Reasonable-and-Realistic Time to Obtain Counsel: Third Circuit Vacates Removal Order Where IJ Denied Final Continuance Without Notice or Express Waiver

Reasonable-and-Realistic Time to Obtain Counsel: Third Circuit Vacates Removal Order Where IJ Denied Final Continuance Without Notice or Express Waiver

Introduction

In Miguel Robles Corcuera v. Attorney General United States of America, the U.S. Court of Appeals for the Third Circuit granted a petition for review, vacated the Board of Immigration Appeals’ decision, and remanded for a new hearing after concluding that the Immigration Judge (IJ) violated the petitioner’s statutory and constitutional right to counsel. The panel majority held that, on the facts presented—including detention in a remote location, non-English proficiency, indigence, the passage of the winter holidays, and the absence of notice that the master calendar would be converted to a merits hearing—the IJ’s refusal to grant a final continuance prevented the petitioner from reasonably presenting his case. The panel further reaffirmed that violations of regulations safeguarding the right to counsel require automatic remand without a need to show prejudice.

A dissent would have denied relief at the threshold, arguing that a paroled noncitizen who has not effected an “entry” cannot invoke the Fifth Amendment, and that, in any event, the petitioner received all process afforded by statute and regulation. The case is designated “not precedential,” but it synthesizes and applies robust right-to-counsel doctrine within the Third Circuit, offering practical guidance for immigration courts, the BIA, and practitioners.

Key Parties and Posture

  • Petitioner: Miguel Angel Robles Corcuera, a citizen of Mexico, paroled into the United States after being charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i).
  • Respondent: Attorney General of the United States.
  • Agency decisions: IJ denied a further continuance, deemed counsel waived, found inadmissibility, and ordered removal; BIA dismissed appeal and declined to remand.
  • Third Circuit: Granted the petition for review; vacated and remanded for a new hearing.

Summary of the Opinion

The Third Circuit held that the IJ abused discretion and violated the petitioner’s right to counsel by denying a final continuance and proceeding to a merits hearing without:

  • Giving clear notice that the January 12, 2024 setting would proceed as a merits hearing (the notice referenced a master calendar only), and
  • Obtaining an express waiver of counsel.

The panel emphasized that a noncitizen is entitled to a “reasonable and realistic” opportunity to retain counsel. Against the backdrop of detention in a remote facility, indigence, language barriers, and the holiday period, a six-week span between the December 1 and January 12 hearings was not sufficient on this record. Because the right to counsel in removal proceedings is protected by statute and regulation, violations require automatic remand without a showing of prejudice. The court therefore granted the petition, vacated the BIA’s order, and remanded with instructions for a new hearing before the IJ. The panel did not reach the separate claim that the IJ failed to advise the petitioner of apparent eligibility for relief (asylum, withholding, CAT, voluntary departure) given the dispositive right-to-counsel ruling.

Factual and Procedural Background

  • April 2023: Robles entered the United States without authorization and was paroled in; DHS charged him as inadmissible for lack of valid entry documents.
  • September 2023: Arrested in New Jersey on aggravated assault and weapons charges; detained by immigration authorities in rural Pennsylvania.
  • November 2023: DHS provided notice of a December 1, 2023 master calendar hearing; written notice, in English, advised of the right to counsel and listed low-cost providers.
  • December 1, 2023: IJ granted a two-week continuance to allow Robles to obtain counsel.
  • December 15, 2023: Robles again appeared pro se; requested more time at the suggestion of a contacted attorney; IJ continued “one more time” to January 12, 2024.
  • January 12, 2024: Robles appeared pro se; reported last-minute contact with an attorney who suggested seeking another continuance; the IJ denied further continuance, treated counsel as waived, proceeded to the merits, and ordered removal.
  • Appeal: With newly retained counsel, Robles appealed to the BIA; BIA dismissed and declined to remand.

Standards and Jurisdiction

  • Jurisdiction: 8 U.S.C. § 1252(a)(1).
  • Scope of review: When the BIA affirms and echoes the IJ’s reasoning, the court reviews both decisions (Myrie v. Attorney General).
  • Standards of review: Legal questions de novo; factual findings for substantial evidence (Saban-Cach). Due process claims are reviewed de novo (Serrano-Alberto). Denials of continuances are reviewed for abuse of discretion—reversal only if “arbitrary, irrational or contrary to law,” based on the case-specific facts (Hashmi).

Analysis

Precedents Cited and Their Role

  • Freza v. Attorney General, 49 F.4th 293 (3d Cir. 2022):
    • Articulates that the Due Process Clause guarantees a right to effective assistance of counsel in removal proceedings and that denial of a continuance can violate that right.
    • When the right-to-counsel claim arises from the denial of a continuance, the two are treated as one claim; inquiry is fact-intensive.
  • Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010); Aquino v. Attorney General, 53 F.4th 761 (3d Cir. 2022):
    • Violations of regulations safeguarding the right to counsel “protect a fundamental statutory or constitutional right,” warranting automatic remand without a showing of prejudice.
  • Matter of C-B-, 25 I. & N. Dec. 888 (BIA 2012):
    • Absent an express waiver, the IJ must provide a “reasonable and realistic” time to obtain counsel; failure to do so infringes the statutory/regulatory “privilege of legal representation.”
  • Chlomos v. INS, 516 F.2d 310 (3d Cir. 1975):
    • Vacated removal where two continuances were, “as a practical matter,” insufficient to obtain counsel and there was no evidence of dilatory tactics.
  • Hernandez Lara v. Barr, 962 F.3d 45 (1st Cir. 2020):
    • Held that providing a non-English-speaking detained noncitizen only fourteen business days to find counsel violated the right to counsel; observed that even five weeks would not necessarily justify denying a final continuance.
  • Usubakunov v. Garland, 16 F.4th 1299 (9th Cir. 2021):
    • Accords with Hernandez Lara; supports that short timelines for detained individuals to secure counsel can violate the right to counsel.
  • Due process applicability and overarching principles:
    • Zadvydas v. Davis, 533 U.S. 678 (2001) and Reno v. Flores, 507 U.S. 292 (1993): Recognize due process protections for noncitizens in removal proceedings.
    • Post-Thuraissigiam, the panel cites Trump v. J. G. G., 604 U.S. 670 (2025), and A.A.R.P. v. Trump, 605 U.S. 91 (2025), as reaffirming that “the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings.

Legal Reasoning of the Majority

The panel framed the right-to-counsel question through two complementary lenses: the Fifth Amendment’s guarantee of a fair hearing and the statutory/regulatory framework codifying the right to representation at no expense to the government (8 U.S.C. §§ 1229a(b)(4)(A), 1362; 8 C.F.R. §§ 292.5(b), 1240.10(a)(1)). The court reiterated that when a right-to-counsel claim is premised on the denial of a continuance, the analysis focuses on whether, under all the circumstances, the IJ afforded a reasonable and realistic opportunity to secure counsel.

Applying that standard, the court credited several context-specific factors:

  • Detention in a rural facility, non-English proficiency, and indigence—each of which complicates efforts to retain counsel.
  • Evidence of ongoing, good-faith attempts to secure representation, with no indicia of dilatory tactics.
  • The compressed schedule from December 1 to January 12 encompassed the winter holidays, further constraining outreach.
  • No express waiver of the right to counsel.
  • No notice that the IJ would convert the January 12 “master calendar” setting into a merits hearing.

Given these facts, the court found that the IJ’s denial of an additional short continuance prevented the petitioner from reasonably presenting his case with the assistance of counsel. Because the denial breached both constitutional and regulatory protections for counsel, it was an abuse of discretion. In line with Leslie and Aquino, the panel held that such violations require automatic remand, without any showing of prejudice.

The Dissent’s Framework and Points of Departure

Judge Matey dissented on foundational and application grounds:

  • Threshold due process scope: Relying on historical “entry” doctrine and cases such as DHS v. Thuraissigiam, Shaughnessy (Mezei), Nishimura Ekiu, Knauff, and Verdugo-Urquidez, the dissent argued that a paroled noncitizen is treated as if “stopped at the border,” lacks sufficient ties to invoke the Fifth Amendment, and thus cannot premise relief on due process.
  • Statutory versus constitutional protection: Even if due process applied, the dissent framed the right to representation as a statutory “privilege” (not a Sixth Amendment right), cautioning against importing criminal “structural error” logic into civil removal proceedings and favoring a prejudice requirement.
  • Application to the record: The dissent concluded that the petitioner had ample time overall—including multiple notices and two continuances—and that denying a third continuance was within the IJ’s discretion to avoid “infinite” adjournments.
  • Eligibility advisals: The dissent maintained that the petitioner did not demonstrate apparent eligibility for asylum or voluntary departure, and therefore the IJ’s advisal obligations were not triggered; in any event, there is no constitutional right to advisals regarding discretionary relief (citing Bonhometre).

The majority, by contrast, emphasized the government’s concession of due process applicability, reaffirmed longstanding Supreme Court formulations recognizing due process rights in removal, and focused its holding on the discrete continuance/counsel issue.

Impact and Practical Implications

For Immigration Judges and the BIA

  • Notice matters: If a hearing notice specifies a master calendar setting, converting it into a merits hearing without explicit notice risks violating due process and the right to counsel.
  • Express waiver required: Absent an explicit, knowing, and intelligent waiver, IJs must ensure that respondents have a “reasonable and realistic” opportunity to retain counsel before proceeding to the merits.
  • Context-sensitive timelines: Detention, language barriers, indigence, and calendaring across holiday periods are material factors. A short, calendar-based allotment of time may be unreasonable in these contexts.
  • Automatic remand: Within the Third Circuit, violations of regulations protecting the right to counsel necessitate remand without requiring prejudice, shaping BIA review and IJ practice.

For Practitioners

  • Create a record: Document outreach attempts to legal service providers and private counsel, language barriers, detention conditions, and any impediments such as holidays or facility limitations.
  • Object clearly: If a merits hearing is announced unexpectedly at a master setting, object on the record and request a continuance, citing lack of notice and absence of waiver.
  • Invoke the right framework: Cite Matter of C-B- and Third Circuit cases (Leslie, Aquino, Freza, Chlomos) to argue that denial of a continuance in these circumstances violates the right to counsel.

Substantive Law Trajectory

  • Continuance jurisprudence: This opinion fortifies a respondent-centered, fact-intensive approach to what constitutes a “reasonable and realistic” time to obtain counsel, especially for detained and non-English-speaking respondents.
  • Due process scope: The dissent highlights an active debate over the Fifth Amendment’s reach to paroled entrants. While the majority proceeds on the accepted premise (and government concession) that due process applies in removal proceedings, the dissent’s analysis signals potential future challenges and requests for en banc or Supreme Court clarification.
  • Harmless error vs. automatic remand: The Third Circuit continues to treat violations of right-to-counsel regulations as requiring automatic remand, diverging from general harmless-error norms in civil cases and underscoring the centrality of counsel to the basic fairness of removal proceedings.

Complex Concepts Simplified

  • Right to counsel in removal: In immigration court, there is no Sixth Amendment right to government-appointed counsel. Instead, federal statutes and regulations guarantee a right to retain counsel “at no expense to the Government.” Because that right is fundamental to a fair hearing, courts treat its infringement as structurally compromising the proceeding.
  • Master calendar vs. merits hearing: A master calendar hearing is a preliminary scheduling and advisal session. A merits hearing is the evidentiary hearing where relief is adjudicated. Unexpectedly converting a master hearing into a merits hearing can trigger due process concerns, especially when a respondent is unrepresented.
  • Parole vs. admission (the “entry fiction”): Being paroled into the United States does not constitute “admission” for immigration purposes. Some decisions treat paroled entrants as if stopped at the border for certain constitutional analyses, but removal proceedings generally recognize due process protections. The majority here proceeds under that longstanding understanding; the dissent would restrict it.
  • Abuse of discretion: An IJ abuses discretion by acting arbitrarily, irrationally, or contrary to law. In this setting, denying a continuance can be an abuse where it deprives the respondent of a realistic opportunity to secure counsel and thereby reasonably present the case.
  • Prejudice requirement: Usually, appellate courts require a showing that an error affected the outcome. In the Third Circuit, however, when the error violates regulations protecting the right to counsel, a new hearing is ordered without a separate prejudice showing.

Conclusion

The Third Circuit’s decision underscores a central tenet of removal adjudication: the right to counsel is integral to a fair proceeding, and respondents must be given a reasonable and realistic opportunity to obtain representation before the government proceeds to the merits. Where—especially in detention settings and across holiday calendars—an IJ denies an additional continuance without explicit notice that a merits hearing will go forward and without an express waiver of counsel, the denial can constitute both a constitutional and regulatory violation. Within the Third Circuit, such violations require automatic remand.

Although designated non-precedential, the opinion provides important guidance on IJ scheduling practices and reiterates that the BIA must account for real-world barriers to retaining counsel. The dissent’s forceful engagement with the scope of due process for paroled entrants highlights a live doctrinal debate, but the controlling disposition affirms the robust protection of counsel in removal proceedings and the necessity of meaningful opportunity to secure representation.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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