U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS LIT./York Co. Prison/YOR

3400 Concord Road
York, PA 17402

Name:D-MR-

A--596

Date of this notice: 9/10/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Greer, Anne J.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: A-M-R-D-, AXXX XXX 596 (BIA Sept. 10, 2015)

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Macdonald, Morgan G.
Capital Area Immigrants' Rights Coalition
1612 K Street NW, Suite 204
Washington, DC 20006

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U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 J

File: 596-York,PA
In re:

Date:

SEP l O 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Morgan G. Macdonald, Esquire
ON BEHALF OF DHS:

Jeffrey T. Bubier
Senior Attorney

CHARGE:
Notice: Sec.
Sec.

237(a)(l )(B), I&N Act [8 U.S.C. 1227(a)(l )(B)]In the United States in violation oflaw
237(a)(2)(A)(i),I&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted ofcrime involving moral turpitude

APPLICATION: Asylum; withholding ofremoval; Convention Against Torture

The respondent, a native and citizen of Argentina, has timely filed an appeal of an
Immigration Judge's decision dated March 30, 2015. The Immigration Judge found the
respondent removable as charged, denied her applications for asylum and withholding of
removal pursuant to sections 208 and 241(b)(3) of the Immigration and Nationality Act (the
"Act"), 8 U.S.C. 1158 and 1231(b)(3), respectively, and protection under the Convention
Against Torture pursuant to 8 C.F.R. 1208.16(c)(2), and ordered the respondent removed. On
appeal, the respondent contests the denial of all three forms of relief. The appeal will be
sustained, and the record will be remanded to the Immigration Judge for further proceedings and
for the entry ofa new decision.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood offuture events,under a "clearly erroneous" standard. 8 C.F.R.
1003.l (d)(3)(i); see also Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other
issues,including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
On appeal, the respondent asserts that she was deprived of the privilege of counsel in these
proceedings. We agree.
Respondents in immigration proceedings have the statutory and regulatory "privilege of
being represented" by counsel of their choice at no expense to the Government. See sections
240(b)(4)(A), 292 of the Act, 8 U.S.C. 1229a(b)(4)(A), 1362. See also 8 C.F.R.
1003.16(b), 1240.3, 1240.lO(a), 1240.1 l (c)(l)(iii). In order to meaningfully effectuate the
Cite as: A-M-R-D-, AXXX XXX 596 (BIA Sept. 10, 2015)

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M911DIIIII a.k.a.

Amlllll596
privilege, the Immigration Judge must grant a reasonable and realistic amount of time and
provide a fair opportunity for a respondent to seek, speak with, and retain counsel. See Matter of
C-B-, 25 I&N Dec. 888, 889-90 (BIA 2012); see also sections 239(a)(l)(E) and 239(b)(l ) of the
Act, 8 U.S.C. 1229(a)(l)(E), (b)(l).

While we fmd the violation ofthe regulation above sufficient to warrant remand, we further
observe that at her initial hearing, the Immigration Judge inquired as to whether the respondent
wished additional time to seek a lawyer, but did not receive an affirmative response. In order for
a waiver ofthe privilege oflegal representation to be valid, an Innnigration Judge must generally
(1) inquire specifically as to whether a respondent wishes to continue without a lawyer, and
(2) receive a knowing and voluntary affirmative response. Matter ofC-B-, supra, at 890 n.1. In
this case, the respondent stated that she did not have enough money for a lawyer but that she
"need[ed] an attorney for a bond," and the Immigration Judge then proceeded with the hearing
(Tr. at 2). We find this statement insufficient to show a "knowing and voluntary affirmative
response" to the question of whether the respondent wished to obtain a lawyer, and thus
insufficient to constitute a waiver of the respondent's privilege oflegal counsel. See also Leslie
v. Att'y Gen. of the U.S., supra, at 174 (observing that when the Immigration Judge asked the
alien ifhe wished to seek counsel, he simply responded "I don't have the money, Sir").
Although the respondent had two additional hearings before she was ordered removed, the
only mentions that the Immigration Judge appears to have made regarding counsel at those
hearings were observations and inquiries as to whether the respondent had an attorney, and an
additional advisal of her right to one (Tr. at 15, 18). There apparently were no further inquiries
as to whether the respondent might be able to show reasonable cause for an additional
continuance to try to obtain a lawyer for free.
Therefore, we fmd that a remand is required for the Immigration Judge to ensure compliance
with the regulations promulgated to protect an alien's privilege of being represented by counsel
2
Cite as: A-M-R-D-, AXXX XXX 596 (BIA Sept. 10, 2015)

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As observed by the United States Court of Appeals for the Third Circuit, "Regulation
8 C.F.R. 1240.10(a)(2)-(3) requires that '[i]n a removal proceeding, the immigration judge
shall' '[a]dvise the respondent of the availability of free legal services provided by
organizations and attorneys .. . located in the district where the removal hearing is being held[,]'
and '[a]scertain that the respondent has received a list of such programs[.]' 8 C.F.R.
1240.10(a)(2)-(3)." Leslie v. Att'y Gen. of the U.S., 611 F.3d 171, 180 (3d Cir. 2010)
(alteration in original). We conclude that the Immigration Judge at the respondent's fust hearing
did not sufficiently comply with these requirements. Notably, the Immigration Judge did not
advise the respondent that she might be able to obtain free legal representation, but simply asked
her at the hearing's outset whether immigration officers had provided her "the free lawyer list"
(Tr. at 1). Moreover, the Immigration Judge did not ascertain whether any list provided to the
respondent was the correct one (i.e., one containing organizations and attorneys located in the
district where the removal hearing was being held). The violation of this regulation renders the
Immigration Judge's decision invalid. See Leslie v. Att'y Gen. of the U.S., supra (holding that an
Immigration Judge's failure to inform an alien of the availability of free legal services, in
violation of immigration regulations, violated due process and rendered the removal order
invalid, without regard to the alien's ability to demonstrate prejudice).

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596
of his or her choice at no expense to the government. In light of this remand for a new hearing,
we do not reach the respondent's additional appellate arguments at this time.
Accordingly,the following orders will be entered.

FURTHER ORDER: The record will be remanded to the Immigration Judge for further
proceedings and for the entry ofa new decision.

3
Cite as: A-M-R-D-, AXXX XXX 596 (BIA Sept. 10, 2015)

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ORDER: The appeal is sustained.