and Submitted July 14, 2017 Portland, Oregon
Petition for Review of an Order of the Department of Homeland
Security Agency No. A205-829-885
David Shamloo (argued), Portland, Oregon, for Petitioner.
McKay (argued) and Blair T. O'Connor, Assistant
Directors; Juria L. Jones, Trial Attorney; Office of
Immigration Litigation, Civil Division, United States
Department of Justice Washington, D.C.; for Respondent.
Before: Paul J. Watford and John B. Owens, Circuit Judges,
and Gloria M. Navarro, [*] Chief District Judge.
panel denied Eladio Gomez-Velazco's petitions for review
from the Department of Homeland Security's final
administrative order of removal under 8 U.S.C. §
1228(b), concluding that Gomez-Velazco's due process
claim, based on his contention that he was denied the right
to counsel, failed because he made no showing of prejudice.
argued that DHS officers violated his right to counsel by
pressuring him to concede removability without advice of
counsel in his proceedings under 8 U.S.C. § 1228(b), a
form of summary removal proceedings in which he did not have
a hearing before an immigration judge. The panel concluded
that it had jurisdiction to review Gomez-Velazco's
constitutional claim and assumed, without deciding, that the
officers' conduct violated his right to counsel.
panel held that Gomez-Velazco was required to show prejudice
in order to prevail on his claim, rejecting his contention
that, in the context of a due process violation based on the
denial of the right to counsel, prejudice should be
conclusively presumed and automatic reversal should follow.
The panel concluded that, at least in cases like that of
Gomez-Velazco, where an individual is in administrative
removal proceedings under 8 U.S.C. § 1228(b), does not
waive the 14-day waiting period for judicial review, and is
allowed to consult with counsel before the removal order is
executed, a showing of prejudice is required. The panel
further concluded that Gomez-Velazco failed to establish
Chief District Judge Navarro wrote that she would grant the
petition for review and vacate the final administrative order
of removal. Judge Navarro would first make the distinct
finding that Gomez-Velazco's right to counsel was
violated, and would hold that no prejudice is required to
vacate the order, and that even if prejudice were required,
Gomez-Velazco demonstrated sufficient prejudice.
WATFORD, CIRCUIT JUDGE.
the Immigration and Nationality Act, the Department of
Homeland Security (DHS) can seek to remove non-citizens from
the United States through several different means. The most
formal process involves a hearing in immigration court before
an immigration judge, at which the individual to be removed
can contest the charges against him and request various forms
of relief from removal. See 8 U.S.C. § 1229a.
Today, however, most non-citizens are ordered removed through
streamlined proceedings- expedited removal, administrative
removal, and reinstatement of removal-that do not involve a
hearing before an immigration judge. See Jennifer
Lee Koh, Removal in the Shadows of Immigration
Court, 90 S. Cal. L. Rev. 181, 183-84 (2017); Shoba
Sivaprasad Wadhia, The Rise of Speed Deportation and the
Role of Discretion, 5 Colum. J. Race & L. 1, 2-3
(2014). The proceedings are summary in nature and conducted
by front-line immigration enforcement officers employed by
case involves administrative removal under 8 U.S.C. §
1228(b). A DHS officer ordered Eladio Gomez-Velazco, a native
and citizen of Mexico, removed from the United States.
Gomez-Velazco contends that his due process rights were
violated because he did not have counsel present at the
outset of the removal process. We will assume that a
violation occurred. The question we address is whether
Gomez-Velazco must show that he was prejudiced by the
violation. We conclude that he must and that he has not done
so. We therefore deny his petitions for review.
discussing the facts of Gomez-Velazco's case, it will
help to begin with a brief overview of how administrative
removal works. Section 1228(b) authorizes DHS to order a
limited class of non-citizens removed from the country
without affording them a hearing before an immigration judge.
To invoke § 1228(b), DHS must establish that the
individual to be removed: (1) is not a citizen of the United
States; (2) has not been lawfully admitted for permanent
residence; and (3) has been convicted of an aggravated
felony. 8 U.S.C. § 1228(b)(1), (2); 8 C.F.R. §
238.1(b)(1). Proceedings under § 1228(b) are summary in
nature because if DHS establishes those three predicates, the
individual is conclusively presumed removable and
categorically ineligible for most forms of discretionary
relief from removal. 8 U.S.C. § 1228(b)(5), (c); see
United States v. Arrieta, 224 F.3d 1076, 1080-81 (9th
commences administrative removal proceedings by serving you
with a "Notice of Intent to Issue a Final Administrative
Removal Order." 8 C.F.R. § 238.1(b)(2). The notice
must allege each of the three predicates necessary to trigger
eligibility for administrative removal. § 238.1(b)(1),
(b)(2)(i). The notice must also advise you of certain rights,
among them the right to be represented by counsel of your
choosing at no expense to the government, the right to rebut
the charges against you, and the right to request withholding
of removal if you fear persecution or torture in the country
to which you would be removed. § 238.1(b)(2)(i).
service of the notice, you have ten days to file a response.
§ 238.1(c)(1). In the response, you can (among other
things) attempt to rebut the charges, request an opportunity
to review the government's evidence, and request
withholding of removal. Alternatively, you can waive the
right to pursue any of these options and concede that you are
removable as charged.
do not file a response, or if you concede that you are
removable as charged, a DHS official known as the deciding
officer will issue a "Final Administrative Removal
Order, " which for ease of reference we will simply call
a removal order. § 238.1(d)(1). To allow an opportunity
for judicial review, the order may not be executed for 14
days unless ...