Maurice Achola v. Jefferson Sessions, III

Case: 16-60548 Document: 00514294210 Page: 1 Date Filed: 01/04/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-60548 FILED Summary Calendar January 4, 2018 Lyle W. Cayce Clerk MAURICE ACHOLA, also known as Maurice Agar Achola, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 227 331 Before KING, ELROD, and HIGGINSON, Circuit Judges. PER CURIAM: * Maurice Achola, a native of Kenya and citizen of Kenya and Jamaica, petitions for review of the denial by the Board of Immigration Appeals (BIA) of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Achola, who proceeded pro se throughout his proceedings before the immigration judge, first argues through counsel that his due process rights were violated when the immigration judge informed him * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 16-60548 Document: 00514294210 Page: 2 Date Filed: 01/04/2018 No. 16-60548 of his right to counsel during a group hearing and failed to state that the legal services list with which he was provided contained information about free assistance. Achola also argues that the actions of the immigration judge constituted a per se due process violation, which did not require a showing of prejudice on his part. Purely legal issues, including whether an immigration proceeding comports with due process, are reviewed de novo. Ojeda-Calderon v. Holder, 726 F.3d 669, 672 (5th Cir. 2013). Aliens in removal proceedings are entitled to due process. See Manzano-Garcia v. Gonzales, 413 F.3d 462, 470 (5th Cir. 2005). While an alien has no Sixth Amendment right to counsel in an immigration proceeding, it is possible for “the absence of an attorney [to] create a due process violation if the defect impinged upon the fundamental fairness of the hearing in violation of the fifth amendment, and there was substantial prejudice.” Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993) (internal quotation marks and citation omitted). Congress provided that an alien has a right to obtain counsel at his own expense. Id.; see 8 U.S.C. § 1362. The corresponding regulations provide that an immigration judge must advise an alien “of his or her right to representation, at no expense to the government,” and to advise the alien “of the availability of pro bono legal services for the immigration court location at which the hearing will take place, and ascertain that the [alien] has received a list of such pro bono legal service providers.” 8 C.F.R. § 1240.10(a)(1), (2). Achola provides no authority for his assertion that due process is per se violated when an immigration judge addresses a group of aliens at a master calendar hearing nor does he allege that, in this instance, the immigration judge ...

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