Garcia Landa v. Holder

391 F. App'x 660

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 6, 2010
• Docket: 06-71931
• Status: Unpublished

Opinion

MEMORANDUM **

Maria Guadalupe Garcia Landa, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ denial of her application for cancellation of removal. See 8 U.S.C. § 1229b(b)(l). We grant the petition.

When Garcia appeared before the Immigration Judge, he denied a continuance because her attorney, who had sent notice that illness prevented her appearance, had not provided sufficient evidence or notice of inability to attend. The IJ then effectively required Garcia to proceed without counsel, and did not even inquire into her desires in that respect or into her ability to represent herself.

Our review of the record makes it plain that in so doing the IJ deprived Garcia of her statutory right to counsel. See 8 U.S.C. § 1229a(b)(4)(A); 8 U.S.C. § 1362; Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1080 (9th Cir.2007); Hernandez-Gil v. Gonzales, 476 F.3d 803, 806-08 (9th Cir.2007); Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir.2005). We have not previously decided whether an alien must show prejudice when deprived of counsel, 1 and we need not do so here because it is plain that Garcia found herself without counsel at the last minute, was not a fluent English speaker, did not understand the nature of the proceedings, and certainly was not schooled in the complexities of the law. 2 The record shows that the outcome of the proceeding was potentially affected. See Biwot, 403 F.3d at 1100. Garcia has shown prejudice, and we must, therefore, remand for further proceedings whereat she has an opportunity to properly present her case with the aid of counsel.

Because of our resolution of the above issue, we need not and do not decide whether we have jurisdiction over the appeal of the denial of Garcia’s motions to reopen, or whether upon the BIA’s earlier remand to the IJ 3 further evidence should have been taken.

Petition GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 .See Mendoza-Mazariegos, 509 F.3d at 1084-85; He rnandez-Gil, 476 F.3d at 808.

2 . See Hernandez-Gil, 476 F.3d at 809-10; Baltazar-Alcazar v. INS, 386 F.3d 940, 948-49 (9th Cir.2004).

3 . That was done due to one of our decisions, which has since been overruled. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir.2004), overruled by Lolong v. Gon zales, 484 F.3d 1173, 1178 (9th Cir.2007) (en banc).