United States Court of Appeals For the First Circuit

No. 19-1524

ANA RUTH HERNANDEZ LARA,

Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Stahl, and Lipez, Circuit Judges.

Sang Yeob Kim and Eloa J. Celedon, with whom Harvey Kaplan, Gilles Bissonnette, Henry Klementowicz, the American Civil Liberties Union of New Hampshire, and Celedon Law were on brief, for petitioner. Deirdre M. Giblin, Iris Gomez, and Massachusetts Law Reform Institute on brief for Massachusetts Law Reform Institute, American Immigration Lawyers Association New England Chapter, Boston College Law School Immigration Clinic, Boston University Immigrants' Rights and Human Trafficking Program, Catholic Charities of the Archdiocese of Boston, Catholic Social Services of Fall River, Central West Justice Center, DeNovo Center for Justice and Healing, Greater Boston Legal Services, Immigrant Legal Advocacy Project, Justice Center of Southeast Massachusetts, MetroWest Legal Services, The Northeast Justice Center, Political Asylum/Immigration Representation Project, and University of Massachusetts Dartmouth Immigration Law Clinic, amici curiae. Zoe Jaye Heller, with whom Katherine A. Smith, Trial Attorney, U.S. Department of Justice Office of Immigration Litigation, Civil Division, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

June 15, 2020 LIPEZ, Circuit Judge. Ana Ruth Hernandez Lara

("Hernandez"), a native and citizen of El Salvador, entered the

United States in the fall of 2013 without being admitted or

paroled. She made her way to Portland, Maine, where she was living

and working when she was arrested by immigration officers on

September 20, 2018, and issued a Notice to Appear. Following her

arrest, Hernandez was detained at the Strafford County Department

of Corrections in Dover, New Hampshire ("Strafford County Jail"),

where she remained throughout her removal proceedings.

Those proceedings culminated in an evidentiary hearing

on the merits of Hernandez's application for relief from removal,

during which Hernandez was required to represent herself. At the

end of the hearing, an Immigration Judge ("IJ") denied Hernandez's

claims for relief. With the assistance of her newly retained

attorney, Hernandez appealed the IJ's decision to the Board of

Immigration Appeals ("BIA") and filed a motion to reopen and

remand. The BIA dismissed Hernandez's appeal, denied her motion,

and ordered her removed to El Salvador.

Hernandez petitions for review on multiple grounds, but

we need decide only one. Concluding that the IJ denied Hernandez

her statutory right to be represented by the counsel of her choice,

we grant the petition, vacate the BIA's decision, and remand for

further proceedings consistent with this decision.

- 3 - I.

Over the course of her removal proceedings, Hernandez

retained an attorney, lost that attorney, and attempted to find

another to assist her in presenting the merits of her claims.

Because Hernandez's efforts to secure counsel, her requests for

additional time for that purpose, and the IJ's responses to those

requests are at the heart of our analysis, we describe the relevant

portion of each removal hearing. We then turn to the factual

underpinnings of Hernandez's claims for asylum, withholding of

removal, and relief under the Convention Against Torture ("CAT").

A. Removal Hearings

On October 11, 2018, three weeks after her arrest,

Hernandez had her initial master calendar hearing.1 The IJ advised

Hernandez of her "right to be represented at no expense to the

government by counsel of [her] choice," and Hernandez confirmed

that she had received the required list of low-cost legal services

providers.2 The IJ then asked Hernandez whether she wanted an

1 At this hearing and all subsequent hearings, Hernandez required the assistance of a Spanish interpreter.

2 Regulations require IJs to ensure that individuals in removal proceedings receive a list of pro bono legal services providers. See

(b), 1240.10(a)(2). The list is maintained by the Executive Office for Immigration Review. Legal services providers must meet a detailed set of requirements to qualify for inclusion. See generally

§§ 1003.61-63. As the amici note, the list of free legal services does not appear in the administrative record, even though Hernandez confirmed that she had received a copy of it. We note that the current version

- 4 - opportunity to find an attorney, and Hernandez responded that she

had an attorney who was not aware of the hearing. The IJ told

Hernandez that her next hearing would take place on October 18 and

that she should have her attorney "enter an appearance as soon as

possible."

On October 18, Hernandez appeared with her attorney, who

entered a limited appearance for the custody and bond proceedings

taking place that day. The IJ denied bond based on a Red Notice

published by the International Criminal Police Organization

("INTERPOL")3 that accused Hernandez of being a gang member.4 The

IJ continued the hearing for a week to October 25 -- without

objection from the attorney for the Department of Homeland Security

("DHS") -- to allow Hernandez's bond attorney time to decide

of the list, which is available online, does not include any lawyers located in New Hampshire, where Hernandez was detained. See EOIR, List of Pro Bono Legal Service Providers (last updated Apr. 2020), https://www.justice.gov/eoir/file/ProBonoMA/download.

3 An INTERPOL Red Notice is "a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action." Red Notices, INTERPOL, https://www.interpol.int/en/How-we-work/Notices/Red- Notices (last visited June 3, 2020). In the United States, an INTERPOL Red Notice alone is not a sufficient basis to arrest the "subject" of the notice "because it does not meet the requirements for arrest under the 4th Amendment to the Constitution." About INTERPOL Washington: Frequently Asked Questions, U.S. Dep't of Justice, https://www.justice.gov/interpol-washington/frequently- asked-questions (last visited June 3, 2020).

4Hernandez denies the allegation; she testified at her merits hearing that she has never belonged to a gang.

- 5 - whether she would continue to represent Hernandez. The IJ ended

the hearing by warning Hernandez that, if she did not have an

attorney by her next hearing, she would "have to speak for

[her]self and represent [her]self."

Hernandez appeared at her hearing the following week

without an attorney. The IJ began by asking her about the status

of her legal representation:

IMMIGRATION JUDGE5 Okay. All right, ma'am, have you been able to find an attorney to help you on your case? HERNANDEZ Yes, I have one. IMMIGRATION JUDGE What's your attorney's name? HERNANDEZ Her name is Laura. She was here. I had a hearing here. IMMIGRATION JUDGE Okay, she was only representing you for your bond request. Have you been able to find someone for your removal proceedings? HERNANDEZ An attorney? IMMIGRATION JUDGE Yes. HERNANDEZ Yes. IMMIGRATION JUDGE Who? HERNANDEZ The same attorney.

5 Throughout this opinion, the headings introducing each person's remarks, quoted from the administrative hearing transcripts, have been shortened for conciseness.

- 6 - After confirming that the attorney's entry of appearance was

limited to the bond hearing and that no other attorney had entered

an appearance for the removal proceedings, the IJ informed

Hernandez that she would have to "speak for [her]self and represent

[her]self" that day.

The IJ proceeded to read Hernandez the allegations in

the Notice to Appear. Following the reading, Hernandez admitted

that she is not a United States citizen, that she is a native and

citizen of El Salvador, and that she entered the United States

without being admitted or paroled. The IJ therefore found

Hernandez removable as charged under section 212(a)(6)(A)(i) of

the Immigration and Nationality Act ("INA"),

(a)(6)(A)(i), for entering the United States without

inspection. The subject of the hearing then shifted to relief

from removal. In response to questions from the IJ, Hernandez

testified that she was afraid of "[t]he gang" in El Salvador. The

IJ determined that she might be eligible for withholding of removal

or CAT relief -- he noted that "asylum is one-year barred"6 -- and

instructed that Hernandez receive a Form I-589, the application

for relief from removal.7 He told Hernandez that her next hearing

6 Subject to a few limited exceptions, an asylum applicant must generally file her claim within one year of entering the United States. See

(a)(2)(B).

7 The I-589 is the application for asylum, withholding of removal, and CAT relief. Even though the one-year filing bar

- 7 - would be in eight days, on November 2, and that she must "fill out

the application completely in English" before then. He also told

her that, if she found a lawyer before the hearing, she should

tell the lawyer to enter an appearance as soon as possible.

On Friday, November 2, Hernandez again appeared without

counsel. When the IJ inquired about the status of Hernandez's

legal representation, she asked for time to find a new lawyer:

[T]he attorney that represented me on my first - on my first hearing, she called me and asked me if she was going to continue to represent me. I said yes, and then she just called me this past Monday telling me that she couldn't represent me anymore. So we've been calling to other attorneys. They say that they cannot take my case from one day to another, so they asked me to ask the judge if they could give me another day for them to review my file to see if they can take my case.

Without asking any further questions about Hernandez's efforts to

find a new lawyer or acknowledging her request for more time, the

IJ told Hernandez that she would "have to speak for [her]self and

represent [her]self." The IJ then questioned Hernandez about her

application for relief from removal:

IMMIGRATION JUDGE All right, about a week ago I gave you an application for asylum and asylum-like relief to file today. Do you have that application today?

precluded Hernandez from applying for asylum (absent a showing that she qualified for an exception) the IJ referred to her application for relief from removal as her "asylum application" throughout the proceedings, presumably for the sake of simplicity.

- 8 - HERNANDEZ Well, I do have the application, but I haven't been able to file it because I asked somebody if they could help me to file it, and they said no because it was too complicated. And then I thought that my attorney was going to file it for me, but then she said she couldn't take my case. So I have it, but it's not filled out. IMMIGRATION JUDGE Do you still want to apply for asylum? HERNANDEZ Yes. IMMIGRATION JUDGE Then why didn't you fill out the application pursuant to my instructions? HERNANDEZ Well, the problem is that I can't write in English and I can't read it, so I couldn't fill it out.

To give Hernandez more time to fill out the application, the IJ

set another hearing for November 8. He instructed Hernandez to

"fill out th[e] application completely in English, consistent with

[his] orders," and told her that if she failed to file her

application on the morning of the next hearing, he might "deem

[her] application . . . abandoned."

The following Thursday, November 8, Hernandez appeared

in immigration court for the fourth time, again without a lawyer.

When the IJ asked Hernandez whether she had been able to find an

attorney, Hernandez responded that her bond attorney had called

her two days earlier to get her permission to turn over her case

file to a new attorney. Hernandez told the IJ that she expected

the new attorney to visit her at the Strafford County Jail either

- 9 - that day or the following day. The IJ told Hernandez that she

would have to "speak for [her]self and represent [her]self" because

she was "only consulting with an attorney" and no lawyer had

entered an appearance.

The IJ then turned to the matter of Hernandez's

application for relief from removal, asking whether she had filled

out the form, as he had instructed her to do. Hernandez explained

that someone at the jail had helped her fill out two pages of the

paperwork and she gave the completed pages to the IJ. But the

person who helped Hernandez had completed the wrong pages.

IMMIGRATION JUDGE All right, ma'am. I don't see your asylum application in here. I do note that at the last hearing, I personally gave you the asylum application. Why don't I have it today? HERNANDEZ The girl who filled out the two papers, she told me that was for asylum. IMMIGRATION JUDGE You have to listen to my instructions. Do you understand me? HERNANDEZ Yes. IMMIGRATION JUDGE I have a statement from you. Does this relate to your fear of return? HERNANDEZ Yes. I told her.

The IJ gave Hernandez another copy of the I-589 and told her that

he was going to schedule a final hearing for November 16, at which

time she would be expected to provide the completed application,

as well as testimony and evidence. The attorney for DHS objected

- 10 - to the continuance and asked the IJ to consider Hernandez's

application for relief from removal abandoned. The IJ declined to

do so; instead, he described to Hernandez the kinds of evidence

she might want to present at her final merits hearing.8

The next day, the new lawyer Hernandez had told the IJ

about visited Hernandez and agreed to represent her. But the

attorney did not accompany Hernandez to the November 16 hearing

because she was still waiting for Hernandez's bond attorney to

turn over her file. At the beginning of the hearing, after

submitting the completed I-589, Hernandez asked the IJ for a

continuance to allow her new attorney to be present. The DHS

attorney stated that the agency would agree to the continuance "if

the next date was for the hearing and not for attorney prep," but

also remarked that such a purpose would be difficult to guarantee.

The IJ agreed with the latter observation, denied Hernandez's

request for a continuance, and told Hernandez that she would have

to "speak for [her]self and represent [her]self" once again. In

his oral order, the IJ explained that "[t]he respondent has been

given over five weeks to find an attorney of her choice, [and]

especially where the respondent is detained the court finds the

8 The IJ told Hernandez that she should be prepared to present witnesses, plus documents "such as police reports, conviction records, restraining orders, country conditions evidence, school records, medical records, property records, or any statements or affidavits from any family, friends, relatives or any other person who knows why you fear return to El Salvador."

- 11 - respondent has failed to show any good cause to continue this

matter any further."9 The IJ proceeded to conduct Hernandez's

merits hearing on her application for withholding of removal and

CAT relief.

B. Hernandez's Claims for Relief from Removal

Responding to questions by the IJ, Hernandez testified

that she was afraid to go back to El Salvador because she had been

threatened by the 18th Street Gang. She explained that her brother

was recruited to join the 18th Street Gang when he was thirteen

years old and that he worked for the gang until he was arrested

and sent to prison at age eighteen. With her brother no longer

available, the gang pressured Hernandez to take over the work he

had been doing. She refused, angering the gang. Hernandez went

to her brother in prison and told him that gang members had been

insisting that she work for them. When Hernandez's brother tried

to intervene on her behalf, gang members beat him.

Gang members also went to Hernandez's aunt's house and

told her that, if Hernandez did not do what the gang asked, her

9 The Executive Office for Immigration Review (EOIR) issues administrative guidance regarding the agency's priorities and goals for the adjudication of immigration court cases. EOIR, "Case Priorities and Immigration Court Performance Measures," at 1 (Jan. 17, 2018), available at https://www.justice.gov/eoir/page/file/ 1026721/download. "EOIR has always designated detained cases as priorities for completion" and thus immigration judges are expected to complete cases involving detained individuals "expeditiously and without undue delay."

.

- 12 - aunt would "find [Hernandez's] head in a river or a mountain."

The IJ asked whether this was something that happened only to

Hernandez and her family or whether it happened "across [her]

neighborhood." Hernandez responded: "It was just my family. And

it all happened because my brother joined the gang because once

one family member joins the gang then they want the whole family

to be involved." Hernandez testified that she did not report the

threats to the police because she knew that, if she did, the gang

members "were going to find out because they always find out when

you accuse them. And if they find out that's when they send

someone and that's when you get killed."

Hernandez also testified that she had suffered physical

abuse at the hands of her ex-partner, with whom she has two

children, but that she does not fear that he would harm her if she

returned to El Salvador. She was able to leave him after the

police arrested him and put a restraining order in place, and they

had lived apart for seven years before she left the country. The

IJ asked Hernandez why she believed that the police or the

government could not protect her from the gangs in El Salvador

when the police had protected her from her ex-partner. Hernandez

responded that "it's different with the gangs" because "over there

they're afraid of the gangs."

At the conclusion of the hearing, the IJ delivered an

oral decision. As an initial matter, the IJ determined that

- 13 - Hernandez was ineligible for asylum because she had neither filed

her application within one year of entering the United States nor

demonstrated circumstances that would qualify her for an exception

to the one-year bar. In the alternative, even assuming that

Hernandez's application was timely, the IJ found that she had not

met the requirements for asylum and thus did not meet the stricter

standards for withholding of removal and CAT relief. Specifically,

although the IJ found Hernandez credible, he concluded that she

failed to demonstrate that her familial connection to her brother

was "one central reason" that the gang singled her out and that,

instead, the gang targeted Hernandez because they wanted to

increase their ranks. In reaching that conclusion, the IJ

erroneously found that Hernandez had testified "that her neighbors

and others were often recruited for . . . similar reasons," when

in fact her testimony was that only her family was targeted. The

IJ also concluded that the police would have protected Hernandez

from the gang if she had reported the threats because the police

had protected her from her ex-partner in the past.

C. Appeal to the BIA

With the assistance of her new lawyer, Hernandez timely

appealed the IJ's decision to the BIA. She also filed a motion to

reopen and remand to the immigration court for a new hearing to

pursue her claims with the assistance of her lawyer. Hernandez

argued that the IJ erred by denying her final request for a

- 14 - continuance. She relied on In re C-B-,

(BIA

2012), the leading BIA decision on the statutory right to counsel,

and cited the right-to-counsel statute, INA § 292,

.

She also pointed to factors that bear upon whether an individual

has been given adequate time to find counsel, including detention

status and English proficiency.10

The BIA affirmed the IJ's denial of Hernandez's request

for a continuance, explaining that Hernandez "did not demonstrate

'good cause' for a continuance," nor "prejudice or a due process

violation." As to "good cause," the BIA explained that "[t]he

Immigration Judge declined to grant [Hernandez's] motion for

continuance after considering that he had already granted her five

continuances to afford her time to obtain counsel and to complete

her asylum application." The BIA further noted that "[o]n the day

of [Hernandez's] merits hearing, [Hernandez] stated she had an

attorney, but she did not submit an entry of appearance form for

this attorney." The BIA concluded that Hernandez "did not make a

10 After oral argument, the government filed a letter under Federal Rule of Appellate Procedure 28(j) attempting to raise for the first time an argument that we lack jurisdiction because Hernandez failed to exhaust her right to counsel claim before the BIA. Rule 28(j) enables a party to apprise the court of "pertinent and significant" legal authority that comes to its attention "after oral argument but before decision," Fed. R. App. P. 28(j), not to introduce new arguments that the party failed to raise in its brief, see Ruskai v. Pistole,

(1st Cir. 2014). In any event, the government's argument is meritless. It is clear that Hernandez raised the right to counsel issue before the BIA.

- 15 - persuasive showing of good cause for her requested continuance

considering the number of continuances she received for th[e]

express purpose" of "obtain[ing] counsel." As to the prejudice

analysis, the BIA found that Hernandez

was provided a reasonable opportunity to present testimony, documents and arguments in support of her applications for relief and protection, and there is no indication that the Immigration Judge's actions amount to a violation of due process. Moreover, the facts [Hernandez] alleges on appeal with the assistance of counsel pertaining to her claims are essentially the same as those she testified to before the Immigration Judge pro se. Additionally, . . . based on [Hernandez's] testimony and other evidence in the record, [Hernandez] has not met her burden to establish her eligibility for the relief requested and thus, she is unable to demonstrate prejudice.

(internal citations omitted).

Hernandez also challenged the IJ's denial of her claims

for relief from removal. The BIA affirmed the IJ's determination

that Hernandez's asylum application was untimely, as well as his

alternative findings that Hernandez failed to prove both that the

government of El Salvador is unable or unwilling to protect her

and that her membership in a particular social group was one

central reason for her alleged persecution.11 Hernandez timely

filed a petition for review of the BIA's decision.

11 Though the BIA recognized that the IJ's factual finding that Hernandez's neighbors were also targeted by the gang was erroneous, it concluded that the error was harmless.

- 16 - II.

Federal law guarantees individuals in removal

proceedings the right to be represented by the counsel of their

choice at no cost to the government.

,

1229a(b)(4)(A). Hernandez argues that the IJ violated her

statutory right to counsel by denying her request for a continuance

and requiring her to represent herself.

A. Standard of Review

We ordinarily review an IJ's denial of a continuance for

abuse of discretion. See, e.g., Alsamhouri v. Gonzales,

(1st Cir. 2007). But a request for a continuance to

permit the respondent to secure her statutory right to counsel is

not the ordinary continuance request. Indeed, the BIA recognizes

this distinction.

Regulations provide generally that an IJ may grant a

respondent's request to continue a hearing "for good cause shown."

, 1240.6. The BIA applies this "good cause"

standard when evaluating IJs' denials of continuances in many

circumstances. See, e.g., In re Villarreal-Zuniga,

(BIA 2006) (respondent sought continuance to

apply for adjustment of status, i.e., collateral relief). But the

BIA has applied a different standard to determine whether the

continuance that a respondent seeks is necessary to ensure that

she is not deprived of the right to retain counsel, to which she

- 17 - is entitled by statute. Indeed, the BIA has held that, absent an

express waiver of the right to counsel, the IJ "must grant a

reasonable and realistic period of time to provide a fair

opportunity for a respondent to seek, speak with, and retain

counsel." In re C-B-,

(emphasis added).

Applying that standard in In re C-B-, moreover, the BIA found that

the IJ's denial of a continuance to allow the respondent to retain

counsel resulted in a denial of the respondent's statutory right

to counsel, sustained the appeal, and remanded for further

proceedings.

. Nor does the government dispute

that a respondent will have been deprived of the statutory right

to counsel if she is denied the time and opportunity to retain an

attorney that In re C-B- requires.

In this case, however, the BIA used the "good cause"

standard, instead of the standard from In re C-B-, to evaluate

whether Hernandez was entitled to the continuance at issue.

Notably, none of the cases that the BIA cited in applying that

standard involved requests for continuances to seek counsel. See

In re L-A-B-R,

(U.S. Att'y Gen. 2018)

(continuances in consolidated cases sought to pursue collateral

relief); In re Villarreal-Zuniga,

(continuance sought to pursue collateral relief); In re Perez-

Andrade,

(BIA 1987) (continuance sought

by counsel when respondents did not appear for scheduled hearing);

- 18 - In re Sibrun,

(BIA 1983) (continuance

sought by counsel to allow more time to gather and present

evidence).

The BIA's decision is far from clear in explaining the

reasons that the BIA did not apply the In re C-B- standard to

assess Hernandez's last continuance request. But, regardless, we

must still decide whether the IJ's denial of Hernandez's last

request for a continuance to find a lawyer, given this record,

resulted in a denial of her statutory right to counsel. We are

bound, as is the BIA, to apply that statutory requirement. Thus,

we must ask, even though the BIA did not, whether the IJ afforded

Hernandez "a reasonable and realistic period of time to provide a

fair opportunity" for her to secure counsel. See In re C-B-,

.

The statutory right to counsel is a fundamental

procedural protection worthy of particular vigilance. In what we

think is a useful analogy, we have determined that a due process

claim in the immigration context presents a legal question subject

to de novo review. See Toribio-Chavez v. Holder,

(1st Cir. 2010). We likewise conclude that Hernandez's claim that

she was denied her statutory right to counsel presents a legal

question warranting plenary review. Accord Montes-Lopez v.

Holder,

(9th Cir. 2012) ("[W]hether the IJ's

denial of a continuance violated Petitioner's statutory right to

- 19 - counsel . . . is a question of law which we review de novo.");12

see also David Hausman & Jayashri Srikantiah, Time, Due Process,

and Representation: An Empirical and Legal Analysis of

Continuances in Immigration Court,

, 1842

(2016) (arguing that "the denial of a continuance to seek

representation should be reviewed de novo"); cf. Leslie v. Attorney

Gen. of U.S.,

(3d Cir. 2010) (reviewing de novo

whether IJ's failure to comply with a regulation was grounds for

a new removal hearing).

B. Analysis

1. Denial of the Right to Counsel

The government asserts that the IJ granted Hernandez

"five continuances" that spanned "over a month" for the sole

purpose of allowing her to obtain counsel. This description of

the relevant time period is inaccurate. The record reveals that

Hernandez had only fourteen business days to find a lawyer after

12 Two courts have treated denials of continuances implicating the right to counsel in immigration cases as ordinary continuance cases, without considering whether a different standard is warranted. Mendoza-Garcia v. Barr,

(6th Cir. 2019) (reviewing denial of continuance that implicated right to counsel for abuse of discretion); Castaneda-Delgado v. INS,

(7th Cir. 1975) (same). Another court employed abuse of discretion review because the petitioner's counsel "stated at oral argument that in order for [the petitioner's] right to counsel to have been violated, the immigration judge must have abused his discretion by denying the continuance request." Ponce- Leiva v. Ashcroft,

(3d Cir. 2003) (emphasis omitted).

- 20 - she understood that she needed a new one. Hernandez's original

attorney had entered a limited appearance for the custody and bond

proceedings, which are "separate and apart from" removal

proceedings,

(d), and the IJ found no indication,

at the October 25 hearing, that the bond attorney had ever intended

to continue representing Hernandez after the bond hearing. Thus,

with respect to the removal proceedings, Hernandez had not actually

had "the privilege of being represented . . . by such counsel,

authorized to practice in such proceedings, as [s]he shall choose,"

; see also

§ 1229a(b)(4)(A), at the point at

which she sought the continuance at issue here. Until October 29,

Hernandez had the mistaken belief that her bond attorney continued

to represent her. Therefore, the relevant period is only the time

between October 29 and Hernandez's merits hearing on November 16.

See Mendoza-Garcia v. Barr,

(6th Cir. 2019)

(holding that the "reasonable and realistic period" of time for

petitioner to find an attorney commenced "after he knew that his

retained counsel would no longer be representing him").

Additionally, the continuances granted on November 2 and

November 8, as the IJ made clear, were for the purpose of allowing

Hernandez time to fill out the asylum application and gather

evidence for her merits hearing and not to secure a lawyer to

represent her. Thus, while she attempted to secure a lawyer during

- 21 - that time, Hernandez also had to struggle on her own with the

paperwork required to pursue her claims for relief.

Importantly, Hernandez was detained throughout her

removal proceedings. Unsurprisingly, data shows that detention

significantly decreases the ability of respondents in immigration

proceedings to obtain counsel. See Ingrid V. Eagly & Steven

Shafer, A National Study of Access to Counsel in Immigration Court,

, 32 (2015) (concluding that, nationally,

people in removal proceedings who are not detained are nearly five

times more likely to obtain counsel than those who are detained).

Detainees' access to phone calls and visits is generally limited,

which hampers their ability to contact and meet with prospective

lawyers.13 See Michael Kaufman, Detention, Due Process, and the

Right to Counsel in Removal Proceedings,

, 127 (2008).

In addition to the constraints imposed by detention,

Hernandez does not speak, read, or write English. A language

13 The detention of immigrants seeking relief from removal creates a tension between the administrative guidance applicable to detained immigrants and the statutory right to counsel. As noted, EOIR requires IJs to process cases where the respondent is detained "expeditiously." EOIR, "Case Priorities and Immigration Court Performance Measures," supra, note 9, at 2. But those are the very same individuals who will find it more difficult to obtain counsel -- a privilege guaranteed to them under federal law, see

, 1229a(b)(4)(A) -- and thus will likely require more time to do so.

- 22 - barrier is apt to further complicate the process of contacting

prospective attorneys. See Castaneda-Delgado v. INS,

(7th Cir. 1975) (considering inability to speak English

among circumstances that would lead to "difficulty in obtaining an

attorney").

Despite the challenges she faced, the hearing

transcripts reveal that Hernandez wanted the help of a lawyer and

diligently sought representation. On Friday, November 2,

Hernandez told the IJ that she had been making calls to attorneys

since discovering on Monday of that week (October 29) that her

bond attorney would no longer represent her. By the next hearing,

on November 8, Hernandez had given her bond attorney permission to

give her "documents" to a new attorney, who planned to visit her

either that day or the next day. A week later, by the time of the

November 16 merits hearing, Hernandez had retained the new lawyer.

Her success within this timeframe reflects as much diligence as

could reasonably be expected in her circumstances. The IJ did not

conclude otherwise. He did not suggest that Hernandez was acting

in bad faith or attempting to game the system by asking for more

time to find a lawyer, and nothing in the record indicates such

motivation.

For the IJ on the day of Hernandez's merits hearing --

the most critical stage of the proceeding -- to cut off Hernandez's

access to an attorney whom she had just retained after much effort

- 23 - makes no sense. Although the IJ reasoned that Hernandez "ha[d]

been given over five weeks to find an attorney of her choice,"

that characterization, as we have explained, is inaccurate, given

Hernandez's mistaken understanding of the scope of her bond

attorney's representation. But even if we accept the relevance of

that five-week time frame, there was no justification for the IJ's

denial of an additional continuance to allow the attorney now

representing Hernandez to be present at a rescheduled merits

hearing when she had used those five weeks to do exactly what the

IJ said she should have been doing -- obtain an attorney.

Moreover, the government did not object to Hernandez's final

request for a continuance. Accordingly, we readily conclude that

the IJ, by denying this request, failed to "meaningfully

effectuate" the statutory right to counsel. See In re C-B-,

.

2. Prejudice

We have not decided in this circuit whether a petitioner

who was improperly denied counsel in immigration proceedings must

demonstrate that the denial resulted in prejudice. Other circuits

are split on the issue.14 The majority approach does not require

14 Five circuits do not require a showing of prejudice, while four do. Compare Montes-Lopez,

(showing of prejudice not required); Leslie,

(same); Montilla v. INS,

(2d Cir. 1991) (same); Castaneda-Delgado,

(same); and Cheung v. INS,

(D.C. Cir. 1969) (same), with Njoroge v. Holder,

, 812

- 24 - a showing of prejudice, reasoning that a denial of counsel so

fundamentally affects a proceeding that prejudice may be assumed.

See, e.g., Montes-Lopez,

("[D]enial of counsel

more fundamentally affects the whole of a proceeding than

ineffective assistance of counsel."); Castaneda-Delgado,

("The deportation proceedings . . . were tainted from their

roots. We refuse to indulge in nice calculations as to the amount

of prejudice flowing from the denial [of counsel], or to apply a

harmless error test." (internal quotation marks omitted)). And In

re C-B- indicates that for a denial of the statutory right to

counsel, as opposed to the denial of a continuance unrelated to

the statutory right to counsel, a petitioner may not need to show

prejudice. In any event, insofar as there is a requirement to

show prejudice, the record inescapably shows that Hernandez was

prejudiced by the denial of her statutory right to counsel.

When faced with a constitutional due process claim in

the immigration context, we ask whether the procedure at issue "is

likely to have affected the outcome of the proceedings" as a

condition of relief. Pulisir v. Mukasey,

(1st

Cir. 2008). Neither the BIA opinion nor the government, in its

briefing to us, indicates that the prejudice showing for the

(8th Cir. 2014) (showing of prejudice required); Ogbemudia v. INS,

(5th Cir. 1993) (same); Farrokhi v. INS,

(4th Cir. 1990) (same); and Michelson v. INS,

(10th Cir. 1990) (same).

- 25 - violation of the statutory right to counsel differs from the

prejudice showing in the context of a due process violation. Thus,

while we are not conducting a constitutional due process analysis,

we proceed under that framework and consider whether the IJ's

denial of Hernandez's statutory right to counsel likely affected

the outcome of the proceedings. That prejudice inquiry necessarily

requires speculation about what would have happened if counsel had

been present. Here, there are critical points in the proceeding

where the assistance of an attorney likely would have changed the

outcome.

In Hernandez's appeal to the BIA with the assistance of

counsel, she argued that the INTERPOL Red Notice identifying her

as a gang member constitutes "changed circumstances" under

(a)(4)(i) that exempt her from the one-year filing bar for

asylum. Relying on the State Department's 2017 Human Rights Report

for El Salvador, Hernandez asserted that the unfounded allegation

that she is a gang member would subject her to persecution by the

El Salvadoran government because the police target suspected gang

members for arrest, detention, and extrajudicial killings. The

BIA suggested that Hernandez had waived the argument because she

failed to raise it before the IJ and, in the alternative, summarily

concluded that Hernandez "has not shown that the issuance of an

arrest warrant to investigate gang-related activity, which [she]

is charged with, constitutes changed circumstances that materially

- 26 - affect her eligibility for asylum." That Hernandez raised this

argument before the BIA when she was represented, but did not do

so before the IJ when proceeding pro se, highlights the difference

that the assistance of a lawyer can make.

Also, a lawyer likely would have corrected the IJ's

erroneous factual finding in his oral ruling that contributed to

his adverse nexus determination. As the BIA recognized, "the

Immigration Judge clearly erred in finding that [Hernandez]

testified that her 'neighbors and others were often recruited [by

the gang] for similar reasons.'" In fact, she testified that it

was "just [her] family" that had been threatened and that it

happened because her "brother joined the gang" and "once one family

member joins the gang then they want the whole family to be

involved." Though an attorney would object to that kind of error

in an oral decision, Hernandez understandably did not do so. A

litigant proceeding pro se may not know that she may object, or

may be intimidated by the prospect of challenging a judge.

That the BIA affirmed the IJ's nexus finding despite

recognizing the IJ's factual error does not affect our assessment

of whether an attorney likely would have changed the outcome in

the proceedings before the IJ. The BIA reviews findings of fact

by an IJ for clear error.

(d)(3)(i). Here, the

BIA "discern[ed] no clear error" in the IJ's nexus finding because

it concluded that there was "insufficient evidence" in the record

- 27 - to show that Hernandez's relationship to her brother was "at least

one central reason" the gang targeted her. But the record in this

case was undeveloped precisely because Hernandez lacked counsel.

Hernandez testified only when responding to questions from the IJ,

and the IJ asked only three questions specifically related to

nexus. An attorney certainly would have focused more attention on

this crucial part of Hernandez's claim. We easily see a likelihood

that the IJ could have reached a different conclusion on nexus

based on a different, fully developed record.

Finally, a lawyer would have marshaled the existing

evidence and adduced additional evidence to support Hernandez's

testimony that the government of El Salvador would not protect her

from the gang. Hernandez testified that, even though she had been

protected from her abusive ex-partner, "it's different with the

gangs" because the police are afraid of them. On appeal, with the

assistance of counsel, Hernandez highlighted the fact that

portions of the State Department's 2017 Human Rights Report are

consistent with her testimony. If Hernandez had been represented

at her merits hearing, her attorney likely would have drawn that

important connection, adduced other country condition evidence to

support Hernandez's testimony and, as Hernandez argues, elicited

more detailed testimony about the reasons Hernandez believes the

El Salvadoran government would not be able to protect her.

- 28 - In short, in light of this prejudice analysis, we

conclude that the assistance of a lawyer likely would have affected

the outcome of Hernandez's removal proceedings. We therefore grant

the petition for review, vacate the order of the BIA, and remand

for further proceedings consistent with this decision.

So ordered.

- Concurring Opinion Follows -

- 29 - LIPEZ, Circuit Judge, concurring. As the panel opinion

notes, the circuits are split on the question of whether a

petitioner must show prejudice to prevail on a claim that her

statutory right to counsel was denied. The five circuits in the

majority recognize that representation by counsel in immigration

proceedings is a statutory right of such significance that a denial

of the right requires no showing of prejudice. By contrast, the

four circuits in the minority treat a denial of the statutory right

to counsel as one type of Fifth Amendment due process violation,

which typically requires a showing of prejudice. I write

separately to explain my view that we should join the majority of

circuits by holding that a showing of prejudice is not required to

succeed on a claim asserting a denial of the statutory right to

counsel.

Courts have long recognized that a "denial of the Sixth

Amendment right to counsel is so inherently prejudicial that there

is no room for the harmless error doctrine." Castaneda-Delgado v.

INS,

(7th Cir. 1975); see also Cheung v. INS,

(D.C. Cir. 1969). Whereas "[a] criminal

defendant who alleges ineffective assistance of counsel must

generally show prejudice," a defendant who was denied access to

counsel need not because a "denial of counsel more fundamentally

affects the whole of a proceeding than ineffective assistance of

counsel." Montes-Lopez v. Holder,

(9th Cir.

- 30 - 2012); see also Castaneda-Delgado,

("When no

lawyer appears to represent the defendant, and his request for

legal representation is wholly denied, the proceedings are tainted

from their roots, and there is no room for 'nice calculations as

to the amount of prejudice' flowing from the denial." (quoting

United States v. Robinson,

(7th Cir. 1974))).

Although there is no Sixth Amendment right to counsel in

immigration proceedings, Avelar Gonzalez v. Whitaker,

(1st Cir. 2018), removal hearings, like criminal trials,

are "fraught with serious consequences." Castaneda-Delgado,

; see also Leslie v. Att'y Gen. of U.S.,

(3d Cir. 2010) ("The right to counsel is a particularly

important procedural safeguard because of the grave consequences

of removal."). Thus, the rationales that support the conclusion

that a criminal defendant who has been denied counsel need not

show prejudice are no less true in the immigration context. See

Montes-Lopez,

; Castaneda-Delgado,

; Cheung,

.15 Indeed, requiring a showing of

15The Second Circuit and Third Circuit take a different approach to reach the no-prejudice rule, relying upon the principle of administrative law that an agency's noncompliance with its own regulations can be "so serious as to be reversible error without a showing of prejudice." Leslie,

(discussing United States ex rel. Accardi v. Shaughnessy,

(1954)) (also discussing Am. Farm Lines v. Black Ball Freight Serv.,

(1970), for contrary proposition); see also Montilla v. INS,

(2d Cir. 1991) (same).

- 31 - prejudice when a respondent has been denied access to counsel runs

counter to the basic notion that the assistance of counsel in

adversary proceedings is essential. See United States v. Cronic,

(1984).

As the Ninth Circuit observed, and as this case

illustrates, "the absence of counsel can change [a respondent's]

strategic decisions, prevent him or her from making potentially-

meritorious legal arguments, and limit the evidence the

[respondent] is able to include in the record." Montes-Lopez,

. In immigration proceedings, just as in criminal

proceedings, prejudice from a denial of counsel is so likely "that

case-by-case inquiry into prejudice is not worth the cost."

Strickland v. Washington,

(1984); accord Mickens

v. Taylor,

(2002).

The circuits that do require a showing of prejudice

provide no compelling explanation for their position. Indeed, the

decisions of those circuits do not engage with the principles of

law underlying the majority view that a showing of prejudice should

not be necessary in the right-to-counsel context. Instead, they

examine alleged violations of the right to counsel more generically

as a matter of procedural due process, thereby failing to recognize

the distinctive nature of the statutory right to counsel, with its

Sixth Amendment antecedents. See Njoroge v. Holder,

(8th Cir. 2014) ("In certain circumstances, depriving an alien

- 32 - of the right to counsel may rise to the level of a [Fifth Amendment]

due process violation." (quoting Al Khouri v. Ashcroft,

(8th Cir. 2004)); see also Ogbemudia v. INS,

(5th Cir. 1993); Farrokhi v. INS,

(4th Cir. 1990); Michelson v. INS,

(10th Cir.

1990).

Importantly, the BIA itself does not require a showing

of prejudice when there is a denial of the statutory right to

counsel. In In re C-B-,

(BIA 2012), the right-

to-counsel continuance case discussed in the panel opinion, the

BIA sustained the respondent's appeal based on a denial of the

statutory right to counsel without a prejudice finding,

. Yet, inexplicably, the BIA's decision on Hernandez's

appeal in this case relies on In re Villarreal-Zuniga,

(BIA 2006), for the proposition that "[a] decision to

deny a motion for continuance will not be reversed unless the

[respondent] establishes that the denial caused her actual

prejudice and harm, and materially affected the outcome of her

case." In my view, this insistence on a prejudice showing when

the statutory right to counsel was at stake was another legal error

by the BIA.

Given the fundamental importance of the statutory right

to counsel in immigration proceedings, and given the absence of

any requirement to show prejudice by the BIA in its own statutory

- 33 - right to counsel case law, I see no reason to defer a decision to

join the majority of circuits in concluding that no showing of

prejudice is required when a petitioner establishes a denial of

the statutory right to counsel.

- 34 -