Julio Freza v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 21-2259

_______________

JULIO FREZA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________

On Petition for Review of a Decision of the

Board of Immigration Appeals

(Agency No. A078-833-855)

Immigration Judge: Jason L. Pope

_______________

Argued: June 7, 2022

Before: AMBRO, RENDELL, and FUENTES,

Circuit Judges.

(Filed: September 15, 2022)

______________

Peter R. Crossley [Argued]

Rebecca Hufstader

Legal Services of New Jersey

100 Metroplex Drive, Suite 402

Edison, NJ 08817

Counsel for Petitioner

Brendan P. Hogan [Argued]

Marie V. Robinson

Michele Y. F. Sarko

Office of Immigration Litigation

United States Department of Justice

PO Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

______________

OPINION OF THE COURT

______________

FUENTES, Circuit Judge.

Julio Freza petitions for review of a decision of a final

order of removal issued by the Board of Immigration Appeals

(“BIA”), which affirmed the Immigration Judge’s (“IJ”)

decision that Freza was removable and ineligible for relief

under the Convention Against Torture (“CAT”). The primary

issue on appeal is whether the IJ’s denial of a 30-day

continuance for Freza’s counsel to prepare to adequately

represent him violated Freza’s right to counsel. Because we

conclude that it did, we will grant Freza’s petition for review,

vacate the BIA’s decision, and remand for further proceedings

consistent with this opinion.

2

I.

Freza is a native and citizen of the Dominican Republic

who entered the United States in 1998. He adjusted status to

lawful permanent resident in March 2004. In June 2012, he

was arrested and eventually convicted in the Somerset County

Superior Court of New Jersey for one count of robbery, in

violation of N.J. Stat. Ann. § 2C:15-1; two counts of

aggravated assault with a firearm, in violation of N.J. Stat.

Ann. § 2C:12-1(b)(4); one count of burglary, in violation of

N.J. Stat. Ann. § 2C:18-2; and one count of possession of a

weapon for an unlawful purpose, in violation of N.J. Stat. Ann.

§ 2C:39-4(a).1 In December 2015, he was sentenced to ten

years’ imprisonment for these offenses. On March 22, 2019,

while Freza was serving his ten-year sentence at Northern State

Prison in New Jersey (“Northern State”), the Department of

Homeland Security (“DHS”) filed a Notice to Appear (“NTA”)

and initiated removal proceedings against him. He was

charged as removeable on two grounds: (1) under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having been convicted of an

aggravated felony, specifically a theft offense as defined by 8

U.S.C. § 1101(a)(43)(G); and (2) under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having been convicted of an

aggravated felony of a crime of violence, as defined by 8

U.S.C. § 1101(a)(43)(F). DHS later amended the NTA to add

a third charge of removability under 8 U.S.C § 1227(a)(2)(C),

alleging that Freza was removable for having been convicted

of a firearms offense.

1

The original charges also included criminal restraint, in

violation of N.J. Stat. Ann. § 2C:13-2(a); and unlawful

possession of a weapon, in violation of N.J. Stat. Ann. § 2C:39-

5(c)(1).

3

Initially, Freza’s removal proceedings took place

through the Institutional Hearing Program docket at the

Elizabeth Immigration Court (“EIC”) in Elizabeth, New

Jersey. Freza’s first master calendar hearing occurred on

January 28, 2020. The IJ advised Freza of his right to be

represented and gave him more time to find an attorney. Freza

told the IJ that he had attempted to contact pro bono legal

organizations, but none could take his case at the time. He also

advised the IJ that he could not hire a lawyer because he had

been in prison for seven years and that had “deflated [his]

resources,” but that he “would definitely try to get one.”2

Freza’s second master calendar hearing occurred on February

18, 2020. The IJ proceeded with Freza pro se, as he had still

been unable to retain an attorney. The IJ sustained the first two

charges of removability but dismissed the third. On March 18,

2020, Freza filed an application for asylum, withholding of

removal, and relief under the CAT. Due to staffing shortages

at the prison resulting from the COVID-19 pandemic, Northern

State was unable to produce Freza for his next two video

hearings at the EIC scheduled for April 21, 2020 and May 19,

2020. The IJ was thus forced to continue Freza’s case until

July 28, 2020. That hearing was continued as well due to audio

problems at the EIC. The IJ then rescheduled Freza’s hearing

for September 22, 2020. On that day, Northern State advised

the court that it could not produce Freza again. Freza’s third

master calendar hearing finally took place on October 20,

2020, with Freza appearing pro se via video. The merits

hearing on his application for relief was eventually set for

December 16, 2020. On November 4, 2020, Freza was

transferred to U.S. Immigration and Customs Enforcement

(“ICE”) custody at the Essex County Correctional Facility

2

A.R. 130.

4

(“ECCF”) in Newark, New Jersey. The day of Freza’s merits

hearing, the EIC closed due to a snowstorm, forcing the

hearing to be canceled. Freza’s merits hearing was

rescheduled for January 5, 2021.

Rebecca Wyss of the American Friends Service

Committee, a pro bono legal services provider in New Jersey,

first learned of Freza on December 30, 2020 and arranged with

ECCF to speak with him at the facility’s earliest available

appointment, which was the day before the rescheduled merits

hearing. On January 5, 2021, Wyss filed a notice of appearance

and a written motion to continue Freza’s merits hearing for at

least 30 days so she could prepare to adequately represent

Freza. At the merits hearing, Wyss explained that she had been

retained approximately 24 hours before and had not had an

opportunity to review the record. She further argued that Freza

had difficulties getting evidence for his case and noted that he

had suffered from COVID-19 for “quite a period.”3 She also

asserted that, while Freza was at Northern State, he did not

have access to certain pro bono legal services that are available

to individuals in ICE custody in New Jersey. DHS opposed the

motion. The IJ denied the motion to continue, finding that

Freza had failed to establish good cause to continue the case.

The IJ relied on the fact that Freza had been aware of his merits

hearing “for quite some time” given that it was originally

scheduled for December 16, 2020 and he had been in ICE

custody for more than two months.4 Wyss moved to withdraw

since she could not “provide effective assistance of counsel,”

and her motion was granted.5 Freza then asked the IJ for an

3

A.R. 180.

4

A.R. 185.

5

A.R. 186.

5

opportunity to try to obtain new counsel, but the IJ denied his

request, so the merits hearing continued with Freza proceeding

pro se. During the merits hearing, Freza testified that he feared

Oliver Almonte, his co-defendant from his criminal case, who

had been deported to the Dominican Republic in early 2012.

He testified that while he was in criminal custody awaiting trial

in August 2012, he was brutally attacked by other inmates who

were associated with Almonte. According to Freza, he was

seriously injured in the attack and suffered a broken jaw. He

also testified that a couple of months prior, Almonte threatened

his girlfriend by saying “that he had two bullets, one for her,

one for me.”6 Freza submitted documentary evidence

including: (1) a partial copy of the sentencing memorandum

from his criminal case; (2) a copy of the news article covering

the attack on him; (3) character letters from family and friends;

and (4) certificates from courses he took at Northern State. The

IJ entered the State Department’s Dominican Republic 2019

Human Rights Report into the record on Freza’s behalf. In an

oral decision issued at the hearing, the IJ determined that

Freza’s conviction for robbery constituted an aggravated

felony and a particularly serious crime, and that he was thus

ineligible for asylum and withholding of removal.7 The IJ also

denied Freza’s application for deferral of removal under the

CAT, concluding that he had failed to show that he would more

likely than not be tortured upon his return to the Dominican

Republic. Specifically, the IJ found that the attack on Freza

in the United States “was too attenuated to conclude that the

respondent would be harmed by anybody associated with Mr.

6

A.R. 201.

7

Freza does not appeal the IJ’s decision concerning his

ineligibility for asylum or withholding of removal.

6

Almonte . . . if he is returned to the Dominican Republic.”8 The

IJ primarily relied on the fact that all contact with Almonte had

ceased back in 2012 and that, while Freza “believes Mr.

Almonte was deported back to the Dominican Republic . . . [,]

he has no direct knowledge about his whereabouts at this time

and does not even know if Mr. Almonte is still alive or still in

the Dominican Republic.”9 The IJ also concluded that Freza

failed to demonstrate that the Dominican government would

consent or acquiesce to the feared torturous acts. As a result,

the IJ ordered Freza removed to the Dominican Republic.

Freza timely appealed the IJ’s decision to the BIA, which

dismissed Freza’s appeal on June 17, 2021. First, the BIA

agreed that Freza was removable as a noncitizen convicted of

an aggravated felony. Second, the BIA agreed that Freza was

ineligible for asylum or withholding of removal because his

robbery conviction was a particularly serious crime. Third, the

BIA agreed with the IJ that Freza had not established good

cause for a continuance of his merits hearing. Specifically, the

BIA noted that Freza’s first hearing was nearly a year prior to

his merits hearing and his case was continued six times after

the initial hearing. The BIA also dismissed Freza’s due process

arguments, including that the IJ failed to fully develop the

record. Lastly, the BIA agreed that Freza failed to qualify for

CAT deferral. This petition for review followed.

II.

We have jurisdiction to review final orders of the BIA

under 8 U.S.C. § 1252(a)(1). However, because Freza is

subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), “the

8

A.R. 105–06.

9

A.R. 106.

7

statute constrains our jurisdiction to ‘constitutional claims or

questions of law.’”10 We exercise de novo review over these

claims or questions.11 “Where the BIA affirms and partially

reiterates the IJ’s discussions and determinations, we look to

both decisions.”12

III.

Freza raises two principal arguments on appeal: (1) that

the IJ violated his due process right to a fundamentally fair

hearing and his statutory right to counsel by denying his

counsel’s request for a continuance so that she could prepare

to adequately represent him; and (2) that the BIA and the IJ

misapplied the legal standard in evaluating his application for

CAT relief. Because we agree with Freza on the first issue, our

analysis will start and end there.

A.

The Due Process Clause of the Fifth Amendment

guarantees noncitizens “the right to effective assistance of

counsel in removal proceedings” and a “fundamentally fair

hearing.”13 An individual’s right to counsel is further protected

by statute: “the alien shall have the privilege of being

represented, at no expense to the Government, by counsel of

10

Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017)

(quoting Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008)

(en banc)); 8 U.S.C. §§ 1252(a)(2)(C), (D).

11

Myrie, 855 F.3d at 515.

12

Id. (citing Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.

2009)).

13

Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 385 (3d Cir.

2020).

8

the alien’s choosing who is authorized to practice in such

proceedings.”14 This statutory right is also reflected in the

immigration regulations.15

A noncitizen asserting a due process violation must

generally show (1) “that he was prevented from reasonably

presenting his case,” and (2) “that substantial prejudice

resulted.”16 To show substantial prejudice, the noncitizen must

establish “that the infraction ha[d] the potential for affecting

the outcome” of their removal proceedings.17

To determine whether a noncitizen was prejudiced, we

must “consider the record in relation to the potential grounds

asserted for relief,” here CAT protection.18 A petitioner

seeking CAT protection must demonstrate that “it is more

likely than not that he . . . would be tortured” if returned to his

country of origin.19 He must show, in other words, that “severe

pain or suffering” will likely be “inflicted by or at the

14

8 U.S.C. § 1229a(b)(4)(A); see also 8 U.S.C. § 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.”).

15

See, e.g., 8 C.F.R. § 292.5 (“Whenever an examination is

provided for in this chapter, the person involved shall have the

right to be represented by an attorney. . . .”).

16

Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir.

2017).

17

Id. (internal citation and quotation marks omitted).

18

Id.

19

Kaita v. Att’y Gen., 522 F.3d 288, 300 (3d Cir. 2008).

9

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”20

However, proving substantial prejudice is not always

required. “[W]hen an agency promulgates a regulation

protecting fundamental statutory or constitutional rights of

parties appearing before it, the agency must comply with that

regulation. Failure to comply will merit invalidation of the

challenged agency action without regard to whether the alleged

violation has substantially prejudiced the complaining party.”21

We have previously recognized that the right to counsel is

fundamental to the proceeding’s fairness and that “[t]he right

to counsel is a particularly important procedural safeguard

because of the grave consequences of removal.”22

Freza’s “due process claim is inextricably linked with

the [IJ’s] denial of the continuance request.”23 Freza’s

“assertion that his right to counsel was violated is based solely

on the [IJ’s] decision to deny the continuance request.”24 Thus,

we treat “the two claims [as] one and the same.”25 The question

of whether the denial of a continuance constitutes a violation

of Freza’s due process and statutory right to counsel, and was

therefore an abuse of discretion, “must be resolved on a case

by case basis according to the facts and circumstances of each

case.”26

20

Id. (citations omitted).

21

Leslie v. Att’y Gen., 611 F.3d 171, 180 (3d Cir. 2010).

22

Id. at 181.

23

Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373 (3d Cir. 2003).

24

Id. at 373–74.

25

Id. at 374.

26

Id. at 377 (internal citation and quotation marks omitted).

10

B.

We are hard pressed to find a more compelling set of

facts constituting a violation of Freza’s due process and

statutory right to counsel. After Freza diligently sought

counsel while incarcerated, he was finally able to obtain

counsel the day before his rescheduled merits hearing.

However, when that counsel moved for a 30-day continuance

so that she could prepare to adequately represent him, the IJ

denied the motion, and the BIA affirmed, relying primarily on

the fact that Freza’s initial hearing had taken place almost a

year before. The IJ and BIA plainly ignored that the delay was

due to circumstances completely outside Freza’s control.

Indeed, this was Freza’s first request for a continuance of his

merits hearing and there was no evidence to indicate that the

request was a dilatory tactic by Freza or his counsel.27 In fact,

it was reasonable that counsel would request such a

continuance, as she had only met with Freza for the first time

less than 24 hours before the merits hearing and she had not

had time to review the record. Denying the continuance under

these circumstances was clearly an abuse of discretion and a

violation of Freza’s due process and statutory right to counsel.

Contrary to the Government’s assertions, this case

closely tracks Chlomos v. INS, 516 F.2d 310 (3d Cir. 1975).

There, we held that a petitioner’s right to counsel was violated

where the petitioner clearly expressed his desire to be

represented by counsel but ultimately went unrepresented

because he was unable to contact his lawyer, at least in part due

27

Cf. Chlomos v. INS, 516 F.2d 310, 314 (3d Cir. 1975) (“We

do not condone unnecessary delay or dilatory tactics through

the ruse of counsel’s unavailability.”).

11

to being incarcerated and because the IJ had failed to notify his

counsel.28 We explained that

[w]hile two continuances were granted in this

case, as a practical matter, they were inadequate

to make the services of his chosen counsel

available to petitioner. There was no necessity

for the hasty hearing by the immigration judge,

and arrangements could have been made which

would have been reasonable for both the

government and petitioner’s counsel. We do not

condone unnecessary delay or dilatory tactics

through the ruse of counsel’s unavailability.

Efficient management of the administrative

process can prevent such abuse when it appears.

That did not appear to be a problem here.29

Similarly, here “[t]here was no necessity for the hasty hearing

by the immigration judge,” and other “reasonable”

“arrangements could have been made.”30 In their decisions, the

IJ and BIA rely primarily on the fact that there was more than

a year between Freza’s initial hearing and his merits hearing,

but ignore that this was due to reasons completely out of

Freza’s control. He was not engaging in “dilatory tactics

through the ruse of counsel’s unavailability.”31 The IJ and the

28

Id. at 312–14.

29

Id. at 314.

30

Id.

31

Id.

12

BIA also ignore the realities of obtaining legal counsel while

detained.32

The Government’s reliance on Ponce-Leiva v. Ashcroft,

331 F.3d 369 (3d Cir. 2003), is misplaced. In that case, we

held that a petitioner’s right to counsel was not violated where

the IJ denied a request for a continuance from petitioner’s

counsel and proceeded with petitioner’s merits hearing without

counsel because counsel had been informed of the date of the

hearing eight months prior and had agreed to that date.33 We

explained that petitioner’s asylum claim lacked merit, and that

it was “reasonable and proper” for the IJ to consider this

“apparent lack of merit . . . when deciding to proceed without

counsel.”34

The facts of this case are plainly distinguishable. Unlike

the petitioner in Ponce-Leiva, Freza was not previously

represented. And, unlike counsel in Ponce-Leiva who

inexplicably missed his client’s hearing, Freza’s chosen

32

See Hernandez Lara v. Barr, 962 F.3d 45, 55 (1st Cir. 2020)

(“[D]ata shows that detention significantly decreases the

ability of respondents in immigration proceedings to obtain

counsel.” (citing Ingrid V. Eagly & Steven Shafer, A National

Study of Access to Counsel in Immigration Court, 164 U. Pa.

L. Rev. 1, 32 (2015)); see also Usubakunov v. Garland, 16

F.4th 1299, 1305 (9th Cir. 2021) (describing a detained

applicant’s process of obtaining counsel as “long and

frustrating”).

33

Ponce-Leiva, 331 F.3d at 375.

34

Id. at 377 (“It was clear at the outset . . . that [petitioner’s]

claim for asylum was based solely on economic reasons, and

therefore would not merit relief.”).

13

counsel appeared and requested 30 days to prepare to

adequately represent him. The IJ here abused his discretion in

denying that request, thus rendering Freza’s right to counsel

meaningless. Further, although the BIA ultimately concluded

that Freza’s claim lacked merit, the IJ did not consider a facial

lack of merit when deciding to deny Freza’s counsel’s request

for a 30-day continuance.35

The Government also argues that because the IJ

“advised Freza of his right to counsel and ensured that he had

received the free legal services list at his very first hearing on

January 28, 2020” and “continued Freza’s hearing at his

request so he could attempt to obtain counsel,” the agency did

not violate Freza’s statutory and regulatory right to counsel.36

We disagree. The Government is right that the IJ initially

complied with Freza’s statutory and regulatory right to

counsel. However, that does not preclude our finding that the

IJ later violated those rights when the IJ denied a motion for a

continuance for a mere 30 days so that Freza’s newly obtained

counsel could prepare to adequately represent him, particularly

when she had already filed an appearance and was present at

the hearing. Thus, we hold that, under the particular facts of

this case, no showing of prejudice is required because the IJ

violated Freza’s statutory and regulatory rights.

Even assuming arguendo that Freza needs to show

substantial prejudice, he only needs to show that the presence

of counsel “had the potential for affecting the outcome of the

35

Cf. id. We express no view on the merits of Freza’s CAT

claim.

36

Resp. Br. at 32.

14

proceedings.”37 This he has done. At his merits hearing, he

testified that he was beaten up by his criminal co-defendant,

Oliver Almonte. He also testified that Almonte threatened his

girlfriend. The IJ asked him how he knew Almonte was still

alive, and whether he knew if Almonte worked for the

Dominican government. Counsel for the Government also

asked Freza whether he had “any evidence that Mr. Almonte

exists.”38 Freza stated that he did not know whether Almonte

was still alive, did not know whether Almonte worked for the

Dominican government, and did not have proof of Almonte’s

existence. In denying relief, the IJ recognized that “some of

the things that happened have been harm here in the United

States, in the Somerset County Jail in 2012 by individuals who

may have been connected to Mr. Almonte.”39 Ultimately, the

IJ concluded “that [was] too attenuated to conclude that the

respondent would be harmed by anybody associated with Mr.

Almonte.”40 The IJ relied in part on the fact that Freza “has no

direct knowledge about [Mr. Almonte’s] whereabouts at this

time and does not even know if Mr. Almonte is still alive or

still in the Dominican Republic.”41 Counsel for Freza could

have obtained documentation regarding Almonte’s

whereabouts and presented this information to the IJ. The

presence of counsel thus “ha[d] the potential for affecting the

outcome.”42

37

Serrano-Alberto, 859 F.3d at 213.

38

A.R. 205.

39

A.R. 105.

40

A.R. at 106.

41

Id.

42

Serrano-Alberto, 859 F.3d at 213. In a footnote, the

Government asserts that Freza has waived his argument that

“[c]ounsel could have investigated Almonte’s whereabouts”

15

Lastly, the Government asserts that Freza failed to show

that the IJ abused his discretion in denying Freza’s motion to

continue. As discussed above, Freza’s due process claim is

treated the same as the IJ’s denial of the request for a

continuance. Because we conclude that the IJ violated Freza’s

due process and statutory right to counsel in denying Freza’s

motion to continue, it follows that the IJ abused his discretion

in denying the motion to continue.

and “obtained evidence that Mr. Almonte was deported back

to the Dominican Republic in 2012” by failing to raise it before

the BIA. Resp. Br. at 29 n.11 (quoting Pet’r. Br. at 34, 36).

However, as Freza correctly points out, he argued to the BIA

that his counsel could have obtained additional evidence. The

evidence cited in his appellate brief is a specific type of

evidence that his counsel could have obtained, and thus Freza

has not waived this argument. See United States v. Joseph, 730

F.3d 336, (3d Cir. 2013) (“Parties are free . . . to . . . more fully

explain an argument on appeal than they did in the District

Court.”). The Government also asserts that “[i]n any event,

that argument is besides the point” because “the IJ found

Freza’s testimony that Freza believed that Almonte was in the

Dominican Republic to be credible.” Resp. Br. at 29 n.11.

Although the IJ entered a favorable credibility determination,

in determining that Freza was not eligible for CAT relief, the

IJ still faulted Freza for not knowing whether Almonte was

alive and whether he worked for the Dominican government.

16

III.

For these reasons, we will grant Freza’s petition for

review, vacate the BIA’s decision, and remand to the BIA for

further proceedings consistent with this opinion.

17