Ninth Circuit Notes Split Re: Whether a Showing of Prejudice is Required When Petitioner Has Been Denied Right to Counsel in a Removal Proceeding

Per Lopez Rizo v. Gonzales, 2007 WL 412029 (9th Cir. Feb. 01, 2007):

Aliens in deportation proceedings are guaranteed the right to counsel of their choice. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004); see also 8 U.S.C. § 1362. "Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings." Tawadrus, 364 F.3d at 1103 (citing RiosBerrios v. INS, 776 F .2d 859, 862 (9th Cir.1985)). For the Lopezes to proceed in their appeal pro se, the BIA was required to obtain a knowing and voluntary waiver of their right to counsel. Id. at 1103. As the BIA obtained no such waiver, the Lopezes' due process right to counsel was denied.

To the extent that prejudice is a required element of the due process violation, [FN2] the Lopezes can successfully demonstrate that unknowingly proceeding through the appeals process in their case without counsel "potentially affected the outcome of the proceedings." Colmenar, 210 F.3d at 972 (alteration omitted) (quoting Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999)).

FN2. This court has yet to decide whether a showing of prejudice is required when a petitioner has demonstrated denial of the right to counsel in removal proceeding, and there is a circuit split on the question. See Baltazar -Alcazar v. INS, 386 F.3d 940, 947 (9th Cir.2004).