Rogelio Mendoza-Garcia v. WILLIAM P. BARR, Attorney General

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROGELIO MENDOZA-GARCIA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
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No. 18-3513
On Petition for Review from the Board of Immigration Appeals;
No. A 090 695 509.
Decided and Filed: March 13, 2019
Before: KEITH, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Elizabeth M. Knowles, UNIVERSITY OF AKRON SCHOOL OF LAW, Akron,
Ohio, for Petitioner. Kevin J. Conway, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Approximately six weeks before Rogelio Mendoza-
Garcia’s final removal hearing, his attorney warned him that he needed to comply with the terms
of their retainer agreement—that is, to pay the attorney. Mendoza-Garcia did not pay and, one
week before the hearing, his attorney filed a motion to withdraw. The immigration judge (IJ)
granted the motion the day of the hearing. When Mendoza-Garcia requested a continuance to
find a new attorney, the IJ denied the request, explaining that he would assist in developing the
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record. Mendoza-Garcia argues that the IJ violated his constitutional rights by denying the
continuance and by failing to fully develop the record. The Board of Immigration Appeals
disagreed and, for the reasons explained below, we DENY the petition for review.
I. BACKGROUND
Mendoza-Garcia came to the United States from Guatemala in 2004, when he was
16 years old. He was placed in removal proceedings approximately six years later, in March
2011. He appeared pro se at an initial scheduling hearing the next month and was granted a six-
month continuance to find an attorney. With the help of retained counsel, he applied for asylum
and withholding of removal within that six-month window. In the application, he stated that he
was afraid to return to Guatemala because, years before, his hometown had been torn apart by
violence after a mayoral election won through fraud.
The case then languished for reasons that are not clear from the record. More than six
years later, in September 2017, Mendoza-Garcia attended another scheduling hearing, and his
merits hearing was scheduled for November. On November 6, one week before that hearing
took place, his attorney submitted a motion to withdraw. The attorney stated that he told
Mendoza-Garcia on September 25, 2017—the day of the scheduling hearing—about an
outstanding obligation related to their 2011 representation agreement. Mendoza-Garcia
informed the attorney on November 3 that he was “unable to comply.”
The motion had not been decided when Mendoza-Garcia and counsel attended the merits
hearing in November. The IJ asked if Mendoza-Garcia objected to his attorney’s withdrawal; he
responded that he “did have some financial issues” and “request[ed] a little bit more of time.”
The IJ informed him that financial difficulty was not a “valid reason” to grant a continuance and
asked again if Mendoza-Garcia objected. Mendoza-Garcia asked the IJ, “if he doesn’t want to
continue with my case, he’s going to leave me by myself?” The IJ said yes, explaining, “you’ll
represent yourself, and I would ask you questions to help you develop your testimony regarding
why you fear going back to your country.” When asked a third time if he objected to his
attorney’s withdrawal, Mendoza-Garcia said no. The IJ granted the motion to withdraw, and the
attorney left.

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The hearing proceeded, working through two interpreters—one translating from English
to Spanish, and the second from Spanish to Aguacateco, the indigenous language that Mendoza-
Garcia speaks best. Mendoza-Garcia explained to the IJ that he was afraid to return to
Guatemala because “when [he] was little, there was some serious issue or problem in [his]
village and a problem that took place with the local mayor.” When asked if anyone harmed him,
he responded, “I do not want to lie but, no, no, and that’s why I decided to come over here.” He
also denied that he had been threatened but asked “to be able to give a little bit of further
explanation.” The IJ responded that Mendoza-Garcia would be allowed to “say whatever [he]
want[ed] to say,” and asked if there was a “person or group” he feared would harm him.
Mendoza-Garcia responded, “I don’t fear any person in particular or a group, per se,” but
explained, “they made us to get involved with a group to protect the village,” even giving him a
gun.
Later, the IJ asked if anyone would harm him if he returned to Guatemala. Mendoza-
Garcia explained that, according to a new village law, anyone who did not collaborate with the
new government at the time of the mayoral election had been “expelled from the village” and
“wouldn’t be allowed to live there anymore.” His mother had confirmed to him that he had been
expelled. The judge then asked if Mendoza-Garcia could live elsewhere in Guatemala.
Mendoza-Garcia said he “just [didn’t] want to go back to Guatemala,” because he was “afraid
something’s going to happen to [him],” although he had “no idea what might happen.”
After the IJ finished his questions, he summarized the voluntary departure process and
asked if Mendoza-Garcia wished to apply. Before responding to the question, Mendoza-Garcia
asked one more time if there was “a possibility for the Judge to give [him] more time to look for
a lawyer.” The IJ refused, and Mendoza-Garcia turned down voluntary departure. The
Government attorney then cross-examined Mendoza-Garcia, questioning him about family
members who still lived in his village and how long he had remained there after the contested
election. When the cross-examination was complete, the IJ announced his decision that
Mendoza-Garcia was not eligible for immigration relief.
Mendoza-Garcia appealed to the Board of Immigration Appeals (BIA or the Board), first
pro se and then through pro bono counsel. As relevant here, he argued that (1) he had not been

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given a reasonable opportunity to obtain counsel and had not waived his right to counsel, and
(2) the IJ failed to adequately develop the record. The BIA denied the appeal, reasoning that
(1) the denial of a continuance was within the IJ’s discretion because Mendoza-Garcia had six
weeks’ notice of counsel’s intended withdrawal, and (2) in light of Mendoza-Garcia’s admission
that he was never harmed or threatened and his inability to identify specific harm he feared upon
return, any error was not prejudicial. Mendoza-Garcia petitions for review.
II. ANALYSIS
A. Constitutional and Regulatory Background
Noncitizens in removal proceedings have long been protected by the Fifth Amendment’s
guarantee of due process of law. See Yamataya v. Fisher, 189 U.S. 86, 101 (1903) (holding that
a noncitizen may not “be taken into custody and deported without giving him all opportunity to
be heard” because “[n]o such arbitrary power can exist where the principles involved in due
process of law are recognized”). Removal “visits a great hardship on the individual and deprives
him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be
exercised lest the procedure by which he is deprived of that liberty not meet the essential
standards of fairness.” Bridges v. Wixon, 326 U.S. 135, 154 (1945). But we have also been clear
for decades that the Sixth Amendment right to appointed counsel in criminal proceedings does
not apply to civil removal proceedings. See Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017,
1022 n.6 (6th Cir. 1999); see also Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). Procedural
challenges to removal proceedings—including counsel-related challenges—are therefore
evaluated under the due process “fundamental fairness” framework. See, e.g., Denko, 351 F.3d
at 723–24.
We have addressed the scope of the right to counsel under the Fifth Amendment in
immigration proceedings many times. We stated decades ago that “[w]here an unrepresented
indigent alien would require counsel to present his position adequately to an immigration judge,
he must be provided with a lawyer at the Government’s expense. Otherwise, ‘fundamental
fairness’ would be violated.” Aguilera-Enriquez v. INS, 516 F.2d 565, 568 n.3 (6th Cir. 1975).
More recently, on the basis that there is no “right to government-provided counsel in civil

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litigation,” we stated that “[t]he Fifth Amendment simply does not guarantee the right to counsel
or, it follows, the right to effective counsel in removal proceedings.” Al-Saka v. Sessions,
904 F.3d 427, 434 (6th Cir. 2018). It is arguable that the statements from each case fall within
the arena of dicta. See id. at 435 (White, J., concurring) (deeming the opinion’s discussion of
constitutional requirements “unnecessary”). Even so, this line of cases makes clear that we have
consistently endorsed the Supreme Court’s requirement that removal proceedings “meet the
essential standards of fairness.” Bridges, 326 U.S. at 154. And we have defined those standards
to include, at a minimum, the due process rights of a noncitizen “to make his case before the
immigration authorities”—and, if he wishes, to “hire counsel” to do so. Al-Saka, 904 F.3d at
434. Thus, a noncitizen in removal proceedings has a due process right to be represented by
retained counsel.
Due process requirements also adhere in cases involving pro se petitioners. As several
other circuits have recognized,
it is the IJ’s duty to fully develop the record. Because aliens appearing pro se
often lack the legal knowledge to navigate their way successfully through the
morass of immigration law, and because their failure to do so successfully might
result in their expulsion from this country, it is critical that the IJ scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts.
Al Khouri v. Ashcroft, 362 F.3d 461, 464–65 (8th Cir. 2004) (citations and internal quotation
marks omitted) (quoting Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)); see also Delgado
v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007) (“We also recognize that the IJ has an affirmative
obligation to help establish and develop the record in the course of such proceedings, especially
when, as here, an alien is unrepresented by counsel.” (citations and internal quotation marks
omitted)); Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002) (“[T]he IJ . . ., unlike an Article III
judge, is not merely the fact finder and adjudicator but also has an obligation to establish the
record.” (citing, among others, Richardson v. Perales, 402 U.S. 389, 410 (1971) (finding that an
administrative law judge “acts as an examiner charged with developing the facts”), and Charles
H. Koch, Jr., Administrative Law and Practice § 5.25 (2d ed. 1997) (noting that “the presiding
official is pivotal to the factfinding function of an evidentiary hearing and hence, unlike the trial
judge, an administrative judge has a well established affirmative duty to develop the record”)).

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We have fleshed out the duty to develop the record in the context of social security
hearings. See Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1052 (6th Cir. 1983).
Noting the danger to claimants lacking counsel and familiarity with hearing procedures, we
explained: “To satisfy this special duty the administrative law judge must scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts. He must be
especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are
elicited.” Id. (citations and internal quotation marks omitted). Pro se noncitizens in removal
proceedings likewise lack familiarity with or comprehension of the complex system of
immigration laws. We agree with our sister circuits that to provide a fundamentally fair
proceeding, immigration judges are bound by the recognized duty to help pro se parties develop
the record.
Noncitizens also have “a statutory right to counsel.” Ibarra-Reina v. Lynch, 651 F.
App’x 427, 431 (6th Cir. 2016) (citing 8 U.S.C. § 1362). “Accordant with this statutory right, an
alien must knowingly waive representation, and immigration judges must take pains to ensure
that an alien’s rights are protected when counsel wishes to withdraw.” Id. (citing Ramirez v. INS,
550 F.2d 560, 565 (9th Cir. 1977), and Al Khouri, 362 F.3d at 464–65). Accompanying
regulations provide that an IJ must, among other requirements, “[a]dvise the respondent of his or
her right to representation, at no expense to the government, by counsel of his or her own
choice” and “[a]dvise the respondent of the availability of pro bono legal services for the
immigration court location at which the hearing will take place, and ascertain that the respondent
has received a list of such pro bono legal service providers.” 8 C.F.R. § 1240.10(a)(1), (2).
Regulations also empower an IJ to “grant a motion for continuance for good cause shown.” 8
C.F.R. § 1003.29.
B. Denial of a Continuance
Mendoza-Garcia first challenges the denial of a continuance. An IJ’s decision to deny a
continuance is reviewed for abuse of discretion. See Abu-Khaliel v. Gonzales, 436 F.3d 627, 634
(6th Cir. 2006). A denial amounts to an abuse of discretion if it “was made without a rational
explanation, inexplicably departed from established policies, or rested on an impermissible basis

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such as invidious discrimination.” Id. (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.
1982)).
As a formal matter, this claim could sound in due process or as a denial of a statutory
right. There is no need to address any distinction between the two because, in this context, the
statutory requirements satisfy any constitutional minimum. The relevant statutory requirements
are laid out in Matter of C-B-, 25 I. & N. Dec. 888 (B.I.A. 2012), a BIA case cabining IJ
discretion regarding continuances. According to the BIA, “to meaningfully effectuate the
statutory and regulatory privilege of legal representation where it has not been expressly waived,
the Immigration Judge must grant a reasonable and realistic period of time to provide a fair
opportunity for a respondent to seek, speak with, and retain counsel.” Id. at 889. In addition,
“for a waiver to be valid, an Immigration Judge must generally (1) inquire specifically as to
whether a respondent wishes to continue without a lawyer and (2) receive a knowing and
voluntary affirmative response.” Id. at 890 n.1. In that case, the noncitizen appeared
unrepresented at an initial master calendar hearing and told the IJ “that he wanted to be removed
that day.” Id. at 889. But when the IJ questioned him later, he had changed his mind and wanted
more time. Id. The Board explained that after this “change of heart,” the IJ should have asked
for clarification and ruled on the request for a continuance; she erred by instead proceeding
directly to the merits. Id. at 890. If the IJ in this case “inexplicably departed from established
policies” articulated in Matter of C-B-, that would qualify as an abuse of discretion. Abu-
Khaliel, 436 F.3d at 634 (citation omitted).
We begin with the waiver analysis. Mendoza-Garcia told the IJ that he wanted “a little
bit more” time to find a new attorney and expressed concern that his attorney was “going to
leave [him] by [him]self.” After the IJ explained that he would ask “questions to help
[Mendoza-Garcia] develop [his] testimony,” he indicated that he had no objection to his
counsel’s withdrawal. Later, after the IJ finished questioning him, Mendoza-Garcia asked again,
“Is there a possibility for the Judge to give me more time to look for a lawyer?” The IJ refused,
and Mendoza-Garcia responded, “Then I just leave it in your hands whatever you want to do
with me.” This interaction does not amount to a “knowing and voluntary” waiver of rights.
Matter of C-B-, 25 I. & N. Dec. at 890 n.1. Mendoza-Garcia repeatedly indicated that he did not

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want to proceed without counsel and only agreed that he had no objection the third time he was
asked. Even if that eventual concession could amount to waiver, he later renewed his request for
time to retain counsel. The Board made clear in Matter of C-B- that an IJ may not rely on a
waiver that is later rescinded. Id. at 890. Because Mendoza-Garcia did not “expressly waive[]”
his right to counsel, the IJ was required to “grant a reasonable and realistic period of time to
provide a fair opportunity for [him] to seek, speak with, and retain counsel.” Id. at 889.
Mendoza-Garcia was entitled to have that reasonable and realistic period after he knew
that his retained counsel would no longer be representing him. For example, the Ninth Circuit
has explained that the right to counsel was denied when an IJ “declin[ed] unreasonably to grant
even a brief continuance so that [the noncitizen] could locate and appear with his attorney, whom
the IJ had been told was in the building in another courtroom.” Hernandez-Gil v. Gonzales, 476
F.3d 803, 808 (9th Cir. 2007). Regardless of the 16 months that had elapsed since the initial
hearing, the IJ was still required to “take reasonable steps to ensure that the immigrant’s statutory
right to counsel is honored.” Id. Here, too, the years that passed between the initial six-month
continuance and the merits hearing are not relevant. The question is whether Mendoza-Garcia
had a reasonable amount of time to find new counsel once he learned his attorney was
withdrawing.
The relevant time period begins from one of four dates: (1) approximately six weeks
before the hearing, on September 25, when—according to counsel’s withdrawal motion—he
“communicated the remaining obligation to [Mendoza-Garcia] and his family”; (2) ten days
before the hearing, on November 3, when—again according to counsel’s motion—Mendoza-
Garcia “called Counsel . . . claiming to be unable to comply”; (3) one week before the hearing,
on November 6, when the motion to withdraw was filed; or (4) the day of the hearing, November
13, when the motion to withdraw was granted. We consider it highly unlikely that any of the
three later dates—all amounting to less than two weeks’ notice—would provide a reasonable and
realistic period to find counsel.
The BIA, however, credited the earliest of these dates, citing the withdrawal motion and
reasoning that Mendoza-Garcia “[did] not contest former counsel’s assertion that he alerted the
respondent of the need to comply with their 2011 representation agreement approximately

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6 weeks before the respondent’s final removal hearing.” Mendoza-Garcia still does not contest
that assertion. Instead, he argues that, although he was “aware of the breakdown in his attorney-
client relationship, he remained represented until his counsel’s last-minute motion to withdraw
was granted—which happened to be the same day as his merits hearing.” Though that may be
so, he was on notice of the need to pay his attorney or find new representation, and other courts
have deemed six weeks a reasonable period to obtain counsel. See Delcimard v. Mukasey, 283 F.
App’x 450, 452 (9th Cir. 2008) (mem.) (two continuances, totaling six weeks, to retain counsel);
Alsamhouri v. Gonzales, 484 F.3d 117, 124 (1st Cir. 2007) (representation terminated six weeks
before the hearing); Jean v. Gonzales, 435 F.3d 475, 483–84 (4th Cir. 2006) (motion to withdraw
filed six weeks before hearing). Mendoza-Garcia has not identified any cases—and we are
aware of none—finding that six weeks is not a reasonable period of time to obtain counsel.
We do not hereby endorse the practices employed by either the withdrawing attorney or
the IJ. But abuse of discretion is a demanding standard, and Mendoza-Garcia has not argued that
the BIA misunderstood the timeline or that his case presented unusual circumstances aside from
his inability to pay counsel’s fee. See, e.g., Aguilera-Enriquez, 516 F.2d at 568 n.3. Denying the
continuance cannot be said to be irrational, discriminatory, or a departure from established
policies. See Abu-Khaliel, 436 F.3d at 634. We therefore conclude that the IJ did not abuse his
discretion in denying Mendoza’s request for a continuance.
C. Failure to Develop the Record
Mendoza-Garcia’s briefing raises another potential due process violation: the IJ’s failure
to fully develop the record. The BIA concluded that any failure in questioning was immaterial
“[i]n light of the respondent’s unambiguous testimony that he was not harmed or threatened in
the past, and did not fear specific harm upon return to Guatemala.” We “review the Board’s
legal conclusions de novo but afford ‘substantial deference’ to its ‘interpretation of the INA and
accompanying regulations.’” Hernandez-Perez v. Whitaker, 911 F.3d 305, 312 (6th Cir. 2018)
(quoting Shaya v. Holder, 586 F.3d 401, 405 (6th Cir. 2009)).
In this case, the IJ posed open-ended questions that could elicit relevant responses. He
asked about threats, harm, and fear, and he gave Mendoza-Garcia an opportunity at the end of

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the hearing to add whatever else he wished to say. As we explained in Lashley, however, it need
not be the case that the judge “intended to produce an unfair result.” 708 F.2d at 1052. In that
case, the hearing “was fully transcribed in approximately 11 pages” and the applicant “possessed
limited intelligence, was inarticulate, and appeared to be easily confused.” Id. Thus, although
the judge asked relevant questions, we held that “the superficial quality of the questioning
deprived Lashley of a full and fair hearing.” Id. at 1053.
Here, the IJ’s questioning about Mendoza-Garcia’s eligibility for relief takes up less than
seven double-spaced transcript pages. Because the hearing proceeded through two layers of
translation, eliciting those seven pages doubtless took a substantial amount of time—but
responses elicited through this process were unusually prone to error and confusion. Despite that
possibility, the IJ rarely asked for clarification and moved quickly from topic to topic. For
example, when Mendoza-Garcia was first asked if he had ever been harmed in Guatemala, he
responded, “I do not want to lie but, no, no, and that’s why I decided to come over here.” The
interpreter repeated the translation, but the IJ did not pose the obvious follow-up question to that
internally contradictory statement—did Mendoza-Garcia mean to say that he came to the United
States because he had not been harmed, or because he had? After the very next question,
Mendoza-Garcia asked for an opportunity to give “further explanation” about his statement that
he had not been threatened in Guatemala. The IJ said he would be permitted to “say whatever
[he] want[ed] to say”—but then never returned to the issue of threats. Instead, the IJ asked if
there was “any person or group that [Mendoza-Garcia] fear[ed] harm from in Guatemala.”
Mendoza-Garcia responded that he did not fear “a group, per se” but that his town had been
“divided in two groups” and one group “would come to the village to harm the village.” Rather
than following up to determine who comprised that group or how they harmed villagers like
Mendoza-Garcia, the IJ asked for the population of the village.
Similarly, Mendoza-Garcia repeatedly stated that he was afraid to return to Guatemala
but did not know what would happen to him if he returned. The IJ asked about this fear more
than once but did not request examples of what Mendoza-Garcia feared or explain the need for
specificity.

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Whether this interaction amounts to an unconstitutional failure to develop the record is a
close call. We need not resolve the issue, however, because this type of procedural due process
claim requires a showing of prejudice.1 See Graham v. Mukasey, 519 F.3d 546, 549–50 (6th Cir.
2008); see also Al Khouri, 362 F.3d at 466–67; Agyeman, 296 F.3d at 884. To prove prejudice,
he must show that his “claims could have supported a different outcome.” Sako v. Gonzales,
434 F.3d 857, 864 (6th Cir. 2006); see also Jashari v. Sessions, 722 F. App’x 481, 493 (6th Cir.
2018).2
Mendoza-Garcia argues that the absence of counsel is itself “the epitome of prejudice,”
and that courts should not indulge in “nice calculations” as to the amount of prejudice incurred.
But in the immigration context, we require a showing that these claims could have supported a
different outcome. See Sako, 434 F.3d at 864. Because Mendoza-Garcia has not made that
showing, his due process challenge necessarily fails.
III. CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
1Some circuits have held that certain procedural violations in which the Government failed to follow its
own regulations do not require a showing of prejudice. See, e.g., Leslie v. Attorney Gen., 611 F.3d 171, 182 (3d Cir.
2010); Picca v. Mukasey, 512 F.3d 75, 78–79 (2d Cir. 2008). One commonly litigated example—at issue in both
Leslie and Picca—is the failure to provide the list of pro bono attorneys, as required by 8 C.F.R. § 1240.10(a)(2).
Mendoza-Garcia might have a claim under that regulation. He appears to have received a list of pro bono
organizations at his very first hearing in April 2011. The list was not mentioned at any of his subsequent hearings,
including when he told the IJ at his merits hearing six and a half years later that he was having “financial issues.”
It is at least arguable that failing to provide the list when he indicated he could not afford counsel and after so many
years had passed was a regulatory violation. But Mendoza-Garcia did not raise this claim before the BIA or this
court. We therefore do not consider whether prejudice would be required to succeed on such a challenge.
2In some cases, we have used different language when describing the prejudice standard, requiring the
petitioner to show that the procedural violation “led to a substantially different outcome.” See, e.g., Zheng v. Lynch,
819 F.3d 287, 297 (6th Cir. 2016); Gaye v. Lynch, 788 F.3d 519, 527 (6th Cir. 2015); Graham, 519 F.3d at 549–50.
There may not be a meaningful difference between these two framings. For example, in the foundational case in the
“substantially different outcome” line, we determined that the petitioner was barred from relief because he had been
convicted of an aggravated felony. See Graham, 519 F.3d at 551. That result would have been the same under any
framing of the prejudice standard. That said, if the two framings conflict, the earliest articulation—from our
research, that in Sako—controls. See United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008). Sako’s
permissive formulation is also more consistent with the prejudice standards used by other circuits, see Al Khouri,
362 F.3d at 466 (collecting permissive prejudice standards), and with our prejudice requirements in other contexts,
see, e.g., Girts v. Yanai, 501 F.3d 743, 757 (6th Cir. 2007) (Strickland prejudice is satisfied “ if there is a reasonable
probability that at least one juror would have struck a different balance” (citation omitted)); Apanovitch v. Houk,
466 F.3d 460, 475 (6th Cir. 2006) (Brady requires “a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different” (citation omitted)).

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