F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E L A D I O G O M E Z -V E L

AZ C O , P etitioner
,

v

.

J E F F E R S O N B

. S E S S I O N S I I I , Attorney General, Respondent. Nos. 14-71747 14-73303

Ag ency No. A205-829-885

OPI NI ON

O n Petition for Review of an Order of the Department of Homeland Security

Arg ued and Submitted J uly 14, 2017 Portland, Oreg on

F iled J anuary

10, 2018

B efore: Paul J . W a tford and J ohn B . Owens, Circuit J udg es, and Gloria M. Navarro, * Chief District J u d g e

.

O pinion by

J udg e W atford; Dissent by J udg e Navarro

* T h e Ho n o r a b l e G lo ria M. N av arro , Ch ief Un ited States District J u d g e f o r th e District o f

Nev ad a, sittin g b y

d esig n atio n

.G O M E Z

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SUMMARY * *

Im m igration

The panel denied Eladio Gomez -Velaz co’s petitions f o r review from the Department of Homeland Secur i t y ’ s final administrative order of r emoval un d e r 8 U.S.C. § 1228(b), concluding that Gomez -Velaz co’s due p rocess claim, based

o n h i s contention that he was denied the rig ht to couns e l
, failed because he made no showing of prejudice.

Gom e z -Velaz c o argued that DHS officers violated his rig ht to counsel by pressuring him to concede remov ability without advice of counsel in his proceeding s under 8 U .S.C. § 1228(b), a form of summary removal proceeding s in which he did not have a hearing before an immig ration judg e. The panel concluded that it had jurisdiction to review G omez

Velaz co’s c onstitutional claim and assumed, without deciding
, that the o f

ficers’ c onduct violated his rig ht to counsel.

The panel held that G omez -Velaz co was required to show prejudice in order to prevail o n h is claim, reject i n g h i s contention that, in the contex t of a due p r ocess violation based on the d e n i a l of the rig ht to counsel, prejudice should be conclusively presumed a n d automatic reversal should follow. The panel concluded that, a t least in cases like that o f Gomez -Velaz co, where an individual is in adm i nistrative removal proceeding s und e r 8 U.S.C. § 1228(b), does not waive the 14- day waiting period for judicial r eview, and is

* * T h is su m m ary co n s titu tes n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.G O M E Z

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allowed to consult with counsel befor e the removal order is

ex e c uted, a showing of prejudice is required

. The panel further concluded that Gomez

- Velaz co failed to establish prejudice.

Dissenting
, Chief D istrict J udg e N a varro wrote that she

wou l d grant the petition for review and vacate the final administrative o r d er of removal. J udg e Navarro would first make the distinct finding that Gomez -Velaz co’s r i gh t to counsel was violated, and would hold that no prejudice is required to vacate the o rder, and that even if pr e judice were required, Gomez -Velaz co demonstrated sufficient prejudice.

COUNSEL

Navi d David Shamloo (arg ued), Portland, Oreg on, for Petitioner.

L eslie M c Ka y (arg

ued) and B lair T

. O’Connor, Assistant Directors; J uria L

. J ones, Trial Attorne y ; Office o f I mmig r a tion L itig ation, Civil Divis i o n , United States Department of J ustice W ashing ton, D.C.; for Respondent.G O M E Z

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OP INION

W A TF ORD, Circuit J udg e:

Under the I mmig ration a nd N ationality Act, the Department o f Homeland Security (DHS) can seek to remove non-citiz ens from the United States throug h several different

means. Th e most formal process involves a hearing in immig ration court before an immig ration judg e, a t which the individual to be removed can contest the charg es ag ainst him and r equest various forms of relief from remo v a l

. See 8 U.S.C. § 1229a. T o d ay , however, most n on-citiz ens a re order e d removed throug h streamlined proceeding s—

ex p edited re m o v a l
, a d

m i n i s t r a t i v e r emoval, and reinstatement of removal—that d o not invo l ve a hearing before an immig ration judg e. See J ennif er L ee K oh, Removal in the Shadows of Immigration Court
, 90 S. C a l. L

. Rev. 181, 183–84 (2017); Shoba Sivaprasad W adhia, The Rise of Speed Deportation and the R o le of Discretion , 5 Colum. J

. Race & L

. 1, 2–3 (2014). The p r oceeding s are summary in nature a nd conducted b y front-line immig ration enforcement officers employ e d by

DHS.

This c ase involves a dministrative removal under 8 U .S.C. § 1228(b). A DHS officer ordered Eladio Gomez -Velaz co, a native and c itiz en of Mex ico, removed from the United States. Gomez -Velaz co contends that his due process rig hts were violated b ecause h e did not have counsel present at the
outset o f the removal process. We wil l assume that a violation occurred. The question we addre s s i s whether Gom e z

- Velaz c o must show that he was prejudiced b y the violation. W e conclude that he must and that he has not done so. W e therefore deny his petitions for review.G O M E Z

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I

B e fore d iscussing the f

acts of Gomez -Velaz co’s case, it will help to beg in with a brief overview of how administrative removal works. Section 1 228(b) authoriz es DHS to order a limited c l a s s of n on-citiz ens r emoved from the country without affording t h em a hearing before an immig r ation judg e. To invoke § 1228(b), DHS must establish that the individual to be removed: (1) is not a c i tiz en of the United States; (2) h a s n o t been lawfully admitted for p ermanent residence; and (3) has been c onvicted of an a g gr a v a ted felony

. 8 U.S.C. § 12 2 8 ( b ) ( 1), ( 2); 8 C.F .R. § 2 38.1(b)(1). Proceeding s under § 1228(b) are summary in nature because if D HS establishes those three predicates, the individual is conclus i v e l y p r e s u

m e d r e m o v able and categ orically inelig ible for most forms of discretionary relief from removal. 8 U .S.C. § 1228(b)(5), (c); see United States v. A rrieta
, 224 F .3d 1076, 1080–81 (9th Cir. 2000).

DHS commences administrative removal proceeding s b y serving y ou with a “ No tice of Intent to I ssue a F inal Ad m i n i strative Removal Order.” 8 C.F .R. § 2 38.1(b)(2). The notice must a lleg e each of the three p redicates necessary t o t r i g g e r e l i g i b i l i t y f o r a d m i n i s t r a t i v e r e m o v a l

. § 238.1(b)(1 )
, ( b ) ( 2)(i). The notice must also advise y ou o f certain rig hts, among them the rig h t to be re p r e s e n t ed b y counsel of y o ur choosing at no ex pense to the go v e r n ment, the rig ht to rebut the charg es ag a inst y ou, and the rig ht to request withholding of r emoval if y o u fear perse cution o r torture in the country to which y ou would be re m o v ed. § 238.1(b)(2)(i).

Up o n s e r vice o f the notice, y o u have ten day s to file a response. § 2 38.1(c)(1)

. I n the response, y ou can (amongG O M E Z

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other thing s) attempt to rebu t t h e charg es, r e quest an opportunity to review the g overnment’s e vidence, and request withholding of removal. Alternatively
, y ou can waive the rig ht to pursue any o f these options and concede that y ou a re removable as charg ed.

I f y ou do n ot file a respo n s e , o r i f y ou concede that y ou

are remo v a b le a s charg e d
, a DHS o fficial k nown as the deciding officer will issue a “F inal Administrative Removal Order,” w hich for ease of ref e r e n c e we will simply call a removal o r d e r

. § 238.1(d)(1). To allow an opportunity for judicial review, the order may not be ex ecuted for 14 day s unless y o u waive that waiting p eriod in writing

. 8 U .S.C. § 1228(b)(3); 8 C.F .R. § 238.1(f)(1).

I f the deciding officer issues a removal order and y ou fear persecution or torture in the country to w hich y o u wo uld be removed, the deciding officer must re f e r t h e case to an asy lum officer to conduct a reasonable fear int e rview. 8 C.F

. R. § 238.1(f)(3). I f the asy lum officer determines that
y our f ear of persecution or torture appears reasonable, the

case is transferred to an immig ra t i o n j udg e for a hearing to det e r m i n e whether y ou are entitled to w ithholding o f removal. § 208.31( e )

. I f the asy lum officer determines that
y ou d o not have a r e as onable fear of p ersecution or torture,
y ou can seek review o f that determination by an immig r ation judg e. § 2 0 8

. 31(g )

. B ut if the adverse reasonable fear determination is ultimately upheld, the removal o r d er may then be ex ecuted.

W ith that b ackg round in mind, we can turn to the facts o f this case. DHS officers determined that Gomez

- Velaz co, then confined in county jail, appeared to be elig ibl e for removal under § 1228(b). Shortly after Gomez -Velaz c o wasG O M E Z

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r eleased, DHS officers took him into custody pursuant to a warrant issued by the ag ency

. The o fficers served him with

a N otice of Intent to I ssue a F inal Administrative Remo v al O rder. The n otice alleg e d that Gomez -Velaz co is n o t a citiz en of the United Sta t es ; that he has not been lawfully admitted for permanent residence; and that he has been

con v i c t ed of an ag g r avated felony
, namely
, second-deg r ee rape under Oreg on law. The notice advised Gomez -Velaz co of his rig h t to contest the c harg e s a nd his rig ht to be represente d b y counsel of his choosing at no ex pense to the
g overnment.

The o fficers attempted to take a formal sworn statement from G omez -Velaz co, but he refused to g ive one without his attorney present. The DHS officers k new Gomez -Velaz co had retained an attorney be c a u s e two months earlier the attorney h ad notified them of Gomez

- V elaz co’s pending application for a U -visa. S e e 8 U.S. C

. § 1 101(a)(15)(U). Alth o ug h G omez -Velaz co refused to provide a sworn statement, h e nonetheless admitted the a l l e gations in the notice and c onceded that he was removabl e a s c h arg ed. He did not claim f

ear o f p ersecution or torture in Mex ico, but he declined to waive the 14-day waiting period for ex ecution o f the removal order. He made each of these decisions without the benefit of co u n s e l ’ s a dv ice b ecause his attorney was not present.

I mmediately after Gomez -Velaz co conceded that he was removable as charg ed, and before he h ad a chance to consult with his a ttorney , the deciding officer issued a removal order under § 1228(b). B ecau s e Gomez

- Velaz co had not waived the 14-day waiting p eriod, he w as not removed from the

c ountry , and before the w aiting period ex pired his attorney f i l e d a p etition for review in this c ourt challeng ing t h eG O M E Z

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validity o f the removal order. W e is s u ed a s t ay of removal pending o ur resolution of the petition, whic h r e mains in effect.

I I

Gomez -Velaz co argues that the DHS officers v iolated his rig ht to coun sel by pressuring him into conceding removability without the advice of counsel, even after he told them that he d id not want to g ive a sworn statement until he could speak with his attorney

. W e have jurisdiction to r eview this constitutional claim under 8 U.S.C. § 1252(a)(2)(D). A s mentioned at the outset, we will assume without deciding that the officers’ c on d u c t violated Gomez -Velaz co’s rig ht to counsel.

Th e question becomes whether G omez -Velaz co must show prejudice in order to prevail. T h e answer to that
q u e s t i o n requires a point of clarification as to the source o f the rig ht at issue. The Six th Amendme n t does not afford a rig ht to the assistance of counsel in immig ration proceeding s. Hernandez-Gil v

. G o nzales
, 476 F .3d 803, 806 ( 9th Cir. 2007). The rig ht to b e repres e n t e d b y counsel at one’s o wn

ex p ense is protected as an inciden t o f the rig ht to a fair hearing u n der the Due Process Clause of the F ifth Amendment. B i wot v. Gonzales
, 403 F .3d 1094, 1098–99 (9th Cir. 2005); see also 8 U.S.C. § 1228(b)(4)(B ) (“the alien sh a l l h ave the privileg e of being represented ( at no e x pense to the g o vernment) by such counsel, authoriz ed to practice in such proceeding s , as the alien shall choose”). Thus, an individual who asserts that he was denied the rig ht to counsel in immig r ation proceedin gs i s asserting that his rig ht to d ue process was violated.G O M E Z

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As a g e neral rule, an individual may obta i n relief for a due process v iolation o n l y if he shows that the violation caused h im prejud ice, meaning the v iolation potentially affected the outcome of the immi gr a tion proceeding

. H ernandez-Gil
, 4 7 6 F .3d at 808; Biwot
, 403 F .3d at 11 0 0

. T hat r ule rests on the view that the results of a pr o c ee d i n g should not be overturned if the outcome would have been the

same e v e n without the violation. Gomez -Velaz co contends that the rule should be different w hen a d ue process violation is predicated on denial o f the rig ht to counsel. I n that contex t, he u rge s, prejudice should be conclusively presumed a nd automatic reversal should follow.

There is some support f o r t h e r ule Gomez -Velaz co advocates. I n cases involving removal proceeding s before an immig ration judg e, we have h eld that requiring an individual
t o proceed with the merits hearing without the assistance o f counsel violates due process, absent a v a l i d w a iver of the rig ht to counsel. See, e.g. , Hernandez

- G i l
, 476 F .3d at 806–08; Tawadrus v. Ashcroft
, 364 F .3d 1099, 1103–05 (9th Cir. 2004). A nd in Montes-Lopez v. Hold e r , 6 9 4 F .3d 1085 (9th Cir. 2012), we carved out an ex c e p tion to the g eneral rule requiring a showing of prejudice. There we held that an individual who is wrong ly d enied the assistance of c ounsel at the merits hearing need not show p r e j u d i c e in order to prevail. Id

. a t 1090. Prejudice in that contex t is conclusively presumed and automatic reversal is required.

The rule we adopted in M ontes-Lopez is based in part on the practical difficulties one would face in try ing to prove that the outcome of the merits hearing would have been different had counsel been a

b le to assist. Id. at 1092. I n most cases it would be n ex t to impossible to determine what t he evidentiary

record would have looked like had counsel beenG O M E Z

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present. The same practical difficulties ex p lain why
, in the Six th Amendment contex t, a showing o f p r e judice is not required when the defe n d a n t is denied counsel (or wrong ly denied counsel of choice) throug hout the entire cr i m i nal proceeding

. See United States v. Gonzalez-Lopez
, 548 U.S. 140, 148–50 (2006). I n that contex t, too, it would usually be impossible to determine what different decisions c ounsel (or counsel of choice) mig ht ha v e made, a nd what impact those decisions mig ht have had on the outcome of the proceeding

. Id. at 1 50–51. Given “the difficulty of assessing the effect o f the error,” id. at 149 n.4, automatic reversal is required.

Even in the Six th Amendment contex t, thoug h, not all violations o f t h e r ig ht to counsel are treated as structural

errors mandating a

u to m a t ic reversal. I f the rig ht to counsel has been wrong ly denied onl y a t a d iscrete stag e of the proceeding
, and a

n assessment of the error’s effect can readily be made, then prejudice must be found to warrant reversal. F or ex ample, the Supreme Court h as held that denial of counsel at the preliminary hearing st a ge i s subject
to harmless error review rather than an automatic reversal rule. Coleman v. Alabama
, 3 99 U.S. 1, 10

– 11 (1970). A nd when the g overnment obtains e vidence at ce r t a i n pre-trial

s t a ges of the case in v iolation of the rig ht to c ounse l
, admission of that evidence at trial is also subject to harmless

error r eview. See, e.g. , S atterwhite v. Texas
, 486 U.S. 249, 258 (1988) (denial of rig h t t o c o unsel at court-ordered
psy chiatri c ex amination); Milton v. W ainwright
, 4 07 U.S. 371, 372 (197 2 ) (denial of rig ht to counsel during postindictment interactions with undercover p olice officer); United States v. W

ade
, 388 U .S. 218, 242 (1967) (denial o f rig ht to counsel at pre-trial line-up).G O M E Z

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I n our view, the rationale supporting the au t o m a tic

reversa l ru l e does not ex tend to the circumstances we confront in this case. Gomez -Velaz co was not d e n i e d t he assistance of counsel throug hout the entirety of the administrativ e r emoval p r ocess, which commences with service of the Notice of I ntent to I ssue a F inal Administrative Removal Order and ends with ex ecution o f t h e o rder. He lacked counsel at one discrete stag e of the process—the point of his initial interaction w ith DHS officers. That was, to be
sure, an important stag e b ecause he h ad to decide whether to contest the charg es ag a inst him and whether t o r e q u e st withholding o f removal, decisions that turn on potentially complicated factu al and leg al issues which virtually all lay people need the assistance o f counsel to analy z e intellig ently

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

Nonetheless, we think the e f fect of c o u n sel’s absence during the initial interaction with DHS officers can r eadily be assessed, at least in cases like this one, i n w hich the individual does not waive the 14-day w a i t i n g period and is allowed to consult with counsel befo re the removal order is

ex e c uted. I n that scenario, we a r e not forced to speculate about the different decisions counsel mig h t h a v e made h ad she been p resent, for counsel can a ct on those decisions a fter i s suance o f the removal o rder and remedy any damag e done by her client’s un-counseled admissions or waivers.

Take the two most common admissions or wa i v ers that

occur. I f the individual a dmits th e al l e g ations in the notice and concedes removability
, a s Gomez -Velaz co did here, the lawy er can still file a r esponse a sserting any valid g rounds for

con t esting removability w ithin the ten-day period p ermitted under 8 C.F .R. § 238.1(c) ( 1 ). W e doubt DHS w o uld refuse
to consider the r esponse o n the theory that the individual’sG O M E Z

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earlier un-counseled concession of removability is somehow irrevocable. B ut even if the ag ency t ook that dubious position, a r eviewing court w ould be able to assess whether the g rounds asserted raise a p l a usible basis for contesting removability
, and thus could determine whether counse l ’s

a b sence during the initial interaction with DHS officers caused prejudice. And if the individual waives t h e r ig h t to request w ithholding of removal despite fearing persecution o r torture i n t h e country to which he would be removed, the lawy er can still request a reasonable fear determination, since that does not occur un til after issuance of the r emoval order in any event. § 238.1(f)(3).

I n sum, we see n o r eason to c onclusively presume p r e judice when a

n individual is denied the rig ht to co u n s el during his initial interaction with DHS officers, provided the individual is able to c onsult with counsel before the removal order is ex ecuted. I n that scenario, we can d e t e r m i ne what
t h e e videntiary record would have looked like h ad the violation not occurred, unlike the scenari o i n which counsel is precluded from participating in the merits hearing before an immig ration judg e. A nd we can thus assess what prejudicial effect, if any , counsel’s abse n ce had on the outcome of the proceeding s.
Having concluded that Gomez

- Velaz co must s h ow prejudice to prevail, w e turn to w hether h e has made that showing he re

. A s just noted, he mig ht have been able to show prejudice ha d he attempted to contest the facts rendering h im removable y et been foreclosed from d oing so by virtue of his earlier un-counseled admissions. B ut he has

never attempted to contest the charg es ag ainst him, even a fter h a v ing an opportunity to consult w ith counsel, so he cannot contend that his un-counseled admissions cost him the chanceG O M E Z

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to raise p lausible g rounds for contesting removal. Nor can he claim p rejudice by virtue o f his u n

- co u n s eled waiver of the rig ht to request withholding of removal, since h e was ultimately g iven a reasonabl e f e ar interview and allowed to mak e t h e c a se that he should be g ranted withholding o f removal.

Gomez -Velaz co asserts only o ne other theory o f prejudice, wh i c h r elates to the recent d enial of h is U-visa application. He contends that if counsel had been present during his i n i t i al interaction with DHS o fficers, his attorney could have requested a stay of the proceeding s and thereby prevented the removal order from b eing issued i n t h e first place. He argues that he suffered p rejudice because the very issuance of the remova l order neg a tively influenced the
ag ency ’s consideration of his U -visa application a nd contributed to the decision to deny it.

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

- Velaz co provides nothing to sup p o rt his assertion that the mere issuance of a removal o rd e r n eg atively affects the ag ency ’s c onsideration of a U-visa application. W e have found nothing in DHS r e gu l ations or policy g u idance to

s u gge s t that is the case, and we know that issuance of a removal order does not preclude a n individual from obtaining a U-visa. The ag ency ’s regulations specifically contemplate
t h e g ranting of a U-visa application even after issuance of a

re m o v al order. They provide that upon approval of the application the removal order “will be d eemed canceled b y operation of law” as of the date of approv a l

. 8 C

. F .R. § 214. 1 4 (c)(5)(i); see United S tates v. Cisneros-Rodriguez
, 813 F .3d 748, 761 (9th Cir. 2015).G O M E Z

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The second flaw in Gomez

- Velaz co’s argument is that the
ag ency ’s written e x pl a n a t i on for why it denied h is U-visa application does not rely on issuance of the removal order a s

a n e g ative factor. To b e elig ible for a U-visa, G omez

Velaz co needed to obtain a waiver of inadmissibility , and to obtain that he n eeded to persuade the ag e ncy that “it is in the public or national interest” to allow him to remain i n t he United States. 8 C.F

. R. § 212.17(b)(1). T he a ge ncy

ex p lained that it declined to g rant a w aiver of inadmissibility b ecause his criminal record indicated that he posed a ri s k t o public safety

. I n support of that conclusion, the a g ency cited Gomez -Velaz co’s conviction for second-deg ree r a pe, an especially serious offense because the victim was 13 y ears old. The ag ency also cited his multiple vio l a t i o n s of the
p robationary conditions imposed for that conviction an d h i s multiple arrests for other offenses. Give n t h i s record o f criminal wrong doing
, the ag ency coul d not conclude that a favorable ex e rcise of its discretion wa s warranted. That
outcome is not surprising
, as the ag ency ’s regulations provide that it will g rant a waiver o f inadmissibility to applicants convicted of v i o lent or dang erous crimes only in “ex traordinary circumstances.” § 2 1 2.17(b)(2). Nothing in the ag ency ’s decision turned on the f act that a removal order had been issued.

* * *

I n the circumstances of this case, Gomez -Velaz co was required to show prejudice in order to prevail o n h is d ue process claim. Althoug h h e m a y have been improperly denied the rig ht to counsel during his initial interaction withG O M E Z

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DHS o fficers, he has made no showing that the denial of that rig ht caused him any

prejudice.

P ETITIONS F OR REVIEW DENIED.

NAVARRO, Chief District J udg e, dissenting :

I would g r ant the Petition for Review and vacate the F inal Administrative Removal Order (“F ARO”) issued on J une 12, 2014.

I would first make the distinct f inding —as o pposed to the majority ’s a ssumption—that Gomez -Vela z c o’s rig ht to counsel was violated. “Althoug h there is n o Six th A mendment rig ht to c o unsel in an immig r ation hearin g, Cong r ess has recog

niz ed it among the rig hts stemming from the F ifth Amendment g uarantee o f due process that adhere to i ndividuals that are the subject of removal proceedings

. ” T a wadrus v. A shcroft
, 364 F .3d 1099, 1 103 ( 9th Cir. 200 4 ) (citing R ios-Berrios v. I.N.S.
, 776 F .2d 859, 86 2 ( 9 t h Cir. 1 9 8 5 ) )

. W hile “[ t] he rig h t to c ounsel in immig ratio n proceeding s is rooted in the Due Process Clause,” B iwot v

. Gonzales
, 403 F .3d 1094, 1098 (9th Cir. 2 0 0 5 ), the r ig ht to counsel in ex pedited removal p roceeding s is also secured b y statute. 8 U.S.C. § 1228(b)(4)(B ) (“[ T] he alien shall have the privileg e of being r e p r e sented (at n o ex pense to the
g overnment) by

such counsel, authoriz ed to practice in such proceeding s, as the alien sh al l choose.”); 8 C.F .R. § 238.1(b)(2)(i) ( “[ The Notice of In tent] shall advise that the alien: has the privileg e o f being represented, at no e x pense to the g overnment, b y co unsel of the alien’s choosing
, as long

as c ounsel is authoriz ed to practice in removal proceeding s”);G O M E Z

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see also 8 C.F .R. § 238.1(b)(2)(iv) (requiring I CE to provide aliens f acing e x pedited removal “with a list o f available free leg al services prog

rams”).

Moreover, ex p e dited removal proceeding s under § 1228 require “conformity with section 1229a” and the “privileg e o f being r epresented” is further codified in that section as well. See 8 U.S.C. § 1229a(b)(4)(A). This rig ht to be represented
at n o c o st to the g overnment is also listed on the “ Notice o f I n t ent to I ssue a F ARO” under “Your Rig hts a n d Responsibilities.” I f the rig ht to c ounsel under § 1 228 is only for the noncitiz en to be advised of the rig ht to have counsel, with no practical effect, then it would be no rig ht to counsel
at a ll. See Rios-Berrios
, 776 F .2d at 863 (ex plaining that the rig ht to counsel must be r espected in substance as well as in name).

I ndeed, this Circuit h as consistently emphasiz ed the critical ro le of counsel in deportation proceeding s. See, e.g. , Reyes-Palacios v. I.N.S.
, 836 F .2d 1154, 1155 (9th Cir. 1 988) (“The importance of counsel

. . . can neither be overemphasiz ed nor ig nored.”); United States v. Cerda-Pena
, 799 F .2d 1374, 1377 n .3 ( 9th Cir. 1986) (r e f e r r i ng to “an outrig ht refusal to al l o w an alien the o p portunity to obtain representation” a s “an eg reg ious v iolation of due process”). W e have c har ac t e riz ed the a lien’s rig ht to counsel o f choice

as “fundamental” a n d h a ve warned the ag ency not to treat it casually

. Rios-Berrios , 776 F

. 2d at 863–64.

Here, the record clearly demonstrates that G o m e z

Velaz co asserted that he had counsel a nd wanted h is counsel present. F irst, in F orm I -213, I CE Officer Stewart ex plains that duri n g the F ARO p roceeding s, Gomez -Velaz co “was unwilling to provide a s w o rn s tatement without an attorneyG O M E Z

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present.” Second, on the “Record o f Sworn Statement” dated J une 12, 2 014, the first question states, “Are y ou w i l l i ng to answer my

questions? ” to which Gomez -Velaz co answered: “I prefer not to until I talk to my a ttorney .” DHS nevertheless proceeded with the e x pedited removal proceeding s w ith o ut first affording

Gomez -Velaz co the opportunity to notify a

nd speak with his counsel a s h e requested. I n d o ing so, DHS directly d isreg a

rded G omez -Velaz co’s ability to ex ercise this fundamental rig h t.

Having found that Gomez -Velaz co’s rig ht to counsel was

v iolated, I would then find that under Montes-Lopez v. Holde r , 694 F .3d 1 0 85 (9th Cir. 2012), no prejudice is required to vacate the F ARO. The M ontes-Lopez

court held “an alien who shows that he has be e n d e nied the statutory rig ht to be represented by cou nsel in an immig r ation proceeding need not also show that h e was prejudiced by the absence o f the attorney .” 694 F .3d at 1093–94

. I n support, the court stated that “the absence of c oun s e l c a n chang e an alien’s strateg ic decisions, p r event h i m or her from making potenti a lly -meritorious leg al arguments, and limit the evidence the alien is a

ble to in c l u de in the record.” Id. at 1092.

The majo r i t y here disting uishes Montes-Lopez by a distinction without a difference. F irst, the majority reg ards Montes-Lopez as “a n e x c eption to the g eneral rule requiring

a showing o f prejudice;” h owever, prior to Montes-Lopez
, there was n o g ene r a l rule that required a showing o f prejudice—a fact that Montes-Lopez
, Hernandez-Gil
, a nd Biwot
, the cases the majority r elies so heavily o n , a l l specifically identify

. Id. at 1090 (“W e have never decided, however, whether prejudic e i s an element of a claim that counsel has been denied in a n i mmig r a tion proceeding .”);G O M E Z

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Hernandez-Gil v. G onzales
, 47 6 F. 3 d 803, 808 ( 9th Cir. 2007) (“B ecause we determine that Hernandez -Gil has shown that he w as prejudice d b y t he d enial of his statutory rig ht to counsel ‘ we ag ain leave u nanswered the question whether a petitioner must show prejudice when he has been denied the rig ht to counsel in removal proceeding s.’”) (citing B iwot
, 403 F .3d at 1100).

Second, the rig ht to counsel is s u b s t antively the same under both the § 1228 ex pedit ed removal proceeding before

a D H S deciding officer, as u s e d here, and the § 1229
p r oceeding before the immig ration judg e, as in Monte s

Lopez

. 1 Compare § 1228(b)(4)(B ) with § 1229(b)(1); see also United States v. Peralta-Sanchez
, 847 F .3d 1 1 2 4, 1130 (9th Cir. 2017) (emphasiz ing the similarity of § § 1228 and 1229 in the rig ht to counsel c o n tex t). M o n t e s -Lope z ’s holding refers to “ an immig ration proceeding ” without differentiating between a proceeding before an immig rati o n judg e and a DHS deciding officer. M

ontes-Lopez , 694 F

. 3d at 1093–94.

N o t a b l y , the Montes-Lopez court purposefu l l y disting uished p ure immig ration proceeding s f rom collateral attacks on a removal order in a § 1326 illeg al reentry criminal
case, the latter of which requires prejudic e specifically because o f “the l i m itations on criminal defendants’ rig h t to

c o l l a terally a ttack the result of a p r ior proceeding .” MontesLopez
, 694 F .3d at 1093; see also V illa-Anguiano v. H

older
, 727 F .3d 873, 876 n.1 (9th Cir. 2013) (contrasting the § 1326 illeg al reentry collateral attack standard under Reyes-Bonilla with the immig ration proceeding s petit i o n f o r r e v i ew standard

1 T h e Go v ern m en t d ecid es un der w h i ch p ro cess to p ursu e d ep o rtatio n b y issu in g eith er a No t i c e o f In ten t to Issu e a FA RO un d er § 1 2 2 8 or No tice to A

p p ear u n d er § 1 2 29

.G O M E Z

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under Montes-Lopez ). The Montes-Lopez court compared the collateral attack versus petition for review in the immig r ation
contex t to the d ifference b etween a criminal c ollateral attack

a n d a d irect appeal: “A criminal defendant who all e g e s ineffective a ssistance of counsel must g enerally show prejudice, Smith v. Mahon e y , 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 c o un sel is p er se prejudicial. See CerdaPena
, 799 F .2d at 1377 n.3 ( “[ A] n outrig ht refusal to allow an alien the opportunity to obtain representation may be such an eg reg ious violation of due process so as not to r equire a n y further showing of p rejudice”); G arcia-Guzman v

. Reno
, 65 F

. Supp. 2d 1077, 1087 (N.D. Cal. 1999) (ex plaining that

“ Cerda-Pena therefore sug g ests that if the viola t i o n of the rig ht to counsel is sufficiently eg reg ious—i.e., a clear denial of representation or outrig ht refusal to p er m i t a n 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 stag e s of a criminal proceeding
, s u c h a s a preliminary hearing
, a courtordered psy c h i a

t r i c e xa m i nation, post-indictment interactions with u n d ercover police officers, and pre-trial line-ups. However, none of these situ at i o n s a re comparable to the instant case. Here, Gomez -Velaz c o was in custody b y DHS when he asked for an attorney —a situation that, in a nonimmig ration case, would n ormally mandate a n attorney a s soon as a defendant requests one.

Furthermore, in drawing comparisons to these Si x t h Amendment s i t

u a tions, the majority attempts to illustrate h owG O M E Z

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the standard in those cases are o nly “ subject to harmless error review rather than an automatic r eversal rule,” and the

m ajority concludes that because this is a similar discr e t e stag e, prejudice is required rather than presumed. However, in a r g uing this, the majority once ag ain completely disreg ards Montes-Lopez . There, the court held that “[ w] hen this court concludes that an ag ency has not c o rrectly applied controlling law, it must ty

pically rema n d
, e ven if we think the error

was l i k e ly harmless.” Montes-Lopez
, 694 F .3d at 1092 (citing INS v. Orlando Ventura
, 537 U.S. 12, 16–17 (2002)). I mportantly
, Montes-Lopez adopts th e reasoning of the Second Circuit, w hich “declined to add a prejudice requirement to this rule because [ the c ourt] r e a s o ned that automatic reversal u

pon violation of such a regulation would
encourag e ag ency compliance w i t h its own rules and serve the interests of

judicial economy .” Id. at 1091 (citing M ontilla

v

. I NS
, 926 F .2d 1 6 2, 169 (2d Cir. 1991)). W e m u s t recog niz e that in mandating automatic reversal, not only will

we c ontinue to protect this r ig ht to counsel, but also w e will better hold these a g encies accountable i n their actions a nd conduct b y enforcing their own regulations more strictly upon them. I n h olding that this situation is akin to a harmless error review, the majority

disreg ards Montes-Lopez ’ s holding and downplay s the rig ht to counsel.

The majority a ttempts to disting uish Montes-Lopez b y stating that it is different than the instant c a s e b e cause it is “based in p art on the practical difficulties one would face in try ing to prove that the outcome of the merits hearing would have b een different had coun s e l b e e n able to assist.” The majority reasons that Montes-Lopez differs because “Gomez

Velaz co was not denied the a ssistance of counsel throug hout the e ntirety of the administrative removal process” but that he “lacked counsel at one discrete stag e of the process.”G O M E Z

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To carve out such a nuanced d i stinction undermines the fundamental n a t u r e of the rig ht to counsel. See, e.g. , Hernandez-Gil
, 4 7 6 F .3d at 806 (“The hig h stakes of a

r emoval proceeding a

nd the maz e of immig ration r ul es a n d
regu l ations make evident the necessity of the rig ht to counsel.”); M

ontes-Lopez
, 694 F .3d at 1091 ( “No showing o f
pre j udice is required, however, w hen a rule is ‘intended primarily to confer impo r tant procedural benefits upon indiv[ i] duals’’ o r ‘when alleg ed regulatory violations implicate fundamental statutory o r constitutional rig hts.’”) (quoting Leslie v. At torney G en. , 6 11 F .3d 171 (3d Cir.2010)). L ikewise, to permi t a n ag ency to continue to ig nore its o wn re g

u l a tions undermines the fundamental nature of the rig ht to counsel. Fi nally
, to ig nore e stablished precedent in favor of the m a j o rity ’s new ex c eption undermines the f

undamental nature of the r i gh t t o counsel. A c cording ly
, I would vacate the F ARO because Gom e z

Velaz co established a rig ht to counsel due process v i o l a t i on and therefore need not show prejudice.

Even if p r e

j udice 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 d efendant had identified a form o f relief it was plausible he would h ave obtained absent the d ue process violation.” I n Cisneros-Rodriguez
, t h e defendant
argued that “ had she obtained counsel [ during h er predicate § 1228 proceeding ], it is p lausi b l e that she would have applied for and obtained a U- visa.” Id. at 7 53. T h e court ag reed that because she demonstrated prima f a c i e U-Visa elig ibility
, it was plausible that she would have obtained a UVisa had she a

pplied for one a t the time o f her orig inal § 1228 proceeding

. Id. at 761. T h i s finding was made despite theG O M E Z

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f a c t t h a t the defendant later applied f or a U-Visa a

nd wa s rejected. Id. at 762.

Here, the record demonstrates that Officer Stewart

— t he arresting I CE officer who provided the e vidence to Deciding Officer Eliz abeth C. God fr ey for the issuance o f the F ARO—knew that Gomez -Velaz co was represented b y counsel and that Gomez -Velaz co ha d a pending U-Visa applicati o n

. W hen Officer Stewart nevertheless chose to arrest G omez -Velaz co and continue with the § 12 2 8 proceeding without allowing him to consult with his attorney , Gomez -V elaz c o was prejudiced more than the defendant in Cisneros-Rodriguez because he had a plausible a nd p ending U-Visa application. A s such, I cannot a g ree with the majority that Gomez -Velaz co f ai led to demonstrate sufficient prejudice under Cisneros-Rodriguez

.

U ltimately
, even without a f inding of prejudice, the majority ’s decision to deny Gomez -Velaz c o’s petition for review dilutes the fundamental rig h t to counsel a nd completely ig nores indisting uisha b l e precedent. See Hernandez v. H

o l d e r , 545 F e d. Appx

. 710, 713 (9th Cir. 2013) (I kuta, J
., concurring ) (unpublished o pinion) (stating d i sag reement with Montes-Lopez while still acknowledg i n g that the Ninth Circuit is bound by its decision). A c cording ly
, Imust respectfully

dissent.