Miguel Angel Robles Corcuera v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Decision of…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 24-1963
____________
MIGUEL ANGEL ROBLES CORCUERA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(Agency Case No. A244-034-054)
Immigration Judge: Tamar H. Wilson
____________
Argued on March 4, 2025
Before: MATEY, FREEMAN, and ROTH, Circuit Judges
(Opinion filed: October 15, 2025)
Pina Cirillo [Argued]
Rutgers University of Law
Immigrant Rights Clinic
123 Washington Street
4th Floor
Newark, NJ 07102
Counsel for Petitioner

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Lynda Do [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION*
_______________
FREEMAN, Circuit Judge.
Miguel Angel Robles Corcuera petitions for review of a Board of Immigration
Appeals (BIA) order dismissing his appeal of an Immigration Judge’s (IJ) order. For the
reasons that follow, we will grant the petition, vacate the BIA’s order, and remand to the
BIA with instructions to remand to the IJ for a new hearing.
I
Robles is a citizen of Mexico. In April 2023, he entered the United States without
authorization. The Department of Homeland Security (DHS) charged him with
inadmissibility for seeking admission without a valid entry document, but it paroled him
into the country. See 8 U.S.C. § 1182(a)(7)(A)(i). Two weeks later, DHS notified
Robles that he would have a master calendar hearing before an IJ in July 2026.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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In September 2023, New Jersey authorities arrested Robles on charges of
aggravated assault and possession of a weapon. Soon thereafter, immigration officials
took Robles into custody and detained him in rural Pennsylvania. In November 2023,
DHS notified him that he would have a master calendar hearing for his immigration case
on December 1, 2023. The written notice informed Robles in English of his right to be
represented by counsel in the immigration proceedings and provided a list of free or low-
cost legal-service providers.
Robles appeared without counsel at the December 1 hearing, and the IJ granted
Robles a two-week continuance to allow him to seek counsel. On December 15, 2023,
Robles again appeared before the IJ without counsel. He reported that one attorney had
responded to his outreach efforts, telling him to request a week to twenty days of
additional time so she could try to find him an attorney. The IJ continued the master
calendar hearing “one more time,” scheduling it for January 12, 2024. A.R. 102.
On January 12, Robles again appeared before the IJ without counsel. He
explained that he had tried to seek counsel but had received no response until the day
before, when an attorney told him she would look into his case and he should ask for
another continuance. Without responding to that request for a continuance, the IJ
proceeded to the merits of the removal proceedings. After questioning Robles briefly, the
IJ issued an oral decision: that Robles “ma[de] a knowing, voluntary, intelligent decision
to waive his right to counsel,” A.R. 88; is inadmissible; and does not appear eligible for
asylum or other relief from removal. Accordingly, the IJ ordered Robles removed to
Mexico.

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Within a month, Robles secured counsel and timely appealed to the BIA. Through
counsel, he moved for a remand to the IJ so he could seek asylum, withholding of
removal, and relief under the Convention Against Torture. Among other things, he
argued that the IJ had violated his due process rights by denying his last request for a
continuance to seek counsel.
The BIA dismissed Robles’s appeal and declined to remand the case to the IJ. It
concluded that no additional continuance was warranted because the IJ had informed
Robles of his right to counsel and given him a reasonable opportunity to obtain counsel.1
This timely petition for review followed.
1 The BIA also rejected Robles’s argument that the IJ violated his due process rights by
not informing him of his right to apply for asylum and withholding of removal, including
voluntary departure. Although Robles raises this issue in his petition for review, we need
not address it in light of our disposition.

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II2
“The Due Process Clause of the Fifth Amendment guarantees noncitizens the right
to effective assistance of counsel in removal proceedings[.]”3 Freza v. Att’y Gen., 49
F.4th 293, 298 (3d Cir. 2022). Statutes and regulatory provisions also safeguard this
right. See 8 U.S.C. §§ 1229a(b)(4)(A), 1362; 8 C.F.R. §§ 292.5(b), 1240.10(a)(1). To
assert a due process violation from the denial of this right to counsel, a noncitizen must
show “that he was prevented from reasonably presenting his case.” Freza, 49 F.4th at
298. The failure to comply with regulations protecting the right to counsel “will merit
invalidation of the challenged agency action without regard to whether the alleged
2 We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because “the BIA affirm[ed] and
partially reiterate[d] the IJ’s discussions and determinations, we look to both decisions.”
Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). “We review legal determinations
de novo and factual findings for substantial evidence.” Saban-Cach v. Att’y Gen., 58
F.4th 716, 724 n.23 (3d Cir. 2023). So “we exercise plenary review over . . . whether a
petitioner’s due process rights have been violated.” Serrano-Alberto v. Att’y Gen., 859
F.3d 208, 212–13 (3d Cir. 2017). We “review an IJ’s decision to deny a continuance . . .
for abuse of discretion,” reversing only if the decision is “arbitrary, irrational or contrary
to law” based on “the facts and circumstances of each case.” Hashmi v. Att’y Gen., 531
F.3d 256, 259–60 (3d Cir. 2008) (cleaned up).
3 The dissent views Supreme Court dicta in Department of Homeland Security v.
Thuraissigiam, 591 U.S. 103 (2020), as sub silentio overruling longstanding precedent
that “the Due Process Clause applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (collecting cases). But, after
Thuraissigiam, the Supreme Court has reiterated its longstanding precedent. See, e.g.,
Trump v. J. G. G., 604 U.S. 670, 673 (2025) (“‘It is well established that the Fifth
Amendment entitles aliens to due process of law’ in the context of removal proceedings.”
(quoting Reno v. Flores, 507 U.S. 292, 306 (1993))); A. A. R. P. v. Trump, 605 U.S. 91,
94 (2025) (same). Moreover, in this matter, the United States government acknowledges
that Robles had a right to due process in his removal proceedings; it argues only that the
IJ afforded Robles the due process to which he was entitled.

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violation has substantially prejudiced the complaining party.” Freza, 49 F.4th at 299;
Leslie v. Att’y Gen., 611 F.3d 171, 180 (3d Cir. 2010) (holding that violation of a
regulation concerning the right to counsel in removal proceedings “protects a
fundamental statutory or constitutional right, such that we may order a new removal
proceeding without a showing of prejudice”); Aquino v. Att’y Gen., 53 F.4th 761, 766 (3d
Cir. 2022) (“[A] violation of [the fundamental right to counsel] so undermines the
structure of the hearing that we must automatically remand.”).
Absent a noncitizen’s express waiver, the “statutory and regulatory privilege of
legal representation” requires an IJ to grant the noncitizen “a reasonable and realistic
period of time to provide a fair opportunity for a respondent to seek, speak with, and
retain counsel.” Matter of C-B-, 25 I. & N. Dec. 888, 889 (BIA 2012). And when a
right-to-counsel claim is “based solely on the IJ’s decision to deny [a] continuance . . . ,
we treat the two claims as one and the same” and assess it according to the particular
facts and circumstances of the case. Freza, 49 F.4th at 299 (cleaned up).
Under the facts and circumstances here, Robles has demonstrated a violation of his
right to counsel. He was seeking counsel as an indigent person who does not speak
English and who was detained in a remote location. See Hernandez Lara v. Barr, 962
F.3d 45, 47, 55–56 (1st Cir. 2020) (holding that a non-English-speaking detained
noncitizen’s right to counsel was violated when was provided fourteen business days to
find counsel, and noting that even five weeks of notice would not have justified denying
the last continuance request); accord Usubakunov v. Garland, 16 F.4th 1299, 1304–05
(9th Cir. 2021). Despite these challenges, the record reflects his ongoing efforts to retain

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counsel, and it contains no indication that he was dilatory. Additionally, Robles was not
informed that the merits of his case would be heard with or without counsel on January
12, and he never expressly waived his right to counsel. Given all this, we cannot
conclude that continuing the hearing from December 1 through January 12—a period that
included the winter holidays—provided Robles a reasonable and realistic period of time
to secure counsel. See Freza, 49 F.4th at 299–301; Chlomos v. U.S. Dep’t of Just.,
Immigr. & Naturalization Serv., 516 F.2d 310, 314 (3d Cir. 1975) (vacating removal
order where, “as a practical matter,” two continuances were insufficient to obtain counsel
and no dilatory tactics were evident).
The denial of an additional continuance before commencing the merits hearing
prevented Robles from reasonably presenting his case—that is, presenting his case with a
reasonable opportunity to do so assisted by counsel.4 Freza, 49 F.4th at 298; see also
Leslie, 611 F.3d at 181 (“The complexity of removal proceedings renders the
[noncitizen’s] right to counsel particularly vital to his ability to reasonably present his
case.” (cleaned up)). Because that denial of a continuance violated Robles’s
constitutional and statutory right to counsel, it was an abuse of discretion. See Freza, 49
F.4th at 302.
* * *
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s
order, and remand to the BIA with instructions to remand to the IJ for a new hearing.
4 We also note that Robles’ notice to appear for the hearing on January 12, 2024, referred
only to a master hearing, not a merits hearing.

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MATEY, Circuit Judge, dissenting.
The majority concludes Robles prevails on both of his due process challenges. But
as an alien paroled into our Nation, the Fifth Amendment cannot ground Robles’s claims.
And even if Robles could invoke notions of due process, no violation occurred because
Congress defined, and the Executive provided, the process thought due: an opportunity to
retain counsel, not a guaranteed right to representation. So I respectfully dissent.
I.
The Fifth Amendment requirement that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law” is a restriction on government action,
“secur[ing] the individual from the arbitrary exercise of the powers of government.” Bank
of Columbia v. Okely, 17 U.S. (4 Wheat.) 235, 244 (1819). The clause created no
open-ended prerogative to oppose all public action, only a promise to follow procedures
that, if established, explain how government can act against an individual’s life, liberty,
or property. So when assessing any challenge relying on the Fifth Amendment, we must
determine 1) whether the Fifth Amendment extends to the person, property, or practice at
issue and, if so, 2) what process is owed. Robles cannot invoke the Fifth Amendment as
he has not made an entry into our Nation. But even if he had, Robles received all the
process required by law.

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A.
Arising from the compact of the people seeking municipal law1 to protect their
natural rights, the Constitution created “a government . . . ordained and established ‘for
the United States of America,’ and not for countries outside [its] limits.” Ross v.
McIntyre, 140 U.S. 453, 464 (1891). Necessarily, its scope does not expand beyond the
sovereignty claimed, and its guarantees “apply only to citizens and others within the
United States.” Id.; see also Wong Wing v. United States, 163 U.S. 228, 238 (1896)
(“[A]ll persons within the territory of the United States are entitled to the protection
guarantied by [the Fifth and Sixth] [A]mendments.”). Cases have concluded that once an
alien “passe[s] through our gates, even illegally,” he “may be expelled only after
proceedings conforming to traditional standards of fairness encompassed in due process
of law.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
Entry into the country is crucial, carving the constitutional line at which the Fifth
Amendment first applies.2 Without an entry, “the decisions of executive or administrative
officers, acting within powers expressly conferred by [C]ongress, are due process of
11 William Blackstone, Commentaries *44.
2 See Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring) (“The
Bill of Rights is a futile authority for the alien seeking admission for the first time to
these shores. But once an alien lawfully enters and resides in this country, he becomes
invested with the rights guaranteed by the Constitution to all people within our
borders.”); Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“[O]ur immigration laws
have long made a distinction between those aliens who have come to our shores seeking
admission, such as petitioner, and those who are within the United States after an entry,
irrespective of its legality. In the latter instance the Court has recognized additional rights
and privileges not extended to those in the former category who are merely ‘on the
threshold of initial entry.’” (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 212 (1953))).

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law.” Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). Put differently, the
process necessary to act on an alien’s life, liberty, or property who has not made an entry
is no more or less than what Congress elects to authorize. See United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 544 (1950).
Robles did not “enter” the United States because merely “set[ting] foot on U. S.
soil” is insufficient. DHS v. Thuraissigiam, 591 U.S. 103, 139 (2020). The Supreme
Court has outlined this principle over several decades, explaining that for constitutional
limitations on federal action to attach, an alien’s “roots [must] become . . . deeply fixed in
this land,” Bridges v. Wixon, 326 U.S. 135, 154 (1945), demanding not only arrival
“within the territory of the United States,” but the forging of “substantial connections
with this country,” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).3 It is a
principle grounded in tradition, the long-accepted rule that a sovereign’s laws and the
privilege of the sovereign’s protections extend only to “persons and things within its own
territory according to its own sovereign will and public policy.” Joseph Story,
Commentaries on the Conflict of Laws, Foreign and Domestic § 22 (Boston, Hilliard,
3 See also Lau Ow Bew v. United States, 144 U.S. 47, 61–62 (1892) (“By general
international law, foreigners who have become domiciled in a country other than their
own acquire rights and must discharge duties in many respects the same as possessed by
and imposed upon the citizens of that country.”); Kaplan v. Tod, 267 U.S. 228, 230
(1925) (explaining that an individual at Ellis Island who had not “begun to reside
permanently in the United States” “had gained no foothold in the United States”); cf.
Castro v. DHS, 835 F.3d 422, 444–48 (3d Cir. 2016) (concluding that petitioners who
unlawfully entered the country and were apprehended within hours were treated as aliens
seeking admission at the border and thus could not invoke constitutional protections).

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Gray, and Co. 1834). So because protection and allegiance are reciprocal,4 an alien’s
access to process exists “only by virtue of his allegiance,” which is manifested by his
connections to our Nation. Philip Hamburger, Beyond Protection, 109 Colum. L. Rev.
1823, 1838 (2009). Constitutional constraints on governmental actions are not triggered
simply by “an alien’s position relative to [the] rigid conception [of] a line on a map.”
Castro v. DHS, 835 F.3d 422, 448 (3d Cir. 2016).5
Robles holds no deep ties to the United States. He arrived using the CBP One
mobile application6 on April 10, 2023, presented himself to immigration officials at the
4 See Qatanani v. Att’y Gen., 144 F.4th 485, 517–20 (3d Cir. 2025) (Matey, J.,
dissenting).
5 Caselaw often passes over these principles with broad brushstrokes unnecessary
to the decision. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established
that the Fifth Amendment entitles aliens to due process of law in deportation
proceedings.”); Trump v. J. G. G., 145 S. Ct. 1003, 1006 (2025) (per curiam) (same);
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause applies to all
‘persons’ within the United States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.”); Mezei, 345 U.S. at 212 (“[A]liens who have once
passed through our gates, even illegally, may be expelled only after proceedings
conforming to traditional standards of fairness encompassed in due process of law.”);
Mathews v. Diaz, 426 U.S. 67, 77 (1976) (noting the Fifth Amendment extends to the
“millions of aliens within the jurisdiction of the United States” regardless of whether
their “presence in this country is unlawful, involuntary, or transitory”). But these
decisions do not disturb the requirement of entry, allowing aliens “constitutional
protections” only “when they have come within the territory of the United States and
developed substantial connections with this country.” United States v. Verdugo-Urquidez,
494 U.S. 259, 271 (1990); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982)
(explaining that “once an alien gains admission to our country and begins to develop the
ties that go with permanent residence his constitutional status changes accordingly”).
6 The CBP One mobile application was launched in October 2020 with the
primary purpose of allowing customs brokers “to make appointments for the inspection
of perishable cargo.” U.S. Dep’t of Homeland Sec., Privacy Impact Assessment Update:
CBP One™, DHS/CBP/PIA-068 at 2 (February 19, 2021), https://perma.cc/QT5M-
JV7A. But former President Biden “later expanded CBP One so that migrants without

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port of entry in Brownsville, Texas, and was then paroled into our Nation. By September,
he was arrested in New Jersey for aggravated assault and possession of a weapon.
Meaning his few months in our Nation were spent in opposition to our law, showing
defiance to the Nation’s tradition, and confirming he remains outside our political
community. And, in any event, Robles never entered the United States, because parole is
insufficient. “[A]liens who arrive at ports of entry—even those paroled elsewhere in the
country for years pending removal—are ‘treated’ for due process purposes ‘as if stopped
at the border.’” Thuraissigiam, 591 U.S. at 139 (quoting Mezei, 345 U.S. at 215). That is
because although “in a literal and physical sense a person coming from abroad enters the
United States whenever he reaches any land . . . within the territorial limits of this
entry documents could schedule appointments at designated ports of entry on the
southern border,” and the mobile application quickly became “the primary method by
which asylum seekers could enter the United States.” American Immigration Council,
CBP One: An Overview, at 1 (Mar. 24, 2025), https://perma.cc/LX3J-CMXF. Critics
noted that the application had essentially become a “concierge service” for migrants and
was “a full-on institutionalization of an open border and [an] abuse of our asylum laws,”
leading to “drugs flooding our schools” and “national security risks.” Letter from Sen.
Josh Hawley to the Hon. Alejandro Mayorkas at 1–2 (Mar. 30, 2023),
https://perma.cc/F5UK-RJMV; see also Kristen Ziccarelli, Am. First Pol. Inst., How Our
Open Border Leaves Us More Vulnerable to Terrorism, at 3 (Oct. 25, 2023),
https://perma.cc/L6H3-4B83 (“CBP has released over 95% of all inadmissible aliens
(266,846) who used the CBP One App to enter our country, including individuals from
countries of concern.”). For instance, in June 2024, U.S. Immigrations and Customs
Enforcement arrested eight Tajikistan nationals with ties to ISIS, “and one of those men
used the . . . CBP One app” to enter the country. Letter from Reps. Jim Jordan & Tom
McClintock to the Hon. Alejandro Mayorkas at 1 (June 21, 2024),
https://perma.cc/9TU2-K3NU. In early 2025, President Trump discontinued CBP One
and replaced it with a new application, CBP Home, which offered a “self-deportation
reporting feature . . . giv[ing] aliens the option to . . . self-deport, so they may still have
the opportunity to return legally in the future and live the American dream.” Press
Release, DHS Launches CBP Home App with Self-Deport Reporting Feature (Mar. 10,
2025), https://perma.cc/T7CP-P3H4.

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nation,” the alien has not “accomplish[ed] an ‘entry’ by crossing the national boundary in
transit or even by arrival at a port so long as they are detained there pending formal
disposition of their requests for admission.” United States v. Vasilatos, 209 F.2d 195, 197
(3d Cir. 1954); see also Doe v. Att’y Gen., 659 F.3d 266, 269 (3d Cir. 2011) (explaining
that parole is not synonymous with admission).7
Parole is a practical principle, “simply a device through which needless
confinement is avoided while administrative proceedings are conducted.” Leng May Ma
v. Barber, 357 U.S. 185, 190 (1958). One that mirrors detention at the border because if
an alien’s “movements are restrained by authority of the United States,” he is not
considered to have made an “entry into the United States” regardless of “whether he
enjoys temporary refuge on land . . . or remains continuously aboard ship.” Mezei, 345
U.S. at 213. So although an alien may be “physically within our boundaries” after
detention, he “is to be regarded as if he had been stopped at the limit of our jurisdiction,
and kept there while his right to enter was under debate.” United States v. Ju Toy, 198
U.S. 253, 263 (1905). Parole does not disturb that distinction, as “[i]t was never intended
7 The Immigration and Nationality Act likewise provides that any “alien who is
paroled . . . shall not be considered to have been admitted.” 8 U.S.C. § 1101(a)(13)(B);
see also id. § 1101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect
to an alien, the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.”). Only aliens who have been “admitted” can be
“lawfully accorded the privilege of residing permanently in the United States as an
immigrant in accordance with the immigration laws.” Id. § 1101(a)(20). So paroled aliens
categorically lack the “great measure of security” that accompanies the “status” of being
“admitted” to the country. See Qatanani, 144 F.4th at 498 (Matey, J., dissenting).

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to affect an alien’s status” or to indicate an alien was “legally ‘within the United States.’”
Leng May Ma, 357 U.S. at 190.
All told, Robles did not make an entry into the United States merely by presenting
himself at the border and enjoying, or rather misusing, the privilege voluntarily afforded
by the United States pending consideration of his asylum application.8
8 As Robles’s arguments do not meet the standards established for aliens raising
procedural claims, I need not address decisions applying the Fifth Amendment to all
aliens within our borders, even those who enter illegally. The Supreme Court first
mentioned the Fifth Amendment’s application to aliens in 1896, explaining its protection
is not limited to citizens, but applies to “all persons within the territory of the United
States.” Wong Wing v. United States, 163 U.S. 228, 238 (1896). But that decision did not
consider earlier evidence suggesting “that the Sovereign does not owe all aliens within its
borders the same obligation it does its citizens.” Qatanani, 144 F.4th at 520 (Matey, J.,
dissenting). And only a few years later, the Court specifically reserved the “question [of]
whether an alien can rightfully invoke the due process clause of the Constitution who has
entered the country clandestinely, and who has been here for too brief of a period to have
become, in any real sense, a part of our population, before his right to remain is
disputed.” Yamataya v. Fisher, 189 U.S. 86, 100 (1903). Instead, the Court held, only
after an alien “has entered the country, and has become subject in all respects to its
jurisdiction, and a part of its population” must he receive “opportunity, at some time, to
be heard, before such officers, in respect of the matters upon which that liberty depends.”
Id. at 101.
Since then, assumptions around what process is due aliens under the Fifth
Amendment have spread, see, e.g., Mathews, 426 U.S. at 77, but missing is rich,
historically grounded reasoning for why the protections of the Fifth Amendment do not
vary based on the type of admission into the country. Some point to the word “person” in
the Fifth Amendment. See, e.g., Wong Wing, 163 U.S. at 238. But at least some
Federalists did not understand aliens to be covered by the restrictions on government
action imposed by the Constitution. See 4 The Debates in the Several State Conventions
on the Adoption of the Federal Constitution 534 (Jonathan Elliot ed., Philadelphia, J.B.
Lippincott Co. 2d ed. 1836). And eighteenth-century thinkers recognized the principle
“founded in reason and the nature of government,” that “[a]llegiance is the tie,
or ligamen, which binds the subject to the king, in return for that protection which the
king affords the subject.” 1 Blackstone, Commentaries *366. As I have explained, an
alien “falls into an ‘obvious division,’” owing “only a ‘[l]ocal allegiance’ to the
Sovereign,” “a temporary affinity ‘for so long time as he continues within the king’s

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II.
But even assuming Robles enjoys some protections under the Fifth Amendment,
he received all the process specified by Congress and afforded by the Executive.
A.
Congress allows aliens in removal proceedings “the privilege of being represented,
at no expense to the Government, by counsel of the alien’s choosing who is authorized to
practice in such proceedings.” 8 U.S.C. § 1229a(b)(4)(A); see also id. § 1362 (“In any
removal proceedings before an immigration judge . . . the person concerned shall have
the privilege of being represented (at no expense to the Government) by such counsel,
authorized to practice in such proceedings, as he shall choose.”). But Congress warned
that privilege may not “be construed to prevent the Attorney General from proceeding
against an alien pursuant to section 1229a . . . if the time period [to obtain counsel] has
elapsed and the alien has failed to secure counsel.” Id.§ 1229(b)(3). Meaning Congress
allows aliens the opportunity to obtain counsel, not the right to halt proceedings until they
do so. A rational result, because otherwise the immigration laws could be used to further
what “is ultimately an interest in evading the law.” See Noem v. Vasquez Perdomo, 606
U.S. ----, 2025 WL 2585637, at *4 (2025) (Kavanaugh, J., concurring in the grant of a
denial of stay).
dominion and protection . . . and it ceases the instant such stranger transfers himself from
this kingdom to another.’” Qatanani, 144 F.4th at 518 (Matey, J., dissenting) (quoting 1
Blackstone, Commentaries *366, 370). So how can an alien show allegiance to the
Sovereign if he enters its territory in violation of the Sovereign’s laws? Since these
questions reserved by Yamataya have gone unaddressed for more than a century, litigants
and scholars should pursue the question with renewed vigor.

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Robles could have obtained counsel. Over nine months, he was notified at least
five times of his ability to retain an attorney and provided with a list of qualified,
low-cost specialists. For roughly five months of that period, Robles was not detained.
And even once arrested for aggravated assault, Robles had another four months to find
counsel, including the extra six weeks the IJ granted during two continuances. This ample
amount of time to find representation is more than a “reasonable and realistic”
opportunity. In re C-B-, 25 I. & N. Dec. 888, 889 (B.I.A. 2012). Denying Robles’s
request for a third continuance cannot be wrong.
Case law does not demand a different conclusion. In Freza v. Attorney General,
the IJ “render[ed] Freza’s right to counsel meaningless,” 49 F.4th 293, 301 (3d Cir.
2020), by denying counsel’s request for a continuance to prepare after having “only met
with Freza for the first time less than 24 hours before the merits hearing and” with no
“time to review the record,” id. at 299.9 Here, of course, Robles never found an attorney
despite dozens of weeks, multiple notices, and two continuances. And in Hernandez Lara
v. Barr, the First Circuit considered fourteen business days for a petitioner to retain
counsel insufficient. 962 F.3d 45, 55–56 (1st Cir. 2020). More than enough time in my
view—but regardless, Robles had far longer.
Robles responds that his detention after his arrest for assault, along with language
barriers and the “holiday season,” all left him without a reasonable and realistic time to
9 In any event, Freza does not apply to aliens who failed to make an “entry” into
the United States such as Robles, since the Freza petitioner was lawfully admitted and,
indeed, “adjusted status to lawful permanent resident” prior to his removal proceedings.
49 F.4th at 295–96.

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obtain counsel. That does not account for the endless weeks preceding his arrest, but even
focusing on the six additional weeks the IJ granted him, Robles took the opportunity to
place multiple calls to different attorneys. Those efforts apparently proved unsuccessful,
but that does not mandate the “wheel-spinning” produced by “an infinite number of
adjournments.” Hidalgo-Disla v. INS, 52 F.3d 444, 447 (2d Cir. 1995). Indeed, “[i]f an
immigration judge could not proceed with a hearing, after two adjournments, without the
alien’s express waiver, an alien seeking to stave off deportation would be able to win an
infinite number of adjournments, and would be better off appearing without a lawyer than
with one.” Id.
That is why “mere ‘inability to obtain counsel’ [is] not a violation of due process,
or a denial of [Robles’s] right to counsel.”10 See Ponce-Leiva v. Ashcroft, 331 F.3d 369,
10 As I have noted in other contexts, the statutory “privilege of being represented,
at no expense to the Government, by counsel of the alien’s choosing who is authorized to
practice in such proceeding,” 8 U.S.C. § 1229a(b)(4)(A), should not be confused with any
right to counsel discussed in the Sixth Amendment. Pino-Porras v. Att’y Gen., No.
22-3419, 2025 WL 1752491, at *5 n.10 (3d Cir. June 25, 2025) (Matey, J., dissenting).
After all, it is “well-settled” that “‘there is no Sixth Amendment right to counsel’” in
immigration proceedings. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003)
(quoting Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)). That is because
“[d]eportation is not a criminal proceeding and has never been held to be
punishment.” Carlson v. Landon, 342 U.S. 524, 537 (1952). It is “a purely civil action to
determine eligibility to remain in this country, not to punish an unlawful entry, though
entering or remaining unlawfully in this country is itself a crime.” INS v. Lopez-Mendoza,
468 U.S. 1032, 1038 (1984). For “[w]hile the consequences of deportation may assuredly
be grave, they are imposed not as a punishment” but “to bring to an end an ongoing
violation of United States law.” Reno v. American-Arab Anti-Discrimination Comm’n,
525 U.S. 471, 491 (1999).
Reflecting that distinction, this Court described an alien’s ability to hire counsel
for removal proceedings as a “privilege” that was “statutorily conferred,” not a right
guaranteed by the Constitution. Chlomos v. INS, 516 F.2d 310, 311, 313–14 (3d Cir.

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376 (3d Cir. 2003). So Robles cannot prevail on his first claim because he cannot show a
violation of “fundamental statutory or constitutional rights,” Freza, 49 F.4th at 299, that
prevented him “from reasonably presenting his case” before the IJ, Serrano-Alberto v.
Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017) (quoting Fadiga v. Att’y Gen., 488 F.3d 142,
155 (3d Cir. 2007)).
B.
Finally, Robles’s alternative claim fails because he was not eligible for any relief
from removal. In exercising its constitutional authority to enforce our immigration laws,
the Executive binds itself to the obligation that an IJ must “inform the alien of his or her
1975). But decades ago, we confused that clarity by presuming, without explanation, that
aliens in civil immigration enforcement proceedings enjoy a freestanding due process
right to counsel. See, e.g., Ponce-Leiva, 331 F.3d at 374–75; Borges v. Gonzales, 402
F.3d 398, 408 (3d Cir. 2005). I can find no justification for that assumption, particularly
in the light of decisions declining to identify a due process right to citizen civil litigants.
See Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (rejecting a claimed due process
right to counsel in a state postconviction proceeding since “access to a lawyer is the result
of the State’s decision, not the command of the United States Constitution” because the
proceeding “is in fact considered to be civil in nature”). It is hard to see why a non-citizen
is due more process through guaranteed legal assistance than a citizen facing a
deprivation of property or privilege. Indeed, I assume that is why Congress has carefully
created only a privilege to retain an attorney for some immigration proceedings. More
problematic is the impact on our default rule that an error must be harmful before we will
disturb the Executive’s immigration decisions. Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d
Cir. 2011) (“[W]e will view an error as harmless and not necessitating a remand to the
BIA when it is highly probable that the error did not affect the outcome of the case.”); see
also Suchite-Salguero v. Att’y Gen., 147 F.4th 355, 360–61 (3d Cir. 2025). By ordering a
new removal proceeding without a showing of prejudice, we have imported Sixth
Amendment concerns into our Fifth Amendment creation and effectively extended the
structural-error review reserved for criminal prosecutions. Maj. Op. 5. That
“inexplicably” regards an alien’s privilege to hire “counsel at no expense to the
government as if it were equivalent to a criminal defendant’s absolute Sixth Amendment
right to counsel.” Hernandez v. Holder, 545 F. App’x 710, 712 (9th Cir. 2013) (Ikuta, J.,
concurring).

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apparent eligibility to apply for any of the benefits enumerated in this chapter and shall
afford the alien an opportunity to make application during the hearing.” 8 C.F.R.
§ 1240.11(a)(2). But to trigger that obligation, the alien’s eligibility for such relief must
be apparent. Robles argues he was apparently eligible to apply for asylum and voluntary
departure, but that is incorrect.
For Robles to receive asylum, he must show that “he was persecuted, or had a
well-founded fear of persecution, ‘on account’ of a statutorily protected ground,
including ‘race, religion, nationality, membership in a particular social group, or political
opinion.’” Cortez-Amador v. Att’y Gen., 66 F.4th 429, 434 (3d Cir. 2023) (quoting 8
U.S.C. § 1101(a)(42)(A)). But Robles never claimed membership in a protected social
group, nor did he offer any theory for why his claimed kidnapping qualified as
“persecution.” Rather, he candidly testified that his assailants were “people who [he]
didn’t know,” A.R. 109, and when asked whether he knew why he was targeted he
responded “[n]o, to be honest no,” A.R. 110. And while Robles mentioned his Christian
faith, his asylum application lacked any allegation that his religion was a “central reason”
for his kidnapping and beating. Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d
Cir. 2015). So the record lacks any facts demonstrating apparent eligibility for asylum.
Nor was Robles apparently eligible for voluntary departure, which “may” be
granted to an alien “physically present in the United States for a period of at least one
year immediately preceding the date the notice to appear was served.” 8
U.S.C. § 1229c(b)(1)(A). And even if he was, “there is no constitutional right to be

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informed of possible eligibility for discretionary relief.” Bonhometre v. Gonzales, 414
F.3d 442, 448 n.9 (3d Cir. 2005).
* * *
The Fifth Amendment does not apply to the actions Robles seeks to challenge. But
even if it did, there has been no violation of the procedural protections Congress and the
Executive extended. For those reasons, I respectfully dissent.

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