Migrant Right to Counsel Must be ‘Knowingly’ Waived

A federal appeals court broadened immigrant protection against speedy deportation by recognizing a right to hire their own lawyer when pursuing a fear of torture claim, and said that right must be clearly waived before proceeding.

The 9th US Circuit Court of Appeals held Tuesday that immigration law gives migrants not only a right to hire a lawyer to bring fear-of-persecution claims while fighting immediate deportation, but also requires that they must give a “knowing and voluntary waiver” of the right to counsel, if they don’t have a lawyer.

The panel went further to say it is not the obligation of the immigrant to show they were prejudiced by lack of waiver of their right because it is a constitutionally protected due process requirement that the waiver be made.

The government had argued that the statute provides for a lawyer at the initial interview by an ICE officer on the “fear of persecution” question, but does not extend that right to any further hearing before an immigration judge, if the migrant challenges an ICE officer’s decision.

The appeals court rejected that argument. “Congress has recognized [a right to counsel] among the rights stemming from the Fifth Amendment guarantee of ‘due process’ by codifying it,” the panel wrote in the unanimous decision.

Right to Counsel

Baldemar Zuniga, a Mexican national who has been in the US illegally since he was a child, testified against his two co-conspirators in a drug distribution and money laundering trial in 2012. While in prison for the drug crimes, ICE told Zuniga he would be placed in expedited removal and sent to Mexico.

But during his ICE hearing, Zuniga expressed fear that if deported to Mexico he would be tortured or persecuted by the cartel as retribution for his testimony against Mexico’s notorious Knights Templar cartel.

The ICE officer reviewing his claim rejected it as not a reasonable fear, so Zuniga appealed to an immigration judge. Hiss case was heard by a San Francisco immigration judge while Zuniga appeared via video conference from a detention center in Mesa Verde, California.

The judge told Zuniga he had a right to hire a lawyer then merely asked if he had one. Zuniga said no, but was never asked if he waived his right. That was the error, according to the appeals court.

The government did not dispute his right to a lawyer, but argued it was only at the ICE interview stage and did not extend to the immigration judge hearing.  It also argued that Zuniga had to show that his case was prejudiced from lack of a lawyer.  The appeal court rejected both positions.

Judges Andrew Kleinfeld, Michelle Friedland and visiting Judge William Pauley of New York, signed the opinion jointly.

Case: Zuniga v. Barr, No. 16-72982

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