FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VICTOR MANUEL PEREZ, AKA No. 16-71918 Victor Perez, Petitioner, Agency No. A087-446-901 v. WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 14, 2019 Vacated October 7, 2019 Resubmitted April 20, 2020 Pasadena, California Filed April 27, 2020 2 PEREZ V. BARR Before: Consuelo M. Callahan and Andrew D. Hurwitz, Circuit Judges, and Edward R. Korman, * District Judge. ** Opinion by Judge Callahan SUMMARY *** Immigration / Pro Bono Compensation The panel denied petitioner’s request for compensation at government expense of his court-appointed pro bono counsel in a petition for review of the Board of Immigration Appeals’ denial of relief from removal, holding that there is no authority, including under the federal habeas statutes, the All Writs Act, and the Criminal Justice Act, requiring the government to compensate counsel for mentally incompetent petitioners in petitions for review under 8 U.S.C. § 1252(a). Petitioner contended that because the Suspension Clause requires petitions for review under the REAL ID Act to serve as the functional equivalent of habeas petitions, the court can and should exercise its authority to appoint government- * The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. ** Pursuant to Ninth Circuit General Order 3.2.h, Judge Hurwitz was drawn by lot to replace our late colleague Judge Raymond T. Fisher. Judge Hurwitz has reviewed the record and briefs in this case and listened to the oral argument before the prior panel. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PEREZ V. BARR 3 compensated counsel under the Criminal Justice Act, 18 U.S.C. § 3006A, and other provisions of federal law that allow the court to do so in certain habeas petitions. The panel agreed that a petition for review, in order to serve as an acceptable habeas substitute, must provide the petitioner a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law. The panel also assumed that there may be cases in which a mentally incompetent petitioner requires the assistance of counsel to seek meaningful review of a removal order, and that appointment of counsel may be necessary in such cases. However, the panel held that the Suspension Clause does not require government compensation of court-appointed counsel, at least as long as the court can obtain the assistance of competent pro bono counsel. The panel recognized that the All Writs Act, 28 U.S.C. § 1651(a), provides this court with the inherent authority to appoint counsel when necessary to the exercise of its judicial function, but reasoned that the authority to appoint counsel is not coextensive with the authority to order compensation of such counsel, which is a specific imposition on the public fisc. The panel ...
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