Unreported / Non-Citable
Background
Kevin Alexander Ipina, a native and citizen of Guatemala, filed petitions for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) denied these applications, and the Board of Immigration Appeals (BIA) dismissed his appeal, agreeing with the IJ’s decision. Ipina appealed to the Ninth Circuit, challenging not only the substantive denials but also several due process violations he claimed to have suffered.
The critical procedural issue before the Ninth Circuit was whether Ipina was wrongfully denied the statutory right to obtain counsel. Ipina sought review of a decision that affected his immigration status and potential removal from the United States. The case was submitted for decision on June 30, 2026, and decided by a three-judge panel consisting of Circuit Judges Gould, Mendoza, and Desai.
The Court’s Holding
The Ninth Circuit granted Ipina’s petition, finding that he was denied a reasonable opportunity to obtain counsel in violation of due process requirements. Applying the five-factor test from Biwot v. Gonzales, the court examined whether the Immigration Judge gave Ipina reasonable time to secure representation, considering: (1) the realistic time necessary to obtain counsel; (2) the timeframe of requests for counsel; (3) the number of continuances granted; (4) barriers to obtaining counsel, such as detention or language barriers; and (5) whether the petitioner was acting in bad faith.
The court found that Ipina’s detention in April 2020—less than a month into the COVID-19 pandemic—presented extraordinary barriers to securing legal representation. Despite demonstrating diligent efforts to find counsel and secure funds for a private attorney willing to represent him during the pandemic emergency, Ipina was granted only two continuances and given just twenty-one business days before being forced to proceed pro se. The court rejected the IJ’s purported acceptance of Ipina’s waiver of counsel rights. Though Ipina initially asked to proceed pro se with the phrase “If I have to, yes,” the court found this equivocal response reflected compliance with the IJ’s directive rather than a knowing and voluntary waiver. Crucially, the IJ never inquired whether Ipina understood the implications of proceeding without counsel, nor did the IJ inform him that he could request another continuance.
Key Takeaways
- Immigration judges must provide meaningful opportunity to obtain counsel before accepting waiver of this fundamental right, particularly when detention, language barriers, or pandemic conditions create obstacles beyond the petitioner’s control.
- A statement of willingness to proceed pro se made in response to an immigration judge’s directive—without explicit inquiry into knowledge of the implications or alternatives—does not constitute a knowing and voluntary waiver.
- The right to counsel in immigration proceedings is rooted in the Due Process Clause and cannot be eliminated by a “myopic insistence upon expeditiousness”; courts will not tolerate treating the right as “an empty formality.”
Why It Matters
This decision reinforces critical protections for unrepresented immigrants in removal proceedings, a population already facing profound language and resource barriers. For California practitioners and immigration advocates, the case signals that federal courts will carefully scrutinize the procedural adequacy of hearings conducted during national emergencies or when clients face detention. Immigration judges cannot simply impose arbitrary timelines for securing counsel and then accept ambiguous pro se waivers without explicit colloquy.
The ruling has immediate practical significance for pending and future cases involving pandemic-era proceedings, but its reasoning extends beyond COVID-19 circumstances. Any situation involving significant barriers to counsel—incarceration, language barriers, lack of financial resources, or geographic isolation—now requires demonstrated deference from immigration judges. The Ninth Circuit’s insistence on fact-specific inquiry rather than bright-line rules means judges must evaluate each case’s unique circumstances before accepting a waiver of the right to counsel, ensuring that procedural efficiency does not sacrifice fundamental fairness in removal cases that can result in separation from family and exile from the United States.