Bacilio-Gutierrez v. Ashcroft

121 F. App'x 696

Opinion

MEMORANDUM

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Angel Bacilio-Gutierrez and Luz Maria Medrano, husband and wife, and her minor son (his stepson) Oscar Demian MartinezMedrano are natives and citizens of Mexico (hereinafter “petitioners”). Petitioners request review of an order of the Board of Immigration Appeals, which affirmed the denial of their applications for cancellation of removal under 8 U.S.C. § 1229b(b)(l). Petitioners claim a denial of due process of law because they were not required by the Immigration Judge to state explicitly whether they desired representation as required by 8 C.F.R. § 1240.10(a)(1).

We grant the petition for review and reverse. The Immigration Judge did not satisfy the explicit requirement that a party in a removal proceeding “state then and there whether he or she desires representation.” Id. Although the Immigration Judge demonstrated a highly conscientious regard for the petitioners’ rights throughout the previous proceedings, the Immigration Judge failed to comply with the regulations at the final hearing on the merits. Assuming that prejudice is required, we find prejudice because, with the assistance of counsel, the petitioners may be able to demonstrate eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(l). See Baltazar-Alcazar v. INS, 386 F.3d 940, 947-48 (9th Cir.2004).

Because we find that petitioners’ right to counsel in a removal proceeding has been violated, we grant the petition for review, reverse the order of the Board, and remand for further proceedings consistent with this memorandum.

PETITION FOR REVIEW GRANTED; REVERSED AND REMANDED.

This disposition, is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.