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Gomez-Velazco v. Sessions

United States Court of Appeals, Ninth Circuit

January 10, 2018

Eladio Gomez-Velazco, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted July 14, 2017 Portland, Oregon

         On Petition for Review of an Order of the Department of Homeland Security Agency No. A205-829-885

          Navid David Shamloo (argued), Portland, Oregon, for Petitioner.

          Leslie 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.

         SUMMARY[**]

         Immigration

         The 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.

         Gomez-Velazco 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.

         The 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 prejudice.

         Dissenting, 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.

          OPINION

          WATFORD, CIRCUIT JUDGE.

         Under 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 DHS.

         This 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.

         I

         Before 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 Cir. 2000).

         DHS 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).

         Upon 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.

         If you 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 ...


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