Third Circuit Reverses IJ’s Denial of Asylum Application

In 1993, Konstantin Ignatov, a national of Russia, filed an application for asylum or withholding of removal to the INS stating that he was being persecuted for his religious beliefs.  In April 1996, he received a written notice advising him of his right to obtain counsel at the deportation proceedings.  He appeared before the IJ and was granted a continuance to obtain counsel. 

On October 29, 1996, counsel appeared on behalf of Ignatov and requested a continuance to prepare the case.  The master calendar hearing was scheduled for October 17, 1997. 

On October 14, Ignatov’s counsel filed a motion to withdraw since Ignatov never entered a contract for representation, refused to pay additional counsel fees, and never contacted counsel to prepare his case following the October appearance. 

The court neither granted nor denied the motion, and on October 17, counsel did not appear at the master hearing.  The IJ at this time granted counsel’s motion and proceeded with the hearing, denying Ignatov’s request for a continuance in order to obtain counsel.

Under 8 U.S.C. § 1362, a petitioner in a removal proceeding has a statutory right to be represented by counsel at his own expense. 

The court held that if a claim for asylum is appears to be without merit, then it is reasonable and proper for an IJ to consider the lack of merit in the claim when deciding whether to grant a continuance.  On the other hand, when a claim appears facially meritorious, counsels’ presence at the hearing could have made a difference to the outcome of the case. 

In this case, Ignatov did appear to introduce a facially meritorious claim for asylum.  As a result, the court found that the IJ violated Ignatov’s statutory right to obtain counsel at his own expense by granting counsel’s motion to withdraw on the day of the hearing.

***

Benjamin Alvarado-Ochoa v. John Ashcroft

United States Court of Appeals for the Ninth Circuit

Benjamin Alvarado-Ochoa appealed the district court’s denial of his habeas petition requesting relief from removal.  The Ninth Circuit rejected the government’s argument that Alvarado is an aggravated felon.  Alvarado’s state conviction for transportation of cocaine is not considered to be an aggravated felony, because although his conviction was a felony in California, it is not punishable under the Controlled Substances Act.  In order for a drug offense to qualify as an aggravated felony, it must be a felony and be punishable under the Controlled Substances Act.  Also, because Alvarado’s state conviction for possession was expunged from his record, the immigration consequences of his conviction do not apply.  The Ninth Circuit reversed the district court’s decision.