Immigration Law

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Noncitizens subject to expedited removal have a statutory right to a lawyer, at their own expense, in proceedings before immigration judges to determine whether they have a reasonable fear of persecution in their home country, a federal appeals court has ruled.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled Tuesday for immigrant Baldemar Zuniga, who contended he faced torture or persecution from the Mexican Knights Templar drug cartel if he returned to Mexico. Law360 and Courthouse News Service have coverage of the per curiam opinion.

Zuniga had entered the United States from Mexico illegally as a child. He testified against two members of the drug cartel when he was tried for participating in a conspiracy to manufacture and distribute drugs and launder money. Zuniga was convicted in 2012. The drug trafficking conviction was an aggravated felony that made him subject to expedited removal.

Zuniga claimed an immigration judge had violated his right to lawyer by failing to obtain a knowing and voluntary waiver of that right. The government argued that there is no such right in reasonable fear proceedings.

The government had pointed to a 1999 memo from the Executive Office for Immigration Review that interpreted federal law governing reasonable fear proceedings to give immigration judges discretion to decide whether a noncitizen can be represented by a lawyer.

The 9th Circuit sided with Zuniga, saying the agency’s interpretation conflicts with the plain language of the statute governing expedited removal proceedings for noncitizens convicted of aggravated felonies.

Nothing in the language of the law “indicates that the right to counsel is conditional or limited only to certain types of proceedings authorized under that statute, expedited or otherwise,” the court said.

Zuniga had appeared before the immigration judge via video from a California immigration detention center. The 9th Circuit said Zuniga did not voluntarily waive his right to a lawyer in this exchange:

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?


JUDGE: So, sir, do you have a lawyer?

ZUNIGA: I do not.

The 9th Circuit said Zuniga is entitled to a new hearing before an immigration judge “at which his right to counsel is honored.”