FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO MONTES-LOPEZ, 

Petitioner, No. 05-76297

v. Agency No.  A95-487-944 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 20, 2007—San Francisco, California

Filed May 17, 2007

Before: Alfred T. Goodwin, Sidney R. Thomas, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Thomas

5823
COUNSEL

Robert B. Jobe and Aruna Sury, Law Office of Robert B.

Jobe, San Francisco, California, for the petitioner. 

5824 MONTES-LOPEZ v. GONZALES
Peter D. Keisler, Mark C. Walters, and Jennifer L. Lightbody,

Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

OPINION

THOMAS, Circuit Judge: 

In this appeal we consider whether the Board of Immigration Appeals (“BIA”) erred by failing to address petitioner’s

claim that he was denied his right to counsel at proceedings

before the immigration judge (“IJ”). We conclude that the

BIA so erred and remand for consideration of petitioner’s

claim.

I

Mario Montes-Lopez, also known as Mario MoralesAbrego, is a native and citizen of El Salvador who entered the

United States without inspection in 2002. When he crossed

the border, he was seventeen years old. Soon after MontesLopez entered the United States, the Department of Homeland

Security instituted removal proceedings against MontesLopez. He conceded removability and applied for asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). 

Between December 10, 2002, Montes-Lopez’s first immigration hearing at which he appeared pro se, and May 12,

2004, his merits hearing which was also held pro se, he experienced a series of difficulties in obtaining representation. His

first attorney withdrew, stating that Montes-Lopez had

decided to represent himself. He then retained the services of

a pro bono attorney, to be later replaced by attorney Otto Peña

who prepared his application for asylum, withholding of

removal, and protection under CAT. Throughout this time,

MONTES-LOPEZ v. GONZALES 5825
Montes-Lopez was granted continuances to afford him representation. 

On May 12, 2004, Montes-Lopez appeared without Peña,

but with a letter from Peña explaining that Peña was unable

to appear because his license had been suspended until

August 2004. The IJ proceeded to exhaustively interrogate

Montes-Lopez on the precise time he received the letter and

on when he last spoke with Peña, presumably to discern when

Montes-Lopez discovered that Peña would be unable to represent him. Based on what the IJ thought to be inconsistent testimony, the IJ concluded that Montes-Lopez had lied

regarding his communications with Peña and refused to grant

him a continuance. The hearing proceeded pro se. As opposed

to the lengthy questioning regarding Peña’s letter, the IJ’s colloquy on Montes-Lopez’s basis for asylum, withholding, and

CAT protection was relatively limited. The IJ denied the

applications, noting that Montes-Lopez was an incredible witness who attempted to delay the proceedings. 

On appeal to the BIA, Montes-Lopez asserted but one

claim: that his statutory and constitutional right to counsel

was violated. The BIA summarily affirmed the IJ’s decision

pursuant to 8 C.F.R. § 1003.1(e)(4), thereby failing to address

Montes-Lopez’s claim that his right to counsel was deprived.

The BIA decision stated in full only that: 

The Board affirms, without opinion, the results of

the decision below. The decision below is, therefore,

the final agency determination. See 8 C.F.R.

§ 1003.1(e)(4). 

II

We review de novo questions of law and claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,

1107 (9th Cir. 2003), and review for abuse of discretion the

IJ’s decision not to continue a hearing, Biwot v. Gonzales, 403

5826 MONTES-LOPEZ v. GONZALES
F.3d 1094, 1099 (9th Cir. 2005). However, we are not permitted to decide a claim that the immigration court has not considered in the first instance. INS v. Ventura, 537 U.S. 12, 16

(2002) (per curiam) (oft referred to as the “ordinary remand

rule”); see also Barroso v. Gonzales, 429 F.3d 1195, 1208-

1209 (9th Cir. 2005) (“Although it appears that Barroso may

well have been denied his statutory right to counsel, it is not

for us to determine this question in the first instance.”). 

[1] “We think it goes without saying that IJs and the BIA

are not free to ignore arguments raised by a petitioner.”

Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).

This basic tenet is of particular force where a petitioner argues

on appeal to the BIA that the IJ proceedings were procedurally infirm, such as in claims of denial of procedural due process or the denial of the statutory right to counsel. Under the

ordinary remand rule established in INS v. Ventura and the

general requirement of administrative exhaustion, see Barron

v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004), we usually

decline to hear the claim unless the BIA does so in the first

instance. When a petitioner raises a claim based on a purported procedural defect of the proceedings before the IJ, the

only administrative entity capable of independently addressing that claim is the BIA. Here, by summarily affirming the

IJ’s decision, the BIA ignored—and denied review of—

Montes-Lopez’s claim that his right to counsel was violated

by the IJ. See 8 C.F.R. § 1003.1(e)(4) (providing a mechanism

for the BIA to affirm the IJ’s decision without opinion). The

BIA committed error in doing so. 

[2] For these reasons, we conclude that the BIA errs when

it fails on appeal to consider and decide claims that the IJ proceedings suffered from procedural irregularity. We therefore

remand to the BIA for determination of the claim that

Montes-Lopez’s right to counsel was violated at the proceedings before the IJ. 

PETITION GRANTED; REMANDED.

MONTES-LOPEZ v. GONZALES 5827