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Keywords

hearingdue processvisanaturalizationliens
attorneydue processvisa

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Biwot v. Gonzales

Facts

Biwot, a citizen of Kenya, came to the United States on a non-immigrant student visa in 1996. He was involved in a dormitory brawl that resulted in a conviction for third-degree assault, prompting the former Immigration and Naturalization Service to charge him with failure to maintain his student status. At his first removal hearing, Biwot appeared without counsel and was given only five working days to secure representation, which he was unable to do due to his incarceration and the timing of the hearings.

Biwot, a citizen of Kenya, came to the United States on a non-immigrant student visa in 1996 after winning a full scholarship to attend Northwest College in Kirkland, Washington. In 1999, while he was still a student, Biwot was involved in a dormitory brawl that resulted in a conviction for third-degree assault.

Issue

Whether Biwot was denied his right to counsel when the Immigration Judge allowed him only five working days to obtain counsel while he was incarcerated.

Whether Biwot was denied his right to counsel when the Immigration Judge allowed Biwot, who was incarcerated and diligently seeking representation, only five working days to obtain counsel.

Rule

The right to counsel in immigration proceedings is rooted in the Due Process Clause and codified at 8 U.S.C. 1362 and 8 U.S.C. 1229a(b)(4)(A). IJs must provide aliens with reasonable time to locate counsel and permit counsel to prepare for the hearing.

The right to counsel in immigration proceedings is rooted in the Due Process Clause and codified at 8 U.S.C. 1362 and 8 U.S.C. 1229a(b)(4)(A).

Analysis

The court found that Biwot's situation was comparable to that of a previous case where the petitioner was also incarcerated and given insufficient time to secure counsel. The IJ's insistence on proceeding without allowing adequate time for Biwot to find representation constituted an abuse of discretion. The court emphasized that the IJ failed to acknowledge Biwot's diligent efforts to secure counsel and did not provide a reasonable opportunity for him to do so.

The court found that Biwot's situation is comparable to the predicament faced by Rios-Berrios. Both petitioners were incarcerated during the time they tried to obtain counsel, a condition that increases the difficulty of contacting prospective attorneys.

Conclusion

The appellate court granted the petition as to the denial of counsel claim and remanded the case to the IJ with instructions to provide Biwot with reasonable time to obtain counsel.

We GRANT the petition as to the denial of counsel claim and REMAND with instructions to remand to the IJ to provide Biwot with reasonable time to obtain counsel, to present evidence, and to make such claims as are available.

Who won?

Biwot prevailed in the case because the court found that his right to counsel was violated due to the inadequate time provided to secure representation.

Biwot prevailed in the case because the court found that his right to counsel was violated due to the inadequate time provided to secure representation.

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