason was given for counsel’s trip to
San Diego. The government was ready to proceed, and the
court and the taxpayers had an interest in disposing of
Ponce-Leiva’s case. Further, the immigration judge made a
reasonable determination that in light of counsel’s previous
deficient performance with respect to Ponce-Leiva, his
absence at the hearing would have made no difference.
   The dissent cites a number of cases in which courts of
appeals found that an immigration judge’s denial of a
continuance request and subsequent holding of a hearing
constituted an abuse of discretion. The cases discussed in
the most detail are Castaneda-Delgado v. INS, 525 F.2d
1295 (7th Cir. 1975), and a case from this court, Chlomos
v. INS, 516 F.2d 310 (3d Cir. 1975). The dissent argues that
our decision is contrary to these cases and is therefore
incorrect. We disagree. We believe that each is
distinguishable.
  In Castaneda-Delgado, the petitioners, who spoke no
English, stated at their initial hearing that they wished to
obtain representation. The judge granted a two-day
continuance in order for them to secure an attorney. At the
hearing two days later, the petitioners were still without a
lawyer, and the judge denied their request for another
continuance. The Seventh Circuit found that the judge’s
denial was “arbitrary and capricious and constituted a
gross abuse of discretion.” Castaneda-Delgado, 525 F.2d at
1300.
  We agree that giving the Castaneda-Delgado petitioners a
mere two days to secure counsel — and then proceeding
with the hearing when they unsurprisingly did not have a
lawyer — was an abuse of discretion. Ordering the
petitioners to make a mad dash for representation — and
then proceeding without counsel when they could not
comply with the order — was fundamentally unfair. In the
instant case, however, Ponce-Leiva already had an attorney,
and the attorney knew eight months in advance the date of
the merits hearing. He simply decided that he was not
going to show up. The immigration judge took into
                             10


consideration the burden on the government and on the
taxpayers, and it was not unreasonable for the immigration
judge to decide that a further continuance was not
warranted.
  In Chlomos, the petitioner was subject to a deportation
hearing. He was already represented by counsel, but,
notwithstanding various continuances, he was unable to
contact his attorney, and the court never gave notice to the
attorney that the petitioner was in the process of
deportation proceedings. The immigration court held the
hearing without the petitioner’s attorney. We found that the
petitioner’s right to counsel was violated: “We disapprove of
an administrative agency scheduling a hearing for a person
who it knows is represented by counsel without giving
notice to the lawyer.” Chlomos, 516 F.2d at 313. Our
grievance with the immigration court in Chlomos was with
the court’s decision to hold a hearing without the
petitioner’s attorney being notified. In the instant case,
counsel for Ponce-Leiva knew months in advance about the
hearing, but he failed to appear. The facts are
distinguishable, as is our rationale for ruling against Ponce-
Leiva.
   As we stated in Chlomos, “[w]e do not condone
unnecessary delay or dilatory tactics through the ruse of
counsel’s unavailability.” Id. at 314. While the dissent is
correct in that the immigration judge in Ponce-Leiva’s case
was presented with no evidence of “unnecessary delay or
dilatory   tactics   through     the  ruse   of   counsel’s
unavailability,” the onus was on counsel to provide an
adequate reason for his failure to appear. In Castaneda-
Delgado and Chlomos, either the petitioners were
unrepresented (Castaneda-Delgado) or counsel was
uninformed of the deportation hearing (Chlomos). In both of
these cases, the right to counsel was no doubt violated. In
the instant case, however, Ponce-Leiva was represented,
and counsel knew of his obligations. Counsel’s failure to
discharge his duties did not mean that Ponce-Leiva’s “right
to counsel” was violated; Ponce-Leiva was simply the victim
of poor lawyering.
  Our holding is consistent with the Eighth Circuit’s
statement that with respect to immigration proceedings,
                              11


“the mere inability to obtain counsel does not constitute a
violation of due process.” Torres-Sanchez, 68 F.3d at 231.
Cases arising from the Eighth Circuit, the Tenth Circuit,
and even the Ninth Circuit itself have applied this rule. See
id; Nazakat v. INS, 981 F.2d 1146, 1148 (10th Cir. 1992);
Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986). In
each of these cases, the petitioner, after being given ample
time, was unable to secure representation for an
immigration     hearing,   and    the    immigration    judge
nevertheless proceeded with the hearing. In the instant
case, Ponce-Leiva was given ample time to obtain counsel,
and he in fact did so. He was unable, however, to secure
counsel’s presence at the hearing. This mere “inability to
obtain counsel” was not a violation of due process, or a
denial of Ponce-Leiva’s right to counsel.
   We note that in making its decision, the BIA determined
that the immigration judge fulfilled his obligations under
the INA, which states that “the alien shall have a
reasonable opportunity to examine the evidence against the
alien [and] to present evidence on the alien’s own behalf.”
8 U.S.C. § 1229a(b)(4)(B). In so doing, the BIA concluded
that the absence of counsel does not necessarily violate the
INA. The BIA’s interpretation of the alien’s statutory right to
counsel is an interpretation of INS regulations to which we
give “great deference.” Abdille v. Ashcroft, 242 F.3d 477,
484 (3d Cir. 2001) (citations omitted).
  Ponce-Leiva was not denied the right to counsel, and he
was not denied the opportunity to obtain the counsel of his
choice. His attorney simply failed to come through for him.
While this is unfortunate, Ponce-Leiva’s right to counsel
was not violated.
  The dissent alludes to a number of cases from the Ninth
Circuit holding that an immigration judge’s denial of a
continuance request both constituted an abuse of
discretion and violated the alien’s right to counsel. See
Reyes-Palacios v. INS, 836 F.2d 1154 (9th Cir. 1988);
Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir. 1987); Rios-
Berrios v. INS, 776 F.2d 859 (9th Cir. 1985); Castro-Nuno v.
INS, 577 F.2d 577 (9th Cir. 1978). Reyes-Palacios and Rios-
Berrios are analogous to Castenada-Delgado; that is, when
the immigration judge decided to proceed with the hearing,
                             12


the alien had not yet obtained representation. These facts
are distinguishable from the instant facts, in which Ponce-
Leiva had already obtained the counsel of his choice.
Colindres-Aguilar and particularly Castro-Nuno, however,
are similar to the instant case in that the alien already was
represented but the attorney inexplicably failed to appear.
The Ninth Circuit found that under the circumstances of
those cases, the scenarios presented a denial of the alien’s
right to counsel. Nevertheless, to the extent that the facts
in those cases may be similar to those in the instant case,
we are not thereby persuaded that our conclusions are
incorrect.
   We agree with the Ninth Circuit’s view that the resolution
of this type of case is fact-driven: “The question whether
denial of a continuance in an immigration proceeding
constitutes an abuse of discretion cannot be decided
through the application of bright-line rules; it must be
resolved on a case by case basis according to the facts and
circumstances of each case.” Baires v. INS, 856 F.2d 89, 91
(9th Cir. 1988) (citation omitted). In this case, one of the
circumstances which the immigration judge apparently
factored into his decision to deny the continuance was the
facial lack of merit in Ponce-Leiva’s application for asylum.
This initial impression was borne out by the evidence
presented at the hearing. It was clear at the outset,
however, that Ponce-Leiva’s claim for asylum was based
solely on economic reasons, and therefore would not merit
relief. By making this observation, we do not intend to
imply that a continuance must be granted if a claim is
facially meritorious. We do believe it is reasonable and
proper for an immigration judge to consider the apparent
lack of merit in a claim when deciding to proceed without
counsel.
  We do not suggest that there could never be a violation
of due process by the failure to grant a continuance to an
asylum seeker who is without counsel. However, under the
facts and circumstances of the instant case, the
immigration judge’s denial of the continuance request did
not constitute an abuse of discretion, did not violate Ponce-
Leiva’s statutory right to counsel, and did not violate any of
Ponce-Leiva’s constitutional rights. In Chlomos, in which we
                             13


ruled that an alien’s right to counsel was violated, we found
that there existed an “undue curtailment of the privilege of
representation.” Chlomos, 616 F.2d at 311. That was not
the case here. No further due-process discussion is
necessary.

                             IV.
  Ponce-Leiva next advances a claim for ineffective
assistance of counsel. This claim is based on the Fifth
Amendment due process clause. Uspango, 289 F.3d at 231.
To advance a successful claim for ineffective assistance of
counsel, an alien must demonstrate prejudice — he “must
show that he was prevented from reasonably presenting his
case.” Id. (citations and internal quotation marks omitted).
Ponce-Leiva has not met this burden. He admits
removability, and he makes no attempt to show that the
questions asked by the immigration judge did not give him
the opportunity to present his case fully. Counsel’s absence
did not prejudice Ponce-Leiva, and therefore Ponce-Leiva’s
ineffectiveness claim must fail.

                             V.
   Because the immigration judge’s denial of the
continuance request did not violate Ponce-Leiva’s right to
counsel or constitute an abuse of discretion, and because
Ponce-Leiva’s claim for ineffective assistance of counsel also
fails, we will deny the petition for review.
                            14


RENDELL, Circuit Judge, dissenting:
   Two important considerations lie at the heart of this
difficult case: the right to retain and be represented by
counsel in immigration proceedings, and the very serious
nature of immigration proceedings — especially asylum
proceedings. This is an area of law where there are few
signposts or settled principles to guide us, but it is
nonetheless clear that the majority and I hold different
views of the constraints imposed upon immigration judges
by the right of one in petitioner’s position to choose to be
represented by counsel. Although I am in agreement with
the majority with respect to its holding that Ponce-Leiva’s
claims were not procedurally barred, I disagree with the
majority’s conclusion that the immigration judge did not
abuse his discretion by disregarding Ponce-Leiva’s right to
have counsel at his asylum merits hearing. I must,
therefore, respectfully dissent.
   At the outset, I think it necessary to call particular
attention to the circumstances surrounding Ponce-Leiva’s
attempted exercise of his right to counsel. An
understanding of the factual setting in this case is crucial
to my view that the immigration judge did not properly
handle the matter before him. At his initial hearing, Ponce-
Leiva was informed by the immigration judge of his right to
obtain counsel at his own expense, and the case was
continued to allow Ponce-Leiva sufficient opportunity to
find representation. Ponce-Leiva immediately exercised his
rights by seeking and securing counsel, with whom he
appeared at his removal eligibility hearing. At that hearing
on November 4, 1997, Ponce-Leiva, through his counsel,
conceded removability and indicated that he would pursue
asylum. The immigration judge set a trial date for the
merits hearing of Wednesday, July 1, 1998, some eight
months later.
  Sometime in the week prior to the scheduled merits
hearing, Ponce-Leiva met with and paid his attorney. At
that meeting, counsel notified Ponce-Leiva that he would be
unable to make the hearing date and would request a
continuance. In a letter dated Thursday, June 25, 1998,
Ponce-Leiva’s counsel requested that the immigration judge
continue the case due to his inability to attend the hearing
                                   15


because he would be in San Diego, California on the
hearing date. On Monday, June 29, the judge received the
letter, and apparently denied the request immediately,
writing on the proposed order of continuance, “Denied. You
accepted this date on Nov. 4, 1997.” There is no evidence,
however, that the denial was communicated to Ponce-Leiva
or his attorney, and the record makes clear that counsel
expected the continuance to be granted.
  At the hearing two days later, Ponce-Leiva appeared
without counsel. The immigration judge announced on the
record that he had received the request for a continuance,
but had decided to deny the request and proceed with the
hearing. The immigration judge did not ask Ponce-Leiva
whether or not he desired to proceed without
representation, but opined that it would be in Ponce-Leiva’s
best interest to move ahead with the asylum eligibility
hearing without Ponce-Leiva’s retained counsel. I include
the immigration judge’s relevant comments, in full, in the
margin.1

1. The immigration judge stated:
      Initially, the question arises as to whether the case should be
    continued. Counsel for the respondent wrote a letter received by the
    Immigration Court on June 29, 1998. The Immigration Court denied
    the request for the continuance. The respondent’s counsel did not
    appear and did not arrange for a substitute.
      On July 1, 1998, the Immigration Court decided that it would be
    in the best interest of the respondent to go forward with this case.
    The respondent testified that he had received no assistance
    whatsoever from his counsel, either in preparation for the asylum
    hearing or advice regarding how he could attempt to obtain lawful
    permanent resident status in this country. To continue the case
    would in effect place this respondent in the hands of his counsel
    again, who has shown no reluctance in collecting fees from the
    respondent although there is no evidence that he’s ever done
    anything in return for those fees. This would be to the financial
    detriment of this young man who works hard for his living in the
    United States.
      It would also serve no useful purpose since the record shows
    clearly that the counsel for the respondent did nothing to help the
    respondent. There is little likelihood that he would do anything at a
                                 16


   The majority is obviously correct that, generally speaking,
it is within an immigration judge’s discretion whether to
grant or deny a continuance. However, it is also the case
that the scope of the judge’s discretion is limited by the
statutory and constitutional rights of the parties. Thus, an
unjustified denial by an immigration judge of an asylum
applicant’s right to have his retained counsel at his side
can surely constitute an abuse of discretion requiring
reversal. See, e.g., Castaneda-Delgado v. INS, 525 F.2d
1295, 1300 (7th Cir. 1975) (holding that the failure to grant
a continuance is an abuse of discretion where it deprives
the alien of the right to counsel); see also Ungar v. Sarafite,
376 U.S. 575, 589 (1964) (recognizing, in criminal context,
that trial judges have discretion over continuances, but
stating nonetheless that “a myopic insistence upon
expeditiousness in the face of a justifiable request for delay
can render the right to defend with counsel an empty
formality”); Romero-Morales v. INS, 25 F.3d 125, 130-31
(2nd Cir. 1994) (citing Ungar in immigration context); Rios-
Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985) (same).
   Ponce-Leiva’s case presents a compelling set of facts for
finding a right to counsel violation. Ponce-Leiva clearly

   future hearing either. It would also not be in the interests of
   taxpayers to continue this case. Despite eight months notice of the
   hearing, and his own personal agreement to attend the case in
   November 1997, counsel for the respondent failed to come at the
   last minute. Every time this young man has come to Court, and he’s
   already been here three times, he has to take off from work. It is an
   aggravating experience for anybody to have attend [sic] such
   hearings.
     The taxpayers have paid for the interpreter and four hours of
   Court time have been set aside to hear this case. It would upset the
   expectations of the Service if these cases cannot be processed on an
   orderly basis. It would also impede the ability of the Court to
   manage its docket if attorneys could do what the counsel for the
   respondent did in this case, specifically, fail to come for hearings
   that have been scheduled long in advance.
     Finally, the Board of Immigration Appeals has held that absence
   of counsel is not necessarily prejudicial err [sic]. Especially in
   circumstances such as those present in this case where the counsel
   has done nothing for the respondent.
                                     17


desired representation at his asylum hearing; he sought
out, retained, and paid counsel to represent him. And,
crucially, Ponce-Leiva never waived his rights. The
immigration judge never asked whether Ponce-Leiva wished
to continue without representation, yet he proceeded with
the hearing absent Ponce-Leiva’s retained counsel and
ultimately found him deportable.
   The majority acknowledges that Ponce-Leiva’s right to
counsel is based on both the Constitution and a federal
statute. Yet it appears to hold that Ponce-Leiva’s right to
counsel is somehow subservient to the immigration judge’s
exercise of discretion over continuance requests, even
where it means that the applicant proceeds unrepresented
against his wishes. The majority even likens the instant
situation to one in which a deportee has been unable to
obtain counsel.2 This line of reasoning appears to render

2. This analogy seems to be ill suited to the realities of these very
different factual settings and is unsupported by the case law the
majority references. The decision in Nazakat v. INS, 981 F.2d 1146 (10th
Cir. 1992), certainly was not, as the majority states, one in which an
immigration judge simply proceeded with a hearing after the petitioner
was unable to secure representation within a reasonable time. To the
contrary, in that case the petitioner was advised of his right to counsel
but waived it, choosing instead to “represent himself and continue with
the hearing.” Id. at 1147. In addition, the court’s statement that “a
petitioner’s inability to obtain counsel . . . does not constitute a violation
of due process” was in the very different context of the petitioner’s
argument that strict application of the applicable regulations necessarily
violates due process where the petitioner appears pro se and lacks a
command of English. Id. at 1148. Similarly, in United States v. Torres-
Sanchez, 68 F.3d 227 (8th Cir. 1995), the petitioner made one
unsuccessful attempt to secure representation but subsequently decided
to proceed without counsel. The court found that the petitioner “was not
deprived of counsel but knowingly waived his statutory right to counsel.”
Id. at 231. In Vides-Vides v. INS, 783 F.2d 1463 (9th Cir. 1986), the
Court of Appeals for the Ninth Circuit held that the immigration judge
had not committed reversible error in proceeding to the merits when the
petitioner had been unable to secure counsel after four months and two
continuances. Id. at 1470. However, it has clearly refused to analogize
that decision to situations like the one presented here. See, e.g.,
Colindres-Aguilar v. INS, 819 F.2d 259, 261 & n.2 (9th Cir. 1987)
(distinguishing Vides-Vides explicitly and holding that where the
petitioner was represented but counsel was absent, the immigration
judge was obligated to inquire whether the petitioner wished to proceed
without counsel). In short, these cases lend little support to the
principles upon which the majority’s opinion is based.
                                    18


the “right” to be represented by retained counsel to be
something less than a true right. But the statute provides
that aliens “shall have the privilege of being represented . . .
by counsel of [their] choosing.” 8 U.S.C. § 1229a(b)(4)(A).3 I
submit, accordingly, that once an asylum seeker has
retained counsel, he is entitled to have his counsel at his
asylum hearing. Proceeding without counsel in such a
circumstance, absent the applicant’s waiver of his right or
evidence of bad faith, is a statutory violation.
   While it is well settled that immigration proceedings are
not criminal in nature, and that the right to counsel at
issue here does not arise from the protections of the Sixth
Amendment, see, e.g., Lu v. Ashcroft, 259 F.3d 127, 131
(2001), we cannot treat immigration proceedings like
everyday civil proceedings, despite their formally civil
character. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038
(1984) (stating that immigration proceedings are civil).
Immigration proceedings occupy a unique place in law both
somewhat distinct from, but sharing features with, both
civil and criminal actions. We must always take care to
remember that, unlike in everyday civil proceedings, “the
liberty of an individual is at stake” in deportation
proceedings, and that:
     [t]hough deportation is not technically a criminal
     proceeding, it visits a great hardship on the individual
     and deprives him of the right to stay and live and work
     in this land of freedom. That deportation is a penalty —
     at times a most serious one — cannot be doubted.
     Meticulous care must be exercised lest the procedure

3. The majority does not assert that the statutory reference to a
“privilege” makes this less than a right, nor could they. The subheading
of the relevant statutory language refers to the “rights” of the alien, 8
U.S.C. § 1229a(b)(4), and the implementing regulations refer to a “right”
and “entitle[ment]” to counsel. 8 C.F.R. §§ 292.1, 292.5. At any rate, the
distinction between “rights” and “privileges” has been long discredited.
See, e.g., Graham v. Richardson, 403 U.S. 365, 374 (1971) (“[T]his Court
now has rejected the concept that constitutional rights turn upon
whether a governmental benefit is characterized as a ‘right’ or as a
‘privilege.’); Palmer v. Merzulli, 868 F.2d 90, 98-99 (3d Cir. 1989) (Cowen,
J., concurring in part and dissenting in part); Skipworth v. United States,
508 F.2d 598, 601 (3d Cir. 1975).
                                    19


     by which he is deprived of that liberty not meet the
     essential standards of fairness.
Bridges v. Wixon, 326 U.S. 135, 154 (1945); see also
McLeod v. Peterson, 283 F.2d 180, 183 (3d Cir. 1960)
(stating that immigration proceedings involve “an especially
critical and fundamental individual right”). The exceptional
life-altering   character    of   immigration    proceedings
underscores the gravity of the right to counsel during such
proceedings, and courts have accordingly emphasized the
distinct and fundamental importance of that right. See,
e.g., Lu, 259 F.3d at 132 (“Congress has long recognized the
importance of counsel in immigration proceedings.”);
Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.
2000) (“Deprivation of the statutory right to counsel
deprives an alien asylum-seeker of the one hope she has to
thread a labyrinth almost as impenetrable as the Internal
Revenue Code.”); Waldron v. INS, 17 F.3d 511, 518 (2d Cir.
1993) (holding that the alien’s right to counsel is a
“fundamental” right); Baires v. INS, 856 F.2d 89, 91 n.2
(9th Cir. 1988) (stating that the right of counsel in
deportation proceedings is “critical” and “fundamental,” and
that it “must be respected in substance as well as in name”
(citing Rios-Berrios, 776 F.2d at 863-64)); Reyes-Palacios v.
INS, 836 F. 2d 1154, 1155 (9th Cir. 1988) (“The importance
of counsel, particularly in asylum cases where the law is
complex and developing, can neither be overstated nor
ignored.”). In short, although not implicated by the Sixth
Amendment’s guarantees, the right is based on principles
of constitutional due process.4

4. The right to counsel in immigration proceedings, while provided by
federal regulation and statute, see, e.g., 8 U.S.C. § 1229a(b)(4)(A); 8
C.F.R. § 240.3, is grounded in constitutional protections. See, e.g.,
Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991) (“[T]he Due Process
clauses and Immigration and Nationality Act afford[ ] an alien the right
to counsel of his own choice at his own expense.”); Orantes-Hernandez
v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (“[A]liens have a due
process right to obtain counsel of their choice at their own expense.”);
see also Saakian v. INS, 252 F.3d 21, 24-25 (1st Cir. 2001) (stating that
the statutory right to counsel is “ ‘an integral part of the procedural due
process to which the alien is entitled’ ” (quoting Batanic v. INS, 12 F.3d
662, 667 (7th Cir. 1993))); Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.
                                   20


  Also distinguishing the immigration context from
everyday civil disputes is the fact that attorneys in
immigration proceedings are held to a constitutionally
imposed minimum level of proficiency. That is, aliens, like
criminal defendants and unlike the parties in normal civil
disputes, may obtain relief from the ineffective assistance of
counsel. See, e.g., Lu, 259 F.3d at 131-32 (stating that due
process guarantees the effective assistance of counsel in
immigration proceedings); see also, e.g., Friedman v.
Arizona, 912 F.2d 328, 333 (9th Cir. 1990) (stating that
there is no right of effective assistance of counsel in a civil
case); Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.
1988) (same). Indeed, Ponce-Leiva makes just such a claim
here.
   The majority’s opinion conflicts with our single most
relevant decision in this area, Chlomos v. INS, 516 F.2d 310
(3d Cir. 1975). In Chlomos, we considered the “extent to
which an administrative agency may curtail a statutorily
conferred right to the assistance of retained counsel.” Id. at
311. The case involved an alien who clearly expressed his
desire to retain representation, but who ultimately went
unrepresented during a deportation hearing in Florida. Id.
at 312-13. Over a period of several weeks, the case was
twice continued in order to allow Chlomos an adequate
opportunity to obtain representation. Id. Although Chlomos
had retained counsel, he appeared unrepresented at his
scheduled hearing. Id. Apparently Chlomos had serious
difficulty in contacting his attorney — at least partly due to
the fact that he was incarcerated — and the agency never
sent notice to counsel, even though it had ready access to
his contact information. Id. at 312-314. Chlomos’s counsel
had requested that the case be transferred back to New
Jersey, the venue in which his case had initially originated,
but the immigration judge simply proceeded with the

2000) (same). See generally Reno v. Flores, 507 U.S. 292, 307 (1993) (“It
is well established that the Fifth Amendment entitled aliens to due
process of law in deportation proceedings.” (citing The Japanese
Immigrant Case, 189 U.S. 86, 100-01 (1903))); Chlomos v. INS, 516 F.2d
310, 313 (3d Cir. 1975) (“An alien subjected to deportation proceedings
is entitled to due process of law.”).
                            21


hearing. Id. Chlomos refused to participate in the
proceedings besides a repeated request to speak with his
lawyer, and was ultimately ordered to be deported. Id. at
313.
   We reversed. We began by reiterating the gravity of the
alien’s constitutionally guaranteed right to due process and
statutorily guaranteed right to counsel during immigration
proceedings. Id. at 313-14. Holding that Chlomos’s rights
had been subject to an “undue curtailment” necessitating
reversal, id. at 311, we stated:
    While two continuances were granted in this case, as a
    practical matter, they were inadequate to make the
    services of his chosen counsel available to petitioner.
    There was no necessity for the hasty hearing by the
    immigration judge, and arrangements could have been
    made which would have been reasonable for both the
    government and petitioner’s counsel. We do not
    condone unnecessary delay or dilatory tactics through
    the ruse of counsel’s unavailability. Efficient
    management of the administrative process can prevent
    such abuse when it appears. That did not appear to be
    a problem here.
Id. at 314.
   Our analysis in Chlomos has never been overruled, or
even questioned, and I submit that it directly controls the
case before us. Just as in Chlomos, the immigration judge
here was not presented with evidence of “unnecessary delay
or dilatory tactics through the ruse of counsel’s
availability.” And, just as in Chlomos, here Ponce-Leiva
clearly sought to have representation during his disposition
hearing but went without representation because of the
refusal of the immigration judge to continue the case
without any compelling justification. The majority
distinguishes Chlomos based on the “decision to hold a
hearing without the petitioner’s attorney being notified.”
Here, however, the record similarly does not reflect that
counsel was advised that his continuance request was
denied. Further, given the emphasis both the immigration
judge and the majority apparently place on the tardiness
and inadequacy of counsel’s request for a continuance, it is
                             22


notable that in Chlomos there was no request for a
continuance — only an informal request for a transfer made
by Chlomos’s counsel to the INS. Nonetheless, in Chlomos
we essentially held that the immigration judge was under
an obligation to continue the case sua sponte in order to
preserve Chlomos’s right to counsel. Similarly, the
immigration judge here was under an obligation to either
obtain a waiver from Ponce-Leiva of his right to counsel, or
continue the case to allow an adequate opportunity for
Ponce-Leiva to secure his counsel’s presence. See Chlomos,
516 F.2d at 313-14.
   The majority’s assessment of this case is also contrary to
the settled views of several of our sister Courts of Appeals,
views that in large part echo our opinion in Chlomos. The
decision by the Court of Appeals for the Seventh Circuit in
Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975),
is one instructive example. At their initial hearing, the
Castanedas     stated   that    they    wished    to   obtain
representation, and the court granted a two-day
continuance for that purpose. Id. at 1297. At the hearing
two days later, the Castanedas again appeared
unrepresented, explaining that their attorney was unable to
come but that they would seek alternative counsel. Id. Their
request for another continuance, however, was denied by
the immigration judge, who proceeded to the merits and
found them deportable. Id.
  Like Ponce-Leiva, the Castanedas urged that “in
summarily denying them a further continuance . . . and in
compelling them to proceed without an attorney,” the
immigration judge’s actions were “arbitrary, capricious, and
an abuse of discretion which improperly and effectively
denied them of their right to be represented by an attorney
of their choice.” Id. at 1298. The INS also took a similar
position to the one taken here, arguing that the denial of
the continuance “was wholly within the discretion of the
immigration judge and [could] not be said to be arbitrary
and capricious or an abuse of discretion.” Id. at 1299.
  The Seventh Circuit reversed, finding the arguments of
the INS “singularly unimpressive.” Id. The court recognized
that “the question of whether or not to grant a continuance
at such an administrative hearing ordinarily rests in the
                                 23


discretion of the officer conducting the hearing (in this
case, the immigration judge),” but reiterated that such
decisions are “subject to reversal if there is a clear showing
of abuse of that discretion.” Id. at 1300. Analyzing the facts
before them, the court then stated:
     In the case at bar, the immigration judge had no
     justification for denying a reasonable further
     continuance to the Castanedas for the purpose of
     obtaining counsel . . . and then compelling them to
     proceed with the hearing without representation. By so
     doing, the immigration judge denied the Castanedas
     procedural due process by depriving them of their right
     to counsel granted by statute and regulation. We hold
     that these actions of the immigration judge were
     arbitrary and capricious and constituted a gross abuse
     of discretion.
Id. (citing Chlomos v. INS, 516 F.2d 310 (3d Cir. 1975)).
  The Seventh Circuit has since reaffirmed the principles
underlying that decision. See, e.g., Snajder v. INS, 29 F.3d
1203 (7th Cir. 1994). Similarly, the Court of Appeals for the
Ninth Circuit has time and again held that the “[f]ailure to
accord an alien” his statutory right to counsel “may, in light
of the entire administrative record, be an abuse of
discretion requiring remand.” Castro-O’Ryan v. INS, 847
F.2d 1307, 1312 (9th Cir. 1988); see also, e.g., Escobar-
Grijalva v. INS, 206 F.3d 1331 (9th Cir. 2000) (holding that
the immigration judge’s denial of petitioner’s right to choose
counsel was an abuse of discretion). Particularly relevant is
a long line of cases, with facts resembling those here,
holding that the decision of an immigration judge to deny
a continuance may violate the alien’s right to counsel and
constitute an abuse of discretion. See, e.g., Reyes-Palacios
v. INS, 836 F.2d 1154 (9th Cir. 1988) (reversing on this
basis); Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir.
1987) (same); Rios-Berrios v. INS, 776 F.2d 859 (9th Cir.
1985) (same); Castro-Nuno v. INS, 577 F.2d 577, 579 (9th
Cir. 1978) (same).
  The majority downplays the significance of this line of
cases, but I submit that they represent ample authority to
support Ponce-Leiva’s claim that his rights were violated.5

5. The majority distinguishes the Castanedas’ situation from Ponce-
Leiva’s by concluding that, here, Ponce-Leiva had an attorney, and the
                                   24


Just as in Castaneda-Delgado, here the immigration judge
had no reasonable justification for denying the continuance
and compelling Ponce-Leiva to proceed without counsel.
Although the record suggests that the immigration judge
was sincere in his belief that proceeding with the asylum
eligibility hearing without counsel was in Ponce-Leiva’s best
interests, his reasons for doing so were entirely subjective,
uninformed by any dialogue with Ponce-Leiva regarding his
wishes. The majority states that the immigration judge
“made a reasonable determination that in light of counsel’s
previous deficient performance with respect to Ponce-Leiva,
his absence at the hearing would have made no difference.”
Yet there is in fact little evidence to support any conclusion
of deficiency on the part of counsel. It is clear from
counsel’s letter to the immigration judge that he assumed
the continuance request would be granted. After offering a
number of alternative hearing dates during the following
weeks, counsel wrote, “I will communicate with the Court
upon my return in order to arrange a suitable trial date.”
Furthermore, there is no evidence of any dilatory behavior
or bad faith on the part of counsel prior to the continuance
request. To the contrary, counsel appeared for Ponce-Leiva
at a previous proceeding, and had made numerous
attempts to contact his client in the months preceding the
asylum merits hearing. Additionally, it is worth reiterating
that there is no evidence regarding why the attorney needed
the continuance other than that he needed to be in San
Diego. For all we know this could have been a court ordered
appearance required at the last minute. To presume some
laxity or deficiency in counsel’s performance, or lack of
respect for the Court, on this basis is not called for. It is
neither our role nor the role of the immigration judge to

attorney “simply decided he was not going to show up.” I submit,
however, that the denial of a continuance in this situation, when Ponce-
Leiva had retained and paid counsel, and counsel had requested a first
continuance by letter — not by “simply” not showing up — is even more
arbitrary than the denial in Castaneda-Delgado. See, e.g., Comm. of Cent.
Am. Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986) (stating that
interference with “an established, on-going attorney-client relationship”
like the one present here is a “key factor” in finding a violation of the
right to counsel).
                                  25


speculate about missing facts, but it should be noted that
it is not at all uncommon for an attorney to need a
continuance for wholly legitimate reasons even where, as
here, the hearing date was set far in advance. Arguably the
date having been set so far in advance provides more of an
excuse, as counsel likely could not have known or predicted
months before what demands he might face at that time.
   Finally, there is no evidence that the continuance request
was made for dilatory reasons; this was the very first listing
of the hearing on the merits and the very first request for
a continuance. Certainly the immigration judge was correct
to take note of the inconvenience and cost to the
government of continuing the hearing, as well as that it
would have been preferable had counsel submitted the
request earlier, but those considerations have little to do
with whether it was “better” for Ponce-Leiva to proceed
without the attorney he retained and paid to represent him,
and cannot seriously be said to overcome Ponce-Leiva’s
right to have counsel on these facts if he desired to do so.
Thus, at least in the circumstances presented here, where
the alien has exercised or clearly intends to exercise his
right to counsel, and there is no evidence of waiver, bad
faith, or dilatory tactics, I cannot agree with the majority
that the immigration judge’s failure to grant a continuance
was not an abuse of discretion.
   Assuming that we would find a deprivation of Ponce-
Leiva’s right to counsel, the government argues that no
relief is warranted because Ponce-Leiva’s asylum claim
lacked merit and, thus, he suffered no prejudice. In
Chlomos we did not explore the need for a showing of
prejudice because it was clear under the facts present there
that prejudice existed. Chlomos, 516 F.2d at 314. Although
we have expressed our “misgivings” with the view that a
showing     of    prejudice   is   necessary   under   these
circumstances, id., it is a question on which we have yet to
rule.6 See id.; see also Chong v. INS, 264 F.3d 378, 390 n.2

6. This is a question on which our sister Courts of Appeals have split.
Compare, e.g., Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993) (requiring
that alien make a showing of prejudice), Farrokhi v. INS, 900 F.2d 697
(4th Cir. 1990) (same), and Michelson v. INS, 897 F.2d 465 (10th Cir.
                                    26


(3d Cir. 2001). And, because the majority holds that Ponce
Leiva’s right to counsel was not infringed, it did not address
this unsettled question.7
  There is persuasive authority for the conclusion that a
claimant such as Ponce-Leiva need not make a showing of
prejudice in order to establish a claim of reversible error
when the immigration judge unjustifiably proceeds without
counsel.8 Even were we to hold that prejudice must be

1990) (same), with Waldron, 17 F.3d at 518 (requiring no showing), and
Castaneda-Delgado, 525 F.2d at 1299 (same). It should also be noted
that, although the majority suggests otherwise, the Court of Appeals for
the Ninth Circuit has yet to determine “whether a showing of prejudice
must be made where the right to counsel has effectively been denied a
respondent in a deportation hearing.” United States v. Ahumada-Aguilar,
295 F.3d 943, 950 (9th Cir. 2002).
7. The majority did, however, note that the immigration judge can take
the “merits” into account in determining whether a continuance should
be granted. But exploring and judging the “merits” absent assistance of,
and explication and advocacy from, counsel, would appear only to
exacerbate the denial of the right. Indeed, it seems somewhat akin to
concluding that the defendant who has confessed doesn’t need a lawyer.
8. The decisions of several of our sister Courts of Appeals support the
proposition that where the violated right is a fundamental one grounded
in federal statutory and constitutional law, such as the right to be
represented by counsel in asylum proceedings, prejudice to the alien
should be presumed. For instance, the Court of Appeals for the Second
Circuit, in Montilla v. INS, 926 F.2d 162 (2d Cir. 1991), held that “an
alien claiming that the INS has failed to adhere to its own regulations
regarding the right to counsel in a deportation hearing is not required to
make a showing of prejudice before he is entitled to relief.” Id. at 169. On
that court’s view, “when a regulation is promulgated to protect a
fundamental right derived from the Constitution or a federal statute, and
the INS fails to adhere to it, the challenged deportation proceeding is
invalid and a remand to the agency is required.” Waldron, 17 F.3d at
518. Similarly, the Court of Appeals for the Seventh Circuit held in
Castaneda-Delgado that “when an alien is denied his right to counsel in
a deportation hearing, the alien is entitled to a new hearing with
counsel.” Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994). Analogizing
the right to counsel in immigration proceedings with the right to counsel
in the criminal context, the court stated that “the right to be represented
by counsel of their choice granted to aliens in deportation proceedings by
                                  27


present, however, the record suggests that reversal may
still be appropriate. The majority seems to dismiss the
possibility that Ponce-Leiva was prejudiced by the absence
of his counsel, but that conclusion cannot be so easily
drawn. Although Ponce-Leiva’s current counsel rightly
conceded at oral argument that there is little on this record
to indicate that Ponce-Leiva has a meritorious claim for
asylum, he also reiterated that all of the primary evidence
in the record was uncounseled. See Colindres-Aguilar, 819
F.2d at 262 (“Retained counsel could have better
marshalled specific facts in presenting petitioner’s case for
asylum and withholding of departure.”); Rios-Berrios, 776
F.2d at 863 (finding that petitioner was prejudiced where
the case could be “more advantageously presented” by
retained counsel). Moreover, it is notable that the
immigration judge never asked Ponce-Leiva on what basis
he believed he was entitled to asylum. The immigration
judge asked all around the issue, but never posed the
question directly. Under such circumstances, it would not
be unreasonable to find that Ponce-Leiva was prejudiced by
the absence of counsel.
  I would grant the petition for review, reverse, and remand
for a new asylum hearing.

A True Copy:
        Teste:

                       Clerk of the United States Court of Appeals
                                   for the Third Circuit




statute and regulations is too important and fundamental a right to be
circumscribed by a harmless error analysis.” Castaneda-Delgado, 525
F.2d at 1300. “The circumstances,” the court concluded, “call for the
prophylactic remedy of vacating the order of deportation and for writing
thereafter on a clean slate.” Id. at 1302; see also Snajder, 29 F.3d at
1207; Yio Fong Cheung v. INS, 418 F.2d 460 (D.C. Cir. 1969).
