Edgar Hernandez-Gil v. Alberto R. Gonzales, Attorney General

Edgar Hernandez-Gil, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (“BIA’s”) decision summarily affirming the Immigration Judge’s (“IJ’s”) denial of his application for cancellation of removal. Hernandez-Gil contends that the IJ erred in denying his motion for a continuance and violated his statutory right to counsel by proceeding with the merits hearing without his attorney being present. We have jurisdiction pursuant to 8 U.S.C. § 1252 (a)(1), and grant his petition for review.

I

Hernandez-Gil entered the United States on or about April 15, 1991. He is not married, but lives with the mother of his two United States citizen sons. On July 31, 2001, the former Immigration and Naturalization Service (“INS”) charged Hernandez-Gil with removability under 8 U.S.C. § 1182 (a)(6)(A)(I), as an alien who had not been admitted or paroled into the United States. On October 17, 2001, he appeared with his retained counsel, Gloria Weil-Herrera, before the IJ and admitted to the INS’s allegations. Weil-Herrera advised the IJ that Hernandez-Gil would apply for cancellation of removal, and the IJ set a merits hearing for that application on February…