Vico

MEMORANDUM **

Pablo Basilio Vico, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s order of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review questions of law de novo. Pedro-Mateo v. INS, 224 F.Sd 1147, 1150 (9th Cir.2000). We grant the petition for review.

An alien in removal proceedings has a right to counsel derived from the Fifth Amendment guarantee of due process. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004). An alien may appear pro se in a removal proceeding when he has made a knowing and voluntary waiver of the right to counsel. See id. Given his expressed desire for representation, Vico’s failure to request a continuance to find new counsel cannot be seen as a waiver of the right to counsel. See id. at 1103-04 . To the contrary, the IJ should have inquired into whether Vico wished to waive his right to counsel and, if not, whether there was cause to grant Vico a continuance to obtain new counsel. See id. Accordingly, the IJ’s failure to obtain a knowing and voluntary waiver of his right to counsel denied Vico due process. See…