NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAUL PABLO, AKA Mario Pablo Calmo, No. 17-72107 17-73485 Petitioner, Agency No. A205-023-841 v. WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 4, 2020 San Francisco, California Before: SILER,** WARDLAW, and M. SMITH, Circuit Judges. Raul Pablo Calmo, a native and citizen of Guatemala, petitions for review of the order of the Board of Immigration Appeals (BIA) affirming the Immigration Judge (IJ)’s denial of his applications for asylum, withholding of removal, and Convention Against Torture relief. He separately petitions for review of the BIA’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We grant the first petition because the IJ failed to ascertain whether Pablo was aware of the availability of pro bono legal services in violation of applicable regulations, and the BIA further erred by overlooking this violation. Respondents in removal proceedings have a statutory right to counsel. 8 U.S.C. § 1362. In furtherance of this statutory right, regulations require the IJ to “advise the respondent of the availability of pro bono legal services . . . and ascertain that the respondent has received a list of such pro bono legal service providers.” 8 C.F.R. § 1240.10(a)(2); 8 C.F.R. § 1003.61(b) (The “List of Pro Bono Legal Service Providers . . . shall be provided to individuals in removal and other proceedings before an immigration court.”). Where the IJ fails to adhere to these requirements, the petitioner is entitled to a new removal hearing without any separate showing of prejudice. See Montes-Lopez v. Holder, 694 F.3d 1085, 1093 (9th Cir. 2012); see also Zuniga v. Barr, 946 F.3d 464, 471 n.10 (9th Cir. 2019). Although Pablo was previously represented by counsel, he was unrepresented at his final hearing, the critical stage of proceedings when the substance of his case was at issue. Yet the IJ never advised Pablo of the availability of free legal services nor verified that Pablo had received the List of Pro Bono Legal Services Providers. This failure was stark in light of Pablo’s clear statement to the IJ that he was proceeding on his own only because he could not 2 afford an attorney. In these circumstances, the IJ’s failure to advise Pablo of the availability of free legal services effectively denied him the statutory right to counsel. Cf. Picca v. Mukasey, 512 F.3d 75, 78–79 (2d Cir. 2008) (remanding case where the IJ failed to advise an indigent petitioner of the availability of free legal services after his attorney withdrew). Under binding circuit precedent, this ...
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