CA9 on Right to Counsel: Montes-Lopez v. Holder

"Petitioner Mario Montes-Lopez, a native and citizen of El Salvador, petitions for review of an order of removal. Petitioner’s attorney failed to appear at a scheduled merits hearing before an Immigration Judge (“IJ”) because his license to practice law had been temporarily suspended. The Immigration Judge found that Petitioner may have learned of his attorney’s suspension as much as eleven days before the hearing, and concluded that Petitioner was not diligent in bringing his attorney’s suspension to the attention of the court. He denied Petitioner’s motion to continue, proceeded with the hearing with Petitioner unrepresented by counsel, and denied Petitioner’s application for asylum.  We conclude that the Petitioner’s right to be represented in the proceedings by retained counsel, established under 8 U.S.C. § 1362 and related regulations, was violated. We also conclude that a petitioner so denied his right to counsel in an immigration proceeding is not required to demonstrate actual prejudice in order to obtain relief. We therefore grant the petition and remand for further proceedings." - Montes-Lopez v. Holder, Sept. 18, 2012.  [Hats off to Bob Jobe!]

- Robert B. Jobe