Eladio Gomez-Velazco v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELADIO GOMEZ-VELAZCO, Nos. 14-71747 Petitioner, 14-73303 v. Agency No. A205-829-885 JEFFERSON B. SESSIONS III, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Department of Homeland Security Argued and Submitted July 14, 2017 Portland, Oregon Filed January 10, 2018 Before: Paul J. Watford and John B. Owens, Circuit Judges, and Gloria M. Navarro,* Chief District Judge. Opinion by Judge Watford; Dissent by Judge Navarro * The Honorable Gloria M. Navarro, Chief United States District Judge for the District of Nevada, sitting by designation. 2 GOMEZ-VELAZCO V. SESSIONS SUMMARY** Immigration The panel denied Eladio Gomez-Velazco’s petitions for review from the Department of Homeland Security’s final administrative order of removal under 8 U.S.C. § 1228(b), concluding that Gomez-Velazco’s due process claim, based on his contention that he was denied the right to counsel, failed because he made no showing of prejudice. Gomez-Velazco argued that DHS officers violated his right to counsel by pressuring him to concede removability without advice of counsel in his proceedings under 8 U.S.C. § 1228(b), a form of summary removal proceedings in which he did not have a hearing before an immigration judge. The panel concluded that it had jurisdiction to review Gomez- Velazco’s constitutional claim and assumed, without deciding, that the officers’ conduct violated his right to counsel. The panel held that Gomez-Velazco was required to show prejudice in order to prevail on his claim, rejecting his contention that, in the context of a due process violation based on the denial of the right to counsel, prejudice should be conclusively presumed and automatic reversal should follow. The panel concluded that, at least in cases like that of Gomez-Velazco, where an individual is in administrative removal proceedings under 8 U.S.C. § 1228(b), does not waive the 14-day waiting period for judicial review, and is ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GOMEZ-VELAZCO V. SESSIONS 3 allowed to consult with counsel before the removal order is executed, a showing of prejudice is required. The panel further concluded that Gomez-Velazco failed to establish prejudice. Dissenting, Chief District Judge Navarro wrote that she would grant the petition for review and vacate the final administrative order of removal. Judge Navarro would first make the distinct finding that Gomez-Velazco’s right to counsel was violated, and would hold that no prejudice is required to vacate the order, and that even if prejudice were required, Gomez-Velazco demonstrated sufficient prejudice. COUNSEL Navid David Shamloo (argued), Portland, Oregon, for Petitioner. Leslie McKay (argued) and Blair T. O’Connor, Assistant Directors; Juria L. Jones, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice Washington, D.C.; for Respondent. 4 GOMEZ-VELAZCO V. SESSIONS OPINION WATFORD, Circuit Judge: Under the Immigration and Nationality Act, the Department of Homeland Security (DHS) can seek to remove non-citizens from the United States through several different means. The most ...

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