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The IJ's refusal to grant Petitioner a continuance when his attorney failed to appear in court resulted in a prejudicial denial of Petitioner's statutory right to counsel.

In 1998, Petitioner was placed in removal proceedings in Arizona pursuant to INA §212(a)(6)(A)(i), for being present in the U.S. without inspection since 1985. Petitioner was granted a change of venue to Los Angeles. Between 1998 and 2003, proceedings were continued on a number of occasions due to conflicts on the immigration judge's calendar and for the benefit of Petitioner's attorney. At each hearing, the IJ instructed the attorney to submit all supporting documents at least two weeks in advance of the next scheduled hearing and also informed the attorney that a criminal background check would be required to verify Petitioner's eligibility for cancellation of removal. In September 2003, Petitioner appeared for a hearing on his cancellation application accompanied by a new attorney whom he had retained just one day earlier. Petitioner informed the IJ that he had tried to contact his original attorney on a number of occasions prior to the hearing but had been unsuccessful. The IJ told Petitioner that earlier that day, Petitioner's original attorney had appeared at his office and told him that he had been unable to contact Petitioner. The IJ briefly questioned Petitioner on his lack of cooperation, but repeatedly cut him off and ultimately accepted the attorney's version of events. After a brief recess, the IJ rejected the request of Petitioner's new attorney for a brief continuance to familiarize himself with the facts of the case. At the IJ's encouragement, the attorney withdrew from the case but stayed in the courtroom to observe. The IJ then "engaged in an extended monologue," lecturing Petitioner for not responding to his attorney and for not replacing him sooner. The IJ's review of the merits of Petitioner's cancellation application "lasted mere minutes" and resulted in a denial. The BIA affirmed the IJ's decision to deny the continuance and rejected Petitioner's ineffective assistance of counsel claim.

Respondents in removal proceedings are guaranteed a right to counsel at their own expense. INA §292. There must be a "knowing and voluntary waiver of the right to counsel" for an applicant to appear pro se. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). To obtain such a waiver, the IJ must "(1) inquire specifically as to whether petitioner wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response." Id. In the present case, the court noted that not only did the IJ not inquire as to whether Petitioner wished to proceed pro se, "[i]t was clear that [Petitioner] did not want to proceed pro se from the fact that he brought another attorney to the hearing."

The court then considered whether, despite the absence of a knowing and voluntary waiver of the right to counsel, the IJ could nevertheless refuse to continue proceedings. In Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007), the court concluded that "[w]hen an immigrant has engaged counsel and the IJ is aware of the representation, if counsel fails to appear, the IJ must take reasonable steps to ensure the immigrant's statutory right to counsel is honored." The analysis of an IJ's refusal to grant a continuance requires an individualized inquiry. Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005). The court noted that Petitioner did not speak English, did not seek to delay proceedings in bad faith and was only seeking a short continuance. Moreover, the IJ/BIA decision was based on the erroneous conclusions that (1) Petitioner was responsible for his case having been previously continued multiple times; and (2) Petitioner was negligent in pursuing his case. The latter conclusion, the court noted, was based in large part on an ex parte communication with his former attorney. Finally, the court found that the IJ's denial of the motion was driven by the reality that an additional continuance would result in a further two-year delay. The court found that none of these were sufficient reasons to deny a continuance, thus requiring Petitioner to proceed without counsel. The court then found that Petitioner was "clearly prejudiced" by the denial of his statutory right to counsel because the IJ's denial of relief rested principally on the fact that Petitioner had not completed a criminal background check, a task that the IJ had specifically assigned to Petitioner's prior attorney. Moreover, Petitioner testified that he had no criminal record, and the government did not contest this fact. Had Petitioner been able to provide the requested record check through an attorney, he would have been given the opportunity to demonstrate hardship to his family. The petition for review was granted.