NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 1 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIRGINIO GARCIA-HERNANDEZ, No. 21-70181

Petitioner, Agency No. A205-917-507

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted January 10, 2022 Pasadena, California

Before: TASHIMA, M. SMITH, and WATFORD, Circuit Judges. Dissent by Judge WATFORD.

Petitioner Virginio Garcia-Hernandez appeals from an immigration judge’s

(IJ) order concluding that he was not entitled to relief from his reinstated removal

order. The IJ’s order was issued after a reasonable fear review hearing where Garcia-

Hernandez testified. See 8 C.F.R. § 1208.31. The IJ agreed with an asylum officer’s

(AO) determination that Garcia-Hernandez had failed to demonstrate a reasonable

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. fear of persecution or torture should he be removed to Mexico. On appeal, Garcia-

Hernandez argues that his due process rights were violated because he was not

provided with adequate translation services or the right to an attorney at the

reasonable fear review hearing.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). See Ayala v. Sessions,

855 F.3d 1012, 1016 (9th Cir. 2017). We deny the petition for review.

1. The parties’ familiarity with the record is assumed. Garcia-Hernandez claims

that he was deprived of his due process right to have competent translation in a

language he understood at his hearing. See Perez-Lastor v. INS, 208 F.3d 773, 778

(9th Cir. 2000). However, he has failed to make the necessary showing that he was

prejudiced by any translation defects. See, e.g., Aden v. Holder, 589 F.3d 1040, 1047

(9th Cir. 2009) (petitioner must show “that defects in translation prejudiced the

outcome of the hearing”). The IJ rescheduled Garcia-Hernandez’s hearing date so

that an interpreter for his native language, Mixteco, could be found. He also called

a Spanish translator to serve as a backup when the Mixteco interpreter indicated she

was having some problems understanding Garcia-Hernandez’s specific dialect.

While the language services provided to Garcia-Hernandez were not perfect, the

record shows that the IJ and interpreters were responsive to translation issues as they

arose and made diligent efforts to resolve them. See Kotasz v. INS, 31 F.3d 847, 850

n.2 (9th Cir. 1994). Ultimately, there was only a single word that the interpreters

2 were unable to translate, and despite this problem, Garcia-Hernandez was still able

to communicate with the help of the Spanish interpreter that he had been forced to

fight in a land dispute. All in all, Garcia-Hernandez was “given a fair opportunity

to relate [his] version of events,” and the record does not show that translation

problems “influenced the outcome of the proceedings.” Id.

2. We also deny Garcia-Hernandez’s right-to-counsel claim because we

conclude that he failed to avail himself of the opportunity he was given to retain

counsel. As a preliminary matter, we reject the argument presented in the

government’s answering brief that Garcia-Hernandez had no right to counsel

whatsoever because, after the briefing in this case closed, our court held

unequivocally that “non-citizens whose removal orders have been reinstated are

statutorily entitled to counsel under [8 U.S.C.] § 1362 . . . at their reasonable fear

hearings before an IJ.” Orozco-Lopez v. Garland, 11 F.4th 764, 777 (9th Cir. 2021).

Nonetheless, Garcia-Hernandez is not entitled to relief because his right to counsel

was “cabined” by the requirement in 8 C.F.R. § 208.31(g)(1) that reasonable fear

hearings must be conducted within 10 days. Id. at 780. The “statutory entitlement

to counsel” in the reasonable fear context “does not mean that a non-citizen must

have counsel before an IJ can proceed, but only that a non-citizen must at least be

informed of the entitlement to counsel and have an opportunity to seek counsel

within § 208.31(g)(1)’s constraints.” Id. at 778-79 (noting the expedited nature of

3 reasonable fear review proceedings, which are not intended to be full evidentiary

hearings). Like the IJ, we conclude that Garcia-Hernandez “had the opportunity to

retain counsel” for his hearing, but “failed to do so,” meaning that it was permissible

for the IJ to go forward with the hearing in light of § 208.31(g)(1)’s requirements.

Id.

Garcia-Hernandez’s only excuse for not having an attorney at his hearing was

that he did not know he would have a court hearing and thus did not pass the

information along to his attorney. However, Garcia-Hernandez’s original hearing

before the IJ was continued in part so that Garcia-Hernandez could retain counsel.

Along with providing the new date and time of the hearing, the IJ informed Garcia-

Hernandez of his right to counsel and told him he could use the time before his

rescheduled hearing to find a lawyer. Garcia-Hernandez indicated on the record that

he understood what the IJ had said to him. Garcia-Hernandez also received written

notices for both his original and rescheduled hearings indicating that he had the

option of being represented by counsel, and the contents of at least one of these

notices “were read and explained to [Garcia-Hernandez] in the Spanish language.”

Garcia-Hernandez never argues in his briefing that he could not understand any of

these forms of notice. Given the ample opportunities he had already provided to

Garcia-Hernandez to communicate the hearing details to his attorney, the IJ was

under no obligation to continue the hearing a second time. See 8 CFR § 1208.31(g)

4 (only “exceptional circumstances” justify continuing hearing beyond 10 days of

referral by AO).

Despite the IJ’s efforts to allow Garcia-Hernandez to retain counsel for his

hearing, our dissenting colleague argues that the IJ behaved unreasonably by not

attempting to call Garcia-Hernandez’s lawyer at the hearing. However, even after

the IJ granted a continuance of over ten days, Garcia-Hernandez’s attorney never

filed a required Form EOIR-28 notifying the IJ of her appearance in the case and

certifying that she met the requirements to make such an appearance. See 8 CFR §

1003.17(a); Morales Apolinar v. Mukasey, 514 F.3d 893, 896 n.3 (9th Cir. 2008)

(“Under 8 C.F.R. § 1003.17(a), an attorney must execute, file, and serve a Notice of

Entry of Appearance on Form EOIR-28 before representing a client in any

proceeding before an IJ.”); Executive Office of Immigration Review, Form EOIR-

28 (revised Feb. 2022).1 As a result, and given Garcia-Hernandez’s past lack of

diligence, the IJ had no way of knowing when Garcia-Hernandez might have counsel

properly representing him in the case. Consequently, “the IJ reasonably proceeded

with the review hearing.” Orozco-Lopez, 11 F.4th at 779 (holding right to counsel

was not violated where “[t]he asylum officer had given [the petitioner] a list of legal

service providers,” and, “[d]uring the eight days thereafter, [the petitioner] had not

retained counsel and, at the hearing, did not suggest when, if ever, he might be able

1 https://www.justice.gov/eoir/file/639746/

5 to do so”).2

PETITION FOR REVIEW DENIED

2 Along these lines, we disagree with the dissent that this case is similar to Myrtil v. Garland, 857 F. App’x 922, 923 (9th Cir. 2021), which is not binding on us in any event. See 9th Cir. Rule 36-3. Unlike in this case, the petitioner in Myrtil indicated that his attorney was supposed to be present at the hearing, but failed to show up for unknown reasons. See id. at 923 (“There’s [an attorney] I spoke to. He said he was going to help me, that he was going to be here today. I don’t know.” (Emphasis added.)). There was no such indication here.

6

FILED

Garcia-Hernandez v. Garland, No. 21-70181

JUL 1 2022

WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that Virginio Garcia-Hernandez was not denied the

right to competent translation services, but in my view he was denied the right to

counsel, which necessitates remand for a new hearing under our recent decision in

Orozco-Lopez v. Garland, 11 F.4th 764 (9th Cir. 2021).

In Orozco-Lopez, we held that non-citizens in reasonable fear review

hearings have a statutory right to counsel at no expense to the government. Id. at

777. That right is cabined by the 10-day timeframe in which such proceedings

must ordinarily be completed. Thus, a non-citizen who has received adequate

notice of his right to be represented by counsel is not entitled as of right to a

continuance beyond the 10-day time limit merely because he needs more time to

retain counsel or because counsel would like more time to prepare. Id. at 778.

In this case, Garcia-Hernandez did not request a continuance to obtain more

time to retain counsel. He had already retained a lawyer, and he advised the

immigration judge (IJ) of that fact at the outset of the hearing. He also stated that

he wanted his attorney to be present and was afraid to move forward without her

being there.

In that scenario, our cases make clear that an IJ may not simply proceed with

the hearing, as the IJ did here. “When an immigrant has engaged counsel and the Page 2 of 2

IJ is aware of the representation, if counsel fails to appear, the IJ must take

reasonable steps to ensure that the immigrant’s statutory right to counsel is

honored.” Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007). In the

situation involved here, taking “reasonable steps” meant at least attempting to

contact Garcia-Hernandez’s lawyer to determine whether she could appear for the

hearing later that day, which would not have entailed any further delay beyond the

10-day time limit. See id. at 807. Garcia-Hernandez gave the IJ his attorney’s

name, and counsel’s telephone number was in the record. Yet the IJ took no steps

whatsoever to ensure that Garcia-Hernandez’s statutory right to counsel was

honored.

The same panel that decided Orozco-Lopez held, in a companion case

involving facts materially indistinguishable from those present here, that a non-

citizen’s right to counsel was violated when “the IJ just proceeded with the

hearing” instead of taking reasonable steps to contact counsel. Myrtil v. Garland,

857 Fed. App’x 922, 923–24 (9th Cir. 2021). Because prejudice need not be

shown in this context, the panel granted the petition for review and remanded for

further proceedings. Id. at 924 (citing Montes-Lopez v. Holder, 694 F.3d 1085,

1093–94 (9th Cir. 2012)). I would follow the same course in this case.