FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BALDEMAR ZUNIGA, No. 16-72982 Petitioner, Agency No. v. A089-247-110 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Immigration Judge’s Decision Argued and Submitted May 17, 2019 Seattle, Washington Filed August 20, 2019 Before: Andrew J. Kleinfeld and Michelle T. Friedland, Circuit Judges, and William H. Pauley III, * District Judge. Per Curiam Opinion * The Honorable William H. Pauley III, United States District Judge for the Southern District of New York, sitting by designation. 2 ZUNIGA V. BARR SUMMARY ** Immigration The panel granted Baldemar Zuniga’s petition for review of an immigration judge’s decision affirming an asylum officer’s negative reasonable fear determination in expedited removal proceedings, and remanded, holding that non- citizens subject to expedited removal under 8 U.S.C. § 1228 have a statutory right to counsel in reasonable fear proceedings before immigration judges, and that the immigration judge deprived Zuniga of his right to counsel by failing to obtain a knowing and voluntary waiver of that right. The panel rejected the government’s argument that there is no statutory right to counsel in reasonable fear proceedings. The panel explained that 8 U.S.C. § 1228, which governs expedited removal proceedings for non- citizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. The panel further explained that other subsections of § 1228 reinforce that right by requiring that proceedings for the removal of criminal non-citizens be conducted in conformity with § 1229a, which in turn provides a statutory right to counsel in ordinary removal proceedings, and directing the government to take reasonable efforts not to impair an individual’s access and right to counsel when considering whether to detain non- ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ZUNIGA V. BARR 3 citizens. The panel also stated that the broader legislative context outside of the specific provisions dealing with expedited removal proceedings for criminal non-citizens also supports the conclusion that there is a right to counsel in reasonable fear proceedings. The panel rejected the government’s contention, which relied on a 1999 memo from the Executive Office for Immigration Review interpreting 8 C.F.R. § 208.31, that IJs have discretion to decide whether a non-citizen may be represented by counsel. The panel noted that the government was correct that the regulations specify only that non-citizens may be represented by counsel in the initial reasonable fear interview before an asylum officer, and that they are silent as to representation by counsel in the review hearing before the IJ, but the panel concluded that deference to EOIR’s interpretation of that silence was not warranted because its interpretation conflicted with the plain text of 8 U.S.C. § 1228. The panel held that the IJ violated Zuniga’s Fifth Amendment right to due ...
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