Background
Kevin Alexander Ipina, a native and citizen of Guatemala, petitioned for review of a Board of Immigration Appeals decision dismissing his appeal from an Immigration Judge order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. He also appealed the denial of several due process claims.
The court’s reasoning
The court reviewed the denial of the statutory right to counsel de novo, applying a fact-specific inquiry to determine if the petitioner was given a reasonable time to obtain counsel. The court weighed factors including the realistic time necessary to obtain counsel, the time frame of requests, the number of continuances, barriers such as incarceration and the pandemic, and whether the petitioner was delaying in bad faith. The court found that granting only two continuances and twenty-one business days was insufficient given the barriers posed by detention during the COVID-19 pandemic. The court held that the petitioner’s equivocal response to proceed without an attorney was not a knowing and voluntary waiver, as the Immigration Judge failed to inquire about the implications or inform the petitioner of the right to request another continuance.
This is not a case of indefinite continuances, nor is it a case where [Ipina] was trying to game the system.
Usubakunov v. Garland, 16 F.4th 1299, 1307 (9th Cir. 2021)
What it means going forward
The petitioner is entitled to a new hearing before the Immigration Judge to address the denial of counsel, and the temporary stay of removal remains in place until the mandate issues.