CA3 on Access to Counsel: Freza v. Atty. Gen.

Freza v. Atty. Gen.

"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. ... 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."

[Hats off to Rebecca Hufstader and Peter Crossley!  NOTE: Freza's motion for stay of removal was denied, and I cannot find him in the ICE Detainee Locator.....]