9th Circuit Vents at Immigration Panel

With a ballooning caseload of immigration appeals clogging the 9th Circuit's docket, a three-judge panel castigated unscrupulous lawyers and a sloppy administrative panel in a case in which a Mexican immigrant didn't even know who his lawyer was but was still told to leave the country. Lawyers say such oversights are common in the immigration appeals process. Ninth Circuit Judge Stephen Reinhardt also ruled that immigrants may stay in the country while appealing a ruling ordering them to leave.

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With a ballooning caseload of immigration appeals clogging the 9th Circuit’s docket, a three-judge panel castigated unscrupulous lawyers and a sloppy administrative panel in a case in which a Mexican immigrant didn’t even know who his lawyer was — but was still told to leave the country. In a 25-page decision, Judge Stephen Reinhardt took umbrage with a Board of Immigration Appeals panel’s disregard for a central claim of the man’s appeal. Writing for a unanimous panel that included Judge Sidney Thomas and 8th Circuit Senior Judge Donald Lay, sitting by designation, Reinhardt also ruled that immigrants may stay in the country while appealing a ruling ordering them to leave. The case began in 1998, Reinhardt wrote, when Jose Barroso sought legal immigration status by making “the ill-fated choice of retaining Abad ‘Nork’ Cabrera,” an L.A. consultant posing as an attorney. “These people, also called ‘notarios,’ are notorious in Southern California for preying on immigrants,” Reinhardt wrote. In Barroso’s home state, the word “notario” refers to a lawyer who “must have practiced law for at least five years and pass a ‘famously difficult’ exam,” Reinhardt wrote in a footnote. But in Los Angeles, “notario” generally means something more like an unlicensed entrepreneur who tells you to file a futile asylum petition so he can bill you. According to a 2004 story in the Los Angeles Times, the asylum-petition scam is widespread in Southern California, and Barroso fell prey to it. “This advice was inexplicable, given that Barroso had no fear of returning to Mexico,” Reinhardt wrote. “The consequence of this advice, however, was that he came to the attention of the Immigration and Naturalization Service.” In a series of proceedings initiated by the INS, the notario hired a conga line of lawyers for Barroso who routinely failed to make court appearances and file documents on time. None of them spoke Spanish, and all along, Reinhardt wrote, Barroso thought Cabrera, the notario, was his attorney. The situation was finally too much for an immigration judge, who was frustrated with the ongoing motions for continuance filed by Barroso’s lawyers and skeptical of Barroso’s claim that he was kept unaware of upcoming hearing dates. The judge forced Barroso to testify in court without legal representation. His new lawyer had not come to court that day because he had expected the case to be delayed once again. The judge then ordered Barroso to voluntarily leave the United States; Barroso asked for reconsideration on the grounds that his lawyers were incompetent. But the Board of Immigration Appeals denied his application without addressing that issue. “Inexplicably, the BIA did not address Barroso’s claim that he was denied his right to counsel of his choice,” Reinhardt wrote. Immigration lawyers say such oversights — by attorneys and the courts — are common in the immigration appeals process. “It’s just outrageous, and that’s compounded by an immigration court system that puts tremendous pressure on these judges” to dispose of cases, said Marc Van Der Hout, a San Francisco lawyer who represents immigrants. He said that without the right to a court-appointed attorney in the immigration courts, immigrants should at least be afforded time to find effective pro bono assistance. Lucas Guttentag, a lawyer who heads the ACLU’s Oakland, Calif.-based Immigrants’ Rights Project, agreed. “A fundamental defect in the entire immigrant removal process is the absence of court-appointed counsel,” he said. As a result, he and Van Der Hout said, unscrupulous notarios and lawyers can easily take advantage of immigrants. “The person is going to be deported if you commit malpractice and can’t go after you,” said Van Der Hout. Reinhardt’s opinion in Barroso v. Gonzalez, 05 C.D.O.S. 9828, does not rule on the issue of whether Barroso was improperly denied choice of counsel since the lower court failed to rule on the issue. “Although it appears that Barroso may well have been denied his statutory right to counsel, it is not for us to determine this question in the first instance,” Reinhardt wrote. Instead, he ordered the BIA to decide the matter. A spokesman for the Justice Department’s Civil Division — which handled the case — did not return a phone call by press time.

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