Kohn v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: May 13, 2020
• Docket: 18-3612
• Status: Unpublished

Opinion

18-3612 Kohn v. Barr BIA Sagerman, IJ A208 910 337

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of May, two thousand twenty.

PRESENT: PIERRE N. LEVAL, PETER W. HALL, GERARD E. LYNCH, Circuit Judges. _____________________________________

DOVID KOHN, AKA AVRAHAM PERL, AKA ABRHAM PERL, AKA ABRHAM PERL KOHN,

Petitioner,

v. 18-3612

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: Thomas E. Moseley, Newark, NJ.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Carl McIntyre, Assistant Director; Robert D. Tennyson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Dovid Kohn, a native and citizen of Israel, seeks

review of a November 8, 2018, decision of the BIA affirming a May

8, 2018, decision of an Immigration Judge (“IJ”) ordering his

removal. In re Dovid Kohn, No. A 208 910 337 (B.I.A. Nov. 8,

2018), aff’g No. A 208 910 337 (Immig. Ct. Napanoch N.Y. May 8,

2018). We assume the parties’ familiarity with the underlying

facts and procedural history.

Under the circumstances of this case, we have reviewed the

IJ’s decision as supplemented by the BIA. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review

constitutional claims and questions of law de novo. See Pierre

v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

I. The Agency’s Jurisdiction

In Pereira v. Sessions, the Supreme Court held that the

Immigration and Nationality Act requires a notice to appear to

include a hearing time and place to trigger the “stop-time rule,”

138 S. Ct. 2105, 2113–20 (2018), which cuts off an alien’s accrual

of physical presence or residence for the purposes of qualifying

for cancellation of removal, see 8 U.S.C. § 1229b(a), (b), (d)(1).

Kohn did not apply for cancellation of removal, and the stop-time 2 rule had no bearing on this case; nevertheless, Kohn argues that

Pereira requires us to conclude that his notice to appear was

insufficient to vest the immigration court with jurisdiction over

his removal proceedings because it did not specify the time and

place of his hearing. In Banegas Gomez v. Barr, we rejected that

argument, holding that Pereira addresses a narrow question

regarding the stop-time rule and does not “void jurisdiction in

cases in which an NTA omits a hearing time or place.” 922 F.3d

101, 110 (2d Cir. 2019). We noted that the regulation vesting

jurisdiction does not require a notice to appear to specify the

time and date of the initial hearing “so long as a notice of

hearing specifying this information is later sent to the alien.”

Id. at 112 (quotation marks omitted).

Kohn argues that Kisor v. Wilkie, 139 S. Ct. 2400 (2019),

casts doubt on Banegas Gomez because it holds that courts should

only give Auer deference to an agency’s interpretation after they

have exhausted all other tools of construction. But Banegas Gomez

was not based on Auer deference to the BIA’s interpretation;

rather, we decided the case on the plain language of the statute

and regulations, while noting that our conclusion was “reinforced

by the BIA’s precedential opinion.” 922 F.3d at 111.

Accordingly, Kisor does not affect our holding in Banegas Gomez.

Because the IJ had jurisdiction over Kohn’s removal proceedings,

we turn to the merits of his other arguments.

3 II. Abuse of Discretion/Continuance

Kohn next argues that the agency abused its discretion in not

granting an additional continuance to allow him to find

representation. An IJ “may grant a motion for continuance for

good cause shown,” 8 C.F.R. § 1003.29, and is “accorded wide

latitude in calendar management.” Morgan v. Gonzales, 445 F.3d

549, 551 (2d Cir. 2006). The denial of a continuance is an abuse

of discretion only if the IJ’s decision is founded in “an error of

law[,] . . . a clearly erroneous factual finding[,] . . . or

cannot be located within the range of permissible decisions.” Id.

at 551–52 (quoting Zervos v. Verizon New York, Inc., 252 F.3d 163,

169 (2d Cir. 2001)).

Noncitizens in removal proceedings have the statutory and

regulatory privilege of representation. See 8 U.S.C.

§ 1229a(b)(4)(A); see also 8 C.F.R. § 1003.16. To “meaningfully

effectuate” this privilege, an IJ “must grant a reasonable and

realistic period of time to provide a fair opportunity for a

respondent to seek, speak with, and retain counsel.” Matter of C-

B-, 25 I. & N. Dec. 888, 889 (BIA 2012). Here, the IJ granted one

continuance for Kohn to obtain counsel and did not abuse his

discretion in denying a second continuance.

Regarding the first continuance, the IJ informed Kohn that he

would have “three months to find an attorney” and that if he failed

to do so, he would be “required to represent [himself].” CAR at

98. Kohn confirmed his understanding of the IJ’s ruling. Three 4 months is unquestionably a “reasonable and realistic period of

time,” Matter of C-B-, 25 I. & N. Dec. at 889, within which to

seek and obtain counsel. Cf. Hidalgo-Disla v. INS, 52 F.3d 444,

445-47 (2d Cir. 1995).

At the second hearing Kohn appeared without counsel but stated

that he had hoped to “meet someone . . . at court.” CAR at 105.

The IJ informed Kohn that the court had not received any filings

from an attorney on Kohn’s behalf and that Kohn would have to

represent himself. Although Kohn had hoped to meet counsel, his

inability to name the counsel he expected to meet and the absence

of any filings by an attorney on Kohn’s behalf undercut any good

cause for granting a continuance, especially given that the IJ had

already afforded him a reasonable and realistic period of time

within which to retain counsel. The IJ did not abuse his discretion

by denying the second continuance.

Kohn also asserts that the IJ erred in proceeding with the

second hearing despite the fact that Kohn did not agree to waive

his right to counsel. This argument is meritless; an IJ need not

grant indefinite continuances until a noncitizen explicitly waives

his right to counsel. Hidalgo-Disla, 52 F.3d at 447. In Hidalgo-

Disla, this Court determined that no express waiver of counsel is

required because doing so would allow a noncitizen “seeking to

stave off deportation . . . to win an infinite number of

adjournments.” Id. Holding otherwise, moreover, would eviscerate

the purpose of deportation hearings — to “provide a streamlined 5 determination of eligibility to remain in this country.” INS v.

Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). An important factor

affecting when an IJ can proceed without a waiver is the amount of

time that is provided to the non-citizen for obtaining counsel.

See Hidalgo-Disla, 52 F.3d at 445–47 (finding no error when the IJ

proceeded, without express waiver, after granting two continuances

totaling 26 days to obtain representation); but see Montilla v.

INS, 926 F.3d 162, 164, 169–70 (2d Cir. 1991) (finding error when

the IJ proceeded, without express waiver, after one 16-day

continuance). The IJ here did not err by failing to obtain an

express waiver of counsel after Kohn did not obtain an attorney to

represent him, despite the fact that he had been given three months

to do so, and had been warned by the IJ that he would have to

proceed pro se if he did not find counsel for the second hearing.

III. Violation of Internal Regulations

Kohn argues that the agency failed to comply with two of its

own regulations that exist for his benefit. An agency’s failure

to follow its own procedures or regulations can require its action

to be invalidated. United States ex. rel. Accardi v. Shaughnessy,

347 U.S. 260, 267 (1954) (vacating deportation order where Attorney

General did “precisely what the regulations forbid him to do:

dictat[ed] the Board’s decision”). Following Accardi, this Court

has held that a noncitizen in deportation proceedings need not

make a showing of prejudice when claiming that the government “has

failed to adhere to its own regulations regarding the right to 6 counsel.” Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991). To

prevail, a noncitizen must show two things: that “the subject

regulations were for the alien’s benefit and that the [government]

failed to adhere to them.” Id. We must now examine whether (1)

the subject regulations were for Kohn’s benefit, and (2) if so,

whether the agency failed to adhere to them.

a. 8 C.F.R. § 1240.10(a)(2)

Kohn asserts the government failed to adhere to regulations

that require IJs to “[a]dvise the respondent of the availability

of pro bono legal services for the immigration court location at

which the hearing will take place, and ascertain that the

respondent has received a list of such pro bono legal service

providers.” 8 C.F.R. § 1240.10(a)(2). In Picca v. Mukasey, 512

F.3d 75 (2d Cir. 2008), we held that a prior version of 8 C.F.R.

§ 1240.10(a) was “designed for the benefit of immigrants” because

it implicates the fundamental right to counsel. Id. at 79–80.

The regulation, therefore, is for Kohn’s benefit.

In Picca, we also determined that the IJ violated the

regulation by not advising the noncitizen of the availability of

free legal services or ascertaining that he had received the list.

Id. Here, by contrast, the IJ advised Kohn of the availability

of pro bono legal service providers and directed Kohn to take the

list of providers. Kohn does not dispute that he received such a

list. Instead he argues that the list did not include providers

that (a) were located in Fishkill, NY, where the removal hearing 7 was held, and (b) that would provide legal services for “cases

such as that of Petitioner.” Petitioner’s Br. at 15.

By Kohn’s own admission, however, at least two of the listed

providers did not explicitly decline to provide services at his

hearing location. The list he received included 14 providers, and

only 5 providers limited their services to locations other than

Fishkill. The list gave the names of 9 other providers who did

not exclude Fishkill as a location where they would represent a

non-citizen. Unlike in Picca, where the IJ failed to provide any

list of pro bono legal service providers to the noncitizen, the IJ

here substantially complied with the regulation by giving Kohn a

list of providers operating in his state.

Nor is the list deficient because some of the service

providers on it did not accept cases like his. The regulation

does not require that an IJ provide noncitizens with a list of

providers willing to take cases similar to the type presented by

the non-citizen petitioner. Rather, the regulation requires only

that the IJ advise the noncitizen of “the availability of pro bono

legal services for the immigration court location at which the

hearing will take place.” 8 C.F.R. § 1240.10(a)(2). The factual

circumstances of Kohn’s case have no bearing on whether the IJ

complied with the regulation.

b. 8 C.F.R. § 1003.61(b)

Finally, Kohn argues that the IJ failed to comply with 8

C.F.R. § 1003.61(b), which requires the Director to maintain a 8 list of pro bono providers “which shall be updated not less than

quarterly.” 8 C.F.R. § 1003.61(b). Kohn argues that the agency

violated this regulation because the list he received at his

February 6, 2018 hearing was last updated in October 2017. Even

assuming arguendo that the regulation concerns a fundamental right

to counsel and is for the benefit of a noncitizen, Montilla, 926

F.2d at 169, remand is not required because Kohn has not

demonstrated that the Director failed to update the list. The

list Kohn received also included a website address at which Kohn

could have obtained an updated list. That was sufficient to

fulfill any obligations to Kohn the government had under the

regulation.

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and stays

VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court