Case o' The Week: Biwot & Right to Counsel in Removal Proceedings

This important win in the difficult immigration context affirms an alien's right to counsel in removal proceedings. Strong language in the decision will also help in Section 1326 (illegal reentry) challenges. Biwot v. Gonzales, __ F.3d __, 2005 WL 851219 (9th Cir. April 14, 2005) is available here.


Players: A great decision by Judge Margaret McKeown. Important pro bono litigation by Heller Ehrman associate Ryan McBride.

Facts: Jona Biwot was a Kenyan in the US on a student visa. A dorm brawl lead to his conviction for third degree assault. The INS charged him with failing to maintain his student status. Id. at *1. At the removal hearing, the Immigration Judge ("I.J.") gave him five days to get counsel – one of which was a national holiday (ironically, July 4th), and two of which were the weekend. He went back to the IJ, asked for time to get counsel, and got a very brief continuance. When, despite good faith efforts, Biwot didn’t have counsel at that hearing the IJ forced him to speak for himself and found him removable; Biwot waived review "because I cannot do anything right now." Id. at *2.

Issue(s): "The issue we address is whether Biwot was denied his right to counsel when the . . . IJ allowed Biwot, who was incarcerated and diligently seeking representation, only five working days to obtain counsel." Id. at *1.

Held: "We conclude that Biwot was denied his statutory right to counsel and, accordingly, we grant the petition in part and remand to the BIA with instructions to remand to the IJ." Id. at *1.

Of Note: Biwot is replete with bon mots to use in § 1326 (illegal reentry) challenges. McKeown digs back a half century for Supreme Court authority to bolster her broad language recognizing the right to counsel in deportation proceedings. Id. at *3. As she correctly explains, "The proliferation of immigration laws and regulations has aptly been called a labyrinth that only a lawyer could navigate." Id. The case also refuses to set forth a bright-line test on what constitutes "reasonable time" to obtain counsel – instead emphasizing a number of equitable factors. Id. Finally, the case has wonderful "waiver of review" analysis – the Court recognizes that without counsel that waiver may be meaningless: "Although IJs may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must inquire whether the petitioner wishes counsel, determine a reasonable time for obtaining counsel, and assess whether any waiver of counsel is knowing and voluntary." Id. at *5.

How to Use: Obviously, in a § 1326 where an alien had some claim for relief and was not given a fair chance to obtain counsel, Biwot will be a critical decision. Note the decision’s favorable discussion of Rios-Berrios, where an alien’s transfer to a distant district hampered his attempt to obtain counsel. Id. *3. Less obviously, Biwot feeds in beautifully to the Morales-Izquierdo challenges that we’ve been bringing in § 1326 cases involving reinstatement of deportations– the decision suggests a trend in the Ninth towards increased due process protections for aliens in immigration proceedings. See blog in archives here. Finally, we have discussed defense challenges to the horrific INA § 238 proceedings, (8 USC § 1228(b)) –"administrative orders" – where agg felons can be repeatedly deported without ever having seen an IJ. Biwot has wonderful language to fuel that challenge.

For Further Reading: This is a righteous win for Heller Ehrman associate Ryan McBride. See bio here. Ryan is an antitrust lawyer who took this case pro bono. Law firm partners who wonder if their pro bono commitment is worth the expense should read Biwot. This decision will have a broad impact for hundreds of aliens fighting removal, but will also help many criminal defendants fighting illegal reentry charges. Moreover, aliens fighting deportation may be the most poorly-represented class of litigants in the U.S.; few can afford counsel, and free immigration services are swamped with requests. Heller’s willingness to take this case, and Ryan’s hard-fought win, deserve thanks from the defense bar.

Steven Kalar, Senior Litigator ND Cal Federal Public Defender, website available here.