FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELADIO GOMEZ-VELAZCO,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

Nos. 14-71747

14-73303

Agency No.

A205-829-885

OPINION

On Petition for Review of an Order of the

Department of Homeland Security

Argued and Submitted July 14, 2017

Portland, Oregon

Filed January 10, 2018

Before: Paul J. Watford and John B. Owens, Circuit

Judges, and Gloria M. Navarro,*

 Chief District Judge.

Opinion by Judge Watford;

Dissent by Judge Navarro

* The Honorable Gloria M. Navarro, Chief United States District

Judge for the District of Nevada, sitting by designation.
2 GOMEZ-VELAZCO V. SESSIONS

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 GomezVelazco’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

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GOMEZ-VELAZCO V. SESSIONS 3

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.

COUNSEL

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.
4 GOMEZ-VELAZCO V. SESSIONS

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.
GOMEZ-VELAZCO V. SESSIONS 5

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

conclusivelypresumed removable and categoricallyineligible

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
6 GOMEZ-VELAZCO V. SESSIONS

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 you waive that waiting period in writing. 8 U.S.C.

§ 1228(b)(3); 8 C.F.R. § 238.1(f)(1).

If the deciding officer issues a removal order and you fear

persecution or torture in the country to which you would be

removed, the deciding officer must refer the case to an

asylum officer to conduct a reasonable fear interview. 

8 C.F.R. § 238.1(f)(3). If the asylum officer determines that

your fear of persecution or torture appears reasonable, the

case is transferred to an immigration judge for a hearing to

determine whether you are entitled to withholding of

removal. § 208.31(e). If the asylum officer determines that

you do not have a reasonable fear of persecution or torture,

you can seek review of that determination by an immigration

judge. § 208.31(g). But if the adverse reasonable fear

determination is ultimately upheld, the removal order may

then be executed.

With that background in mind, we can turn to the facts of

this case. DHS officers determined that Gomez-Velazco,

then confined in county jail, appeared to be eligible for

removal under § 1228(b). Shortly after Gomez-Velazco was
GOMEZ-VELAZCO V. SESSIONS 7

released, DHS officers took him into custody pursuant to a

warrant issued by the agency. The officers served him with

a Notice of Intent to Issue a Final Administrative Removal

Order. The notice alleged that Gomez-Velazco is not a

citizen of the United States; that he has not been lawfully

admitted for permanent residence; and that he has been

convicted of an aggravated felony, namely, second-degree

rape under Oregon law. The notice advised Gomez-Velazco

of his right to contest the charges and his right to be

represented by counsel of his choosing at no expense to the

government.

The officers attempted to take a formal sworn statement

from Gomez-Velazco, but he refused to give one without his

attorney present. The DHS officers knew Gomez-Velazco

had retained an attorney because two months earlier the

attorney had notified them of Gomez-Velazco’s pending

application for a U-visa. See 8 U.S.C. § 1101(a)(15)(U). 

Although Gomez-Velazco refused to provide a sworn

statement, he nonetheless admitted the allegations in the

notice and conceded that he was removable as charged. He

did not claim fear of persecution or torture in Mexico, but he

declined to waive the 14-day waiting period for execution of

the removal order. He made each of these decisions without

the benefit of counsel’s advice because his attorney was not

present.

Immediately after Gomez-Velazco conceded that he was

removable as charged, and before he had a chance to consult

with his attorney, the deciding officer issued a removal order

under § 1228(b). Because Gomez-Velazco had not waived

the 14-day waiting period, he was not removed from the

country, and before the waiting period expired his attorney

filed a petition for review in this court challenging the
8 GOMEZ-VELAZCO V. SESSIONS

validity of the removal order. We issued a stay of removal

pending our resolution of the petition, which remains in

effect.

II

Gomez-Velazco argues that the DHS officers violated his

right to counsel by pressuring him into conceding

removability without the advice of counsel, even after he told

them that he did not want to give a sworn statement until he

could speak with his attorney. We have jurisdiction to review

this constitutional claim under 8 U.S.C. § 1252(a)(2)(D). As

mentioned at the outset, we will assume without deciding that

the officers’ conduct violated Gomez-Velazco’s right to

counsel.

The question becomes whether Gomez-Velazco must

show prejudice in order to prevail. The answer to that

question requires a point of clarification as to the source of

the right at issue. The Sixth Amendment does not afford a

right to the assistance of counsel in immigration proceedings. 

Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th Cir.

2007). The right to be represented by counsel at one’s own

expense is protected as an incident of the right to a fair

hearing under the Due Process Clause of the Fifth

Amendment. Biwot v. Gonzales, 403 F.3d 1094, 1098–99

(9th Cir. 2005); see also 8 U.S.C. § 1228(b)(4)(B) (“the alien

shall have the privilege of being represented (at no expense

to the government) by such counsel, authorized to practice in

such proceedings, as the alien shall choose”). Thus, an

individual who asserts that he was denied the right to counsel

in immigration proceedings is asserting that his right to due

process was violated.
GOMEZ-VELAZCO V. SESSIONS 9

As a general rule, an individual may obtain relief for a

due process violation only if he shows that the violation

caused him prejudice, meaning the violation potentially

affected the outcome of the immigration proceeding. 

Hernandez-Gil, 476 F.3d at 808; Biwot, 403 F.3d at 1100. 

That rule rests on the view that the results of a proceeding

should not be overturned if the outcome would have been the

same even without the violation. Gomez-Velazco contends

that the rule should be different when a due process violation

is predicated on denial of the right to counsel. In that context,

he urges, prejudice should be conclusively presumed and

automatic reversal should follow.

There is some support for the rule Gomez-Velazco

advocates. In cases involving removal proceedings before an

immigration judge, we have held that requiring an individual

to proceed with the merits hearing without the assistance of

counsel violates due process, absent a valid waiver of the

right to counsel. See, e.g., Hernandez-Gil, 476 F.3d at

806–08; Tawadrus v. Ashcroft, 364 F.3d 1099, 1103–05 (9th

Cir. 2004). And in Montes-Lopez v. Holder, 694 F.3d 1085

(9th Cir. 2012), we carved out an exception to the general

rule requiring a showing of prejudice. There we held that an

individual who is wrongly denied the assistance of counsel at

the merits hearing need not show prejudice in order to

prevail. Id. at 1090. Prejudice in that context is conclusively

presumed and automatic reversal is required.

The rule we adopted in Montes-Lopez is based in part on

the practical difficulties one would face in trying to prove that

the outcome of the merits hearing would have been different

had counsel been able to assist. Id. at 1092. In most cases it

would be next to impossible to determine what the

evidentiary record would have looked like had counsel been
10 GOMEZ-VELAZCO V. SESSIONS

present. The same practical difficulties explain why, in the

Sixth Amendment context, a showing of prejudice is not

required when the defendant is denied counsel (or wrongly

denied counsel of choice) throughout the entire criminal

proceeding. See United States v. Gonzalez-Lopez, 548 U.S.

140, 148–50 (2006). In that context, too, it would usually be

impossible to determine what different decisions counsel (or

counsel of choice) might have made, and what impact those

decisions might have had on the outcome of the proceeding. 

Id. at 150–51. Given “the difficulty of assessing the effect of

the error,” id. at 149 n.4, automatic reversal is required.

Even in the Sixth Amendment context, though, not all

violations of the right to counsel are treated as structural

errors mandating automatic reversal. If the right to counsel

has been wrongly denied only at a discrete stage of the

proceeding, and an assessment of the error’s effect can

readily be made, then prejudice must be found to warrant

reversal. For example, the Supreme Court has held that

denial of counsel at the preliminary hearing stage is subject

to harmless error review rather than an automatic reversal

rule. Coleman v. Alabama, 399 U.S. 1, 10–11 (1970). And

when the government obtains evidence at certain pre-trial

stages of the case in violation of the right to counsel,

admission of that evidence at trial is also subject to harmless

error review. See, e.g., Satterwhite v. Texas, 486 U.S. 249,

258 (1988) (denial of right to counsel at court-ordered

psychiatric examination); Milton v. Wainwright, 407 U.S.

371, 372 (1972) (denial of right to counsel during postindictment interactions with undercover police officer);

United States v. Wade, 388 U.S. 218, 242 (1967) (denial of

right to counsel at pre-trial line-up).
GOMEZ-VELAZCO V. SESSIONS 11

In our view, the rationale supporting the automatic

reversal rule does not extend to the circumstances we

confront in this case. Gomez-Velazco was not denied the

assistance of counsel throughout the entirety of the

administrative removal process, which commences with

service of the Notice of Intent to Issue a Final Administrative

Removal Order and ends with execution of the order. He

lacked counsel at one discrete stage of the process—the point

of his initial interaction with DHS officers. That was, to be

sure, an important stage because he had to decide whether to

contest the charges against him and whether to request

withholding of removal, decisions that turn on potentially

complicated factual and legal issues which virtually all lay

people need the assistance of counsel to analyze intelligently. 

See Koh, supra, 90 S. Cal. L. Rev. at 211–13.

Nonetheless, we think the effect of counsel’s absence

during the initial interaction with DHS officers can readily be

assessed, at least in cases like this one, in which the

individual does not waive the 14-day waiting period and is

allowed to consult with counsel before the removal order is

executed. In that scenario, we are not forced to speculate

about the different decisions counsel might have made had

she been present, for counsel can act on those decisions after

issuance of the removal order and remedy any damage done

by her client’s un-counseled admissions or waivers.

Take the two most common admissions or waivers that

occur. If the individual admits the allegations in the notice

and concedes removability, as Gomez-Velazco did here, the

lawyer can still file a response asserting any valid grounds for

contesting removability within the ten-day period permitted

under 8 C.F.R. § 238.1(c)(1). We doubt DHS would refuse

to consider the response on the theory that the individual’s
12 GOMEZ-VELAZCO V. SESSIONS

earlier un-counseled concession of removability is somehow

irrevocable. But even if the agency took that dubious

position, a reviewing court would be able to assess whether

the grounds asserted raise a plausible basis for contesting

removability, and thus could determine whether counsel’s

absence during the initial interaction with DHS officers

caused prejudice. And if the individual waives the right to

request withholding of removal despite fearing persecution or

torture in the country to which he would be removed, the

lawyer can still request a reasonable fear determination, since

that does not occur until after issuance of the removal order

in any event. § 238.1(f)(3).

In sum, we see no reason to conclusively presume

prejudice when an individual is denied the right to counsel

during his initial interaction with DHS officers, provided the

individual is able to consult with counsel before the removal

order is executed. In that scenario, we can determine what

the evidentiary record would have looked like had the

violation not occurred, unlike the scenario in which counsel

is precluded from participating in the merits hearing before an

immigration judge. And we can thus assess what prejudicial

effect, if any, counsel’s absence had on the outcome of the

proceedings.

Having concluded that Gomez-Velazco must show

prejudice to prevail, we turn to whether he has made that

showing here. As just noted, he might have been able to

show prejudice had he attempted to contest the facts

rendering him removable yet been foreclosed from doing so

by virtue of his earlier un-counseled admissions. But he has

never attempted to contest the charges against him, even after

having an opportunity to consult with counsel, so he cannot

contend that his un-counseled admissions cost him the chance
GOMEZ-VELAZCO V. SESSIONS 13

to raise plausible grounds for contesting removal. Nor can he

claim prejudice by virtue of his un-counseled waiver of the

right to request withholding of removal, since he was

ultimately given a reasonable fear interview and allowed to

make the case that he should be granted withholding of

removal.

Gomez-Velazco asserts only one other theory of

prejudice, which relates to the recent denial of his U-visa

application. He contends that if counsel had been present

during his initial interaction with DHS officers, his attorney

could have requested a stay of the proceedings and thereby

prevented the removal order from being issued in the first

place. He argues that he suffered prejudice because the very

issuance of the removal order negatively influenced the

agency’s consideration of his U-visa application and

contributed to the decision to deny it.

There are at least two flaws in this argument. The first is

that Gomez-Velazco provides nothing to support his assertion

that the mere issuance of a removal order negatively affects

the agency’s consideration of a U-visa application. We have

found nothing in DHS regulations or policy guidance to

suggest that is the case, and we know that issuance of a

removal order does not preclude an individual from obtaining

a U-visa. The agency’s regulations specifically contemplate

the granting of a U-visa application even after issuance of a

removal order. They provide that upon approval of the

application the removal order “will be deemed canceled by

operation of law” as of the date of approval. 8 C.F.R.

§ 214.14(c)(5)(i); see United States v. Cisneros-Rodriguez,

813 F.3d 748, 761 (9th Cir. 2015).
14 GOMEZ-VELAZCO V. SESSIONS

The second flaw in Gomez-Velazco’s argument is that the

agency’s written explanation for why it denied his U-visa

application does not rely on issuance of the removal order as

a negative factor. To be eligible for a U-visa, GomezVelazco needed to obtain a waiver of inadmissibility, and to

obtain that he needed to persuade the agency that “it is in the

public or national interest” to allow him to remain in the

United States. 8 C.F.R. § 212.17(b)(1). The agency

explained that it declined to grant a waiver of inadmissibility

because his criminal record indicated that he posed a risk to

public safety. In support of that conclusion, the agency cited

Gomez-Velazco’s conviction for second-degree rape, an

especially serious offense because the victim was 13 years

old. The agency also cited his multiple violations of the

probationary conditions imposed for that conviction and his

multiple arrests for other offenses. Given this record of

criminal wrongdoing, the agency could not conclude that a

favorable exercise of its discretion was warranted. That

outcome is not surprising, as the agency’s regulations provide

that it will grant a waiver of inadmissibility to applicants

convicted of violent or dangerous crimes only in

“extraordinary circumstances.” § 212.17(b)(2). Nothing in

the agency’s decision turned on the fact that a removal order

had been issued.

* * *

In the circumstances of this case, Gomez-Velazco was

required to show prejudice in order to prevail on his due

process claim. Although he may have been improperly

denied the right to counsel during his initial interaction with
GOMEZ-VELAZCO V. SESSIONS 15

DHS officers, he has made no showing that the denial of that

right caused him any prejudice.

PETITIONS FOR REVIEW DENIED.

NAVARRO, Chief District Judge, dissenting:

I would grant the Petition for Review and vacate the Final

Administrative Removal Order (“FARO”) issued on June 12,

2014.

I would first make the distinct finding—as opposed to the

majority’s assumption—that Gomez-Velazco’s right to

counsel was violated. “Although there is no Sixth

Amendment right to counsel in an immigration hearing,

Congress has recognized it among the rights stemming from

the Fifth Amendment guarantee of due process that adhere to

individuals that are the subject of removal proceedings.”

Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004)

(citing Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir.

1985)). While “[t]he right to counsel in immigration

proceedings is rooted in the Due Process Clause,” Biwot v.

Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005), the right to

counsel in expedited removal proceedings is also secured by

statute. 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien shall have the

privilege of being represented (at no expense to the

government) by such counsel, authorized to practice in such

proceedings, as the alien shall choose.”); 8 C.F.R.

§ 238.1(b)(2)(i) (“[The Notice of Intent] shall advise that the

alien: has the privilege of being represented, at no expense to

the government, by counsel of the alien’s choosing, as long

as counsel is authorized to practice in removal proceedings”);
16 GOMEZ-VELAZCO V. SESSIONS

see also 8 C.F.R. § 238.1(b)(2)(iv) (requiring ICE to provide

aliens facing expedited removal “with a list of available free

legal services programs”).

Moreover, expedited removal proceedings under § 1228

require “conformitywith section 1229a” and the “privilege of

being represented” is further codified in that section as well.

See 8 U.S.C. § 1229a(b)(4)(A). This right to be represented

at no cost to the government is also listed on the “Notice of

Intent to Issue a FARO” under “Your Rights and

Responsibilities.” If the right to counsel under § 1228 is only

for the noncitizen to be advised of the right to have counsel,

with no practical effect, then it would be no right to counsel

at all. See Rios-Berrios, 776 F.2d at 863 (explaining that the

right to counsel must be respected in substance as well as in

name).

Indeed, this Circuit has consistently emphasized the

critical role of counsel in deportation proceedings. See, e.g.,

Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988)

(“The importance of counsel . . . can neither be

overemphasized nor ignored.”); United States v. Cerda-Pena,

799 F.2d 1374, 1377 n.3 (9th Cir. 1986) (referring to “an

outright refusal to allow an alien the opportunity to obtain

representation” as “an egregious violation of due process”). 

We have characterized the alien’s right to counsel of choice

as “fundamental” and have warned the agency not to treat it

casually. Rios-Berrios, 776 F.2d at 863–64.

Here, the record clearly demonstrates that GomezVelazco asserted that he had counsel and wanted his counsel

present. First, in Form I-213, ICE Officer Stewart explains

that during the FARO proceedings, Gomez-Velazco “was

unwilling to provide a sworn statement without an attorney
GOMEZ-VELAZCO V. SESSIONS 17

present.” Second, on the “Record of Sworn Statement” dated

June 12, 2014, the first question states, “Are you willing to

answer my questions?” to which Gomez-Velazco answered:

“I prefer not to until Italk to my attorney.” DHS nevertheless

proceeded with the expedited removal proceedings without

first affording Gomez-Velazco the opportunity to notify and

speak with his counsel as he requested. In doing so, DHS

directly disregarded Gomez-Velazco’s ability to exercise this

fundamental right.

Having found that Gomez-Velazco’s right to counsel was

violated, I would then find that under Montes-Lopez v.

Holder, 694 F.3d 1085 (9th Cir. 2012), no prejudice is

required to vacate the FARO. The Montes-Lopez court held

“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.” 694 F.3d at 1093–94. In support,

the court stated that “the absence of counsel can change an

alien’s strategic decisions, prevent him or her from making

potentially-meritorious legal arguments, and limit the

evidence the alien is able to include in the record.” Id. at

1092.

The majority here distinguishes Montes-Lopez by a

distinction without a difference. First, the majority regards

Montes-Lopez as “an exception to the general rule requiring

a showing of prejudice;” however, prior to Montes-Lopez,

there was no general rule that required a showing of

prejudice—a fact that Montes-Lopez, Hernandez-Gil, and

Biwot, the cases the majority relies so heavily on, all

specifically identify. Id. at 1090 (“We have never decided,

however, whether prejudice is an element of a claim that

counsel has been denied in an immigration proceeding.”);
18 GOMEZ-VELAZCO V. SESSIONS

Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir.

2007) (“Because we determine that Hernandez-Gil has shown

that he was prejudiced by the denial of his statutory right to

counsel ‘we again leave unanswered the question whether a

petitioner must show prejudice when he has been denied the

right to counsel in removal proceedings.’”) (citing Biwot,

403 F.3d at 1100).

Second, the right to counsel is substantively the same

under both the § 1228 expedited removal proceeding before

a DHS deciding officer, as used here, and the § 1229

proceeding before the immigration judge, as in MontesLopez.

1 Compare § 1228(b)(4)(B) with § 1229(b)(1); see also

United States v. Peralta-Sanchez, 847 F.3d 1124, 1130 (9th

Cir. 2017) (emphasizing the similarity of §§ 1228 and 1229

in the right to counsel context). Montes-Lopez’s holding

refers to “an immigration proceeding” without differentiating

between a proceeding before an immigration judge and a

DHS deciding officer. Montes-Lopez, 694 F.3d at 1093–94.

Notably, the Montes-Lopez court purposefully

distinguished pure immigration proceedings from collateral

attacks on a removal order in a § 1326 illegal reentry criminal

case, the latter of which requires prejudice specifically

because of “the limitations on criminal defendants’ right to

collaterally attack the result of a prior proceeding.” MontesLopez, 694 F.3d at 1093; see also Villa-Anguiano v. Holder,

727 F.3d 873, 876 n.1 (9th Cir. 2013) (contrasting the § 1326

illegal reentry collateral attack standard under Reyes-Bonilla

with the immigration proceedings petition forreview standard

1 The Government decides under which process to pursue deportation

by issuing either a Notice of Intent to Issue a FARO under § 1228 or

Notice to Appear under § 1229.
GOMEZ-VELAZCO V. SESSIONS 19

under Montes-Lopez). The Montes-Lopez court compared the

collateral attack versus petition for review in the immigration

context to the difference between a criminal collateral attack

and a direct appeal: “A criminal defendant who alleges

ineffective assistance of counsel must generally show

prejudice, Smith v. Mahoney, 611 F.3d 978, 1001 (9th Cir.

2010), but a defendant who has been denied counsel need not.

Campbell v. Rice, 408 F.3d 1166, 1176 (9th Cir. 2005).”

694 F.3d at 1092.

Deprivation of counsel is per se prejudicial. See CerdaPena, 799 F.2d at 1377 n.3 (“[A]n outright refusal to allow an

alien the opportunity to obtain representation may be such an

egregious violation of due process so as not to require any

further showing of prejudice”); Garcia-Guzman v. Reno,

65 F. Supp. 2d 1077, 1087 (N.D. Cal. 1999) (explaining that

“Cerda-Pena therefore suggests that if the violation of the

right to counsel is sufficiently egregious—i.e., a clear denial

of representation or outright refusal to permit an alien to

obtain representation—prejudice needn’t be shown.”).

The majority attempts to downplay the inherent prejudice

of this situation by comparing it to discrete stages of a

criminal proceeding, such as a preliminary hearing, a courtordered psychiatric examination, post-indictment interactions

with undercover police officers, and pre-trial line-ups. 

However, none of these situations are comparable to the

instant case. Here, Gomez-Velazco was in custody by DHS

when he asked for an attorney—a situation that, in a nonimmigration case, would normally mandate an attorney as

soon as a defendant requests one.

Furthermore, in drawing comparisons to these Sixth

Amendment situations, the majorityattempts to illustrate how
20 GOMEZ-VELAZCO V. SESSIONS

the standard in those cases are only “subject to harmless error

review rather than an automatic reversal rule,” and the

majority concludes that because this is a similar discrete

stage, prejudice is required rather than presumed. However,

in arguing this, the majority once again completely disregards

Montes-Lopez. There, the court held that “[w]hen this court

concludes that an agency has not correctly applied controlling

law, it must typically remand, even if we think the error

was likely harmless.” Montes-Lopez, 694 F.3d at 1092

(citing INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002)). 

Importantly, Montes-Lopez adopts the reasoning of the

Second Circuit, which “declined to add a prejudice

requirement to this rule because [the court] reasoned that

automatic reversal upon violation of such a regulation would

encourage agency compliance with its own rules and serve

the interests of judicial economy.” Id. at 1091 (citing Montilla

v. INS, 926 F.2d 162, 169 (2d Cir. 1991)). We must

recognize that in mandating automatic reversal, not only will

we continue to protect this right to counsel, but also we will

better hold these agencies accountable in their actions and

conduct by enforcing their own regulations more strictly upon

them. In holding that this situation is akin to a harmless error

review, the majority disregards Montes-Lopez’s holding and

downplays the right to counsel.

The majority attempts to distinguish Montes-Lopez by

stating that it is different than the instant case because it is

“based in part on the practical difficulties one would face in

trying to prove that the outcome of the merits hearing would

have been different had counsel been able to assist.” The

majority reasons that Montes-Lopez differs because “GomezVelazco was not denied the assistance of counsel throughout

the entirety of the administrative removal process” but that he

“lacked counsel at one discrete stage of the process.”
GOMEZ-VELAZCO V. SESSIONS 21

To carve out such a nuanced distinction undermines the

fundamental nature of the right to counsel. See, e.g.,

Hernandez-Gil, 476 F.3d at 806 (“The high stakes of a

removal proceeding and the maze of immigration rules and

regulations make evident the necessity of the right to

counsel.”); Montes-Lopez, 694 F.3d at 1091 (“No showing of

prejudice is required, however, when a rule is ‘intended

primarily to confer important procedural benefits upon

indiv[i]duals’’ or ‘when alleged regulatory violations

implicate fundamental statutory or constitutional rights.’”)

(quoting Leslie v. Attorney Gen., 611 F.3d 171 (3d

Cir.2010)). Likewise, to permit an agency to continue to

ignore its own regulations undermines the fundamental nature

of the right to counsel. Finally, to ignore established

precedent in favor of the majority’s new exception

undermines the fundamental nature of the right to counsel. 

Accordingly, I would vacate the FARO because GomezVelazco established a right to counsel due process violation

and therefore need not show prejudice.

Even if prejudice were required, however, it should be

assessed under the “plausibility” standard set forth by United

States v. Cisneros-Rodriguez, 813 F.3d 748, 760 (9th Cir.

2015): “[W]hether the defendant had identified a form of

relief it was plausible he would have obtained absent the due

process violation.” In Cisneros-Rodriguez, the defendant

argued that “had she obtained counsel [during her predicate

§ 1228 proceeding], it is plausible that she would have

applied for and obtained a U-visa.” Id. at 753. The court

agreed that because she demonstrated prima facie U-Visa

eligibility, it was plausible that she would have obtained a UVisa had she applied for one at the time of her original § 1228

proceeding. Id. at 761. This finding was made despite the
22 GOMEZ-VELAZCO V. SESSIONS

fact that the defendant later applied for a U-Visa and was

rejected. Id. at 762.

Here, the record demonstrates that Officer Stewart—the

arresting ICE officer who provided the evidence to Deciding

Officer Elizabeth C. Godfrey for the issuance of the

FARO—knew that Gomez-Velazco was represented by

counsel and that Gomez-Velazco had a pending U-Visa

application. When Officer Stewart nevertheless chose to

arrest Gomez-Velazco and continue with the § 1228

proceedingwithout allowing him to consult with his attorney,

Gomez-Velazco was prejudiced more than the defendant in

Cisneros-Rodriguez because he had a plausible and pending

U-Visa application. As such, I cannot agree with the majority

that Gomez-Velazco failed to demonstrate sufficient

prejudice under Cisneros-Rodriguez.

Ultimately, even without a finding of prejudice, the

majority’s decision to deny Gomez-Velazco’s petition for

review dilutes the fundamental right to counsel and

completely ignores indistinguishable precedent. See

Hernandez v. Holder, 545 Fed. Appx. 710, 713 (9th Cir.

2013) (Ikuta, J., concurring) (unpublished opinion) (stating

disagreement with Montes-Lopez while still acknowledging

that the Ninth Circuit is bound by its decision). Accordingly,

I must respectfully dissent.