Konstantin Ignatov v. John Ashcroft, Attorney General of the United States of America

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Case No: 02-2995
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KONSTANTIN IGNATOV,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an Order of the
Board of Immigration Appeals
(INS No. A73-037-552)
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Argued: April 1, 2003
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Before: McKEE, SMITH, and COWEN, Circuit Judges
(Opinion Filed: August 6, 2003)
Erica S. Gonzalez [Argued]
Jon Landau
Baumann, DeSeve & Landau
437 Chestnut Street
The Lafayette Building

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Philadelphia, PA 19106
Counsel for Appellant
Joan E. Smiley [Argued]
Richard M. Evans
Terri J. Scadron
John M. McAdams, Jr.
United States Department of
Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
Counsel for Appellee
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OPINION
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SMITH, Circuit Judge
I. INTRODUCTION
Petitioner Konstantin Ignatov appeals the denial of his application for asylum or
withholding of removal under the Immigration and Nationality Act (“INA”). Ignatov
alleges that the Immigration Judge’s decision to grant his attorney’s motion to withdraw
on the day of his asylum hearing and without granting him a continuance to obtain new
counsel violated his statutory right to counsel and his Fifth Amendment right to due
process. Because we will agree that petitioner’s statutory right to counsel was violated,
we reverse and remand for further proceedings consistent with this opinion.

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1 Ignatov subsequently received two more written notices advising him of his right
to obtain counsel, on forms dated October 31, 1996 and December 5, 1996.
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II. FACTS AND PROCEDURAL HISTORY
Konstantin Ignatov immigrated from Russia to the United States in 1992 on a B-1
visa. In the fall of 1993, Ignatov submitted an application for asylum or withholding of
removal to the Immigration and Naturalization Service (“INS”), in which he stated that he
was being persecuted because he refused to join the militia.
On April 1, 1996 he received his first written notice advising him of his right to
obtain counsel to represent him at the deportation proceedings. He then appeared before
the Immigration Judge (“IJ”) on October 3, 1996 and was granted a continuance until
October 31, 1996 to obtain counsel. On October 29, attorney Jewls Rogowska entered an
appearance on behalf of Ignatov and requested a continuance to prepare his case.1
On December 5, 1996, Ignatov appeared with counsel at the master calendar
hearing, at which time he admitted deportability and requested asylum or withholding of
removal. Counsel informed the court that she would be submitting a new asylum
application explaining that petitioner was subject to religious persecution, and that
Ignatov’s refusal to join the militia was based on his religious beliefs. Although she was
given until January 6, 1997 to file the application, she never did so.
At the master calender hearing, the IJ scheduled Ignatov’s asylum hearing for
October 17, 1997. On October 14, 1997 Ignatov’s counsel submitted a motion to

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withdraw. Counsel’s motion explained that Ignatov had never entered into a contract for
representation after the master calendar hearing, had not contacted her to prepare his case
since the last hearing, and had informed her on October 11, 1997 that he would not pay
additional counsel fees and that he would be seeking representation through a volunteer
organization. Counsel also stated in the motion that “[r]espondant has been well
informed of the potential consequences if he does not prepare his case in a timely manner
or obtain adequate representation.” [A.R. 164].
Although her withdrawal motion had not yet been granted, counsel failed to appear
at the asylum hearing on October 17. The IJ, nonetheless, granted counsel’s motion.
Prior to ruling on the motion, the IJ had the following exchange with Ignatov:
Q [IJ]:Why did you wait until a week before your hearing to contact
your attorney and tell her that you’re not going to pay her for her fees?
A: Well, the only reasons is because my family, they refused to help
me and sending me any papers and right now, like last week, I talked to
them and they agreed to help me.
Q: Well, sir, your case has been on my docket –
A: For a year
Q: Since – a year ago . . . I continued the case for 10 months - 10 ½
months until today for you to present your case and now you’re coming in
and saying that you – you’re not prepared. That doesn’t wash with the court
sir, I can’t . . . accept that. You’ve . . . started your deportation proceedings
over a year ago, you come in, fire your lawyer a week before the hearing
and expect me to continue the case and I’m not going to continue it, sir.
Today you’re going to speak for yourself.
[A.R. 60-61].
The IJ proceeded with the hearing, at which Ignatov testified that he suffered past
religious persecution and that he would be subject to future persecution based on his

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membership in the Baptist church. Ignatov testified, inter alia, that he had met with other
Baptists in a park for a prayer vigil and that they were physically attacked by a group
called Pamiat. While this took place, police simply watched and did nothing. Ignatov
was injured so severely that he was required to undergo hospital treatment. When he
attempted to report the incident to the police, however, they refused to investigate. He
subsequently received two phone calls from Pamiat which left him in such fear that he
left his parent’s home and sought refuge with a friend. Ignatov also explained that he did
not read his initial asylum application, but merely signed it, and that the core of his claim
was still religious persecution because his refusal to join the militia had been based on his
religious beliefs. The IJ concluded that Ignatov was not credible and did not establish
either past persecution or a well-founded fear of future persecution. Accordingly, the IJ
denied Ignatov’s requests for asylum and withholding of removal.
On June 21, 2002, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s
decision, without opinion, pursuant to 8 C.F.R. § 3.1(a)(7).
III. JURISDICTION
Because Ignatov first applied for asylum prior to September 30, 1996, the IJ had
subject matter jurisdiction under former sections, 8 U.S.C. §§1158, 1253(h) (1995). See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009 (1996) (“IIRIRA”), Section 309(c)(1)(B) (in the case of “an alien
who is in exclusion or deportation proceedings as of the effective date of the statute . . .

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the proceedings (including judicial review thereof) shall continue to be conducted without
regard to such amendments”). The Board of Immigration Appeals had appellate
jurisdiction pursuant to 8 C.F.R. § 3.1(b)(2) (1995). This court has jurisdiction to review
the order of the Board of Immigration Appeals pursuant to former Section 106(a) of the
INA, 8 U.S.C. § 1105a(a). See Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997) (noting
that cases where the initial deportation order was issued before September 30, 1996 are
governed by former section 106(a) despite its repeal).
IV. STANDARD OF REVIEW
Where the BIA summarily affirms the IJ’s decision, we “must then review the
decision of the IJ.” Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We review a
judge’s decision to grant a motion to withdraw or to deny a continuance for appointment
of new counsel for abuse of discretion. See Ungar v. Sarafite, 376 U.S. 575, 589-90
(1964) (“the matter of continuance is traditionally within the discretion of the trial
judge”); United States v. Gibbs, 190 F.3d 188, 207 n. 10 (3d Cir. 1999) (reviewing denial
of motion for continuance to obtain new counsel for abuse of discretion); Ohntrup v.
Firearms Center Inc., 802 F.2d 676, 679 (3d Cir. 1986) (reviewing denial of motion of
counsel to withdraw for abuse of discretion). A “court abuses its discretion if its decision
rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper
application of law to fact.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)
(holding that district court abused its discretion in denying appointed counsel to indigent

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civil litigant) (internal quotations omitted).
V. LEGAL ANALYSIS
A petitioner in a removal proceeding has the statutory right to be represented by
counsel at his or her own expense. See 8 U.S.C. § 1362 (1995) (“In any removal
proceedings before an immigration judge and in any appeal proceedings before the
Attorney General from any such removal proceedings, 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”); 8 U.S.C. § 1252(b)(2)
(1995) (same). The INS regulations also require that the alien be notified of his right to
representation at no expense to the government, and be provided with a list of free legal
service programs. 8 C.F.R. §§ 242.1(c), 242.10, 242.16(a) (1995).
The complexity of deportation proceedings make legal representation “especially
important.” Ardestani v. INS, 502 U.S. 129, 138 (1991). Moreover, “a myopic insistence
upon expeditiousness in the face of a justifiable request for delay can render the right to
defend with counsel an empty formality.” Ungar, 376 U.S. at 589. Merely informing a
petitioner of his statutory right to counsel is insufficient absent adequate time to obtain
such counsel. See, e.g., Castaneda-Delgao v. INS, 525 F.2d 1295, 1300 (7th Cir. 1975)
(two day continuance for petitioners to obtain counsel was insufficient and denying
request for additional continuance and proceeding without counsel was an abuse of
discretion.)

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2 The government argues that petitioner was given repeated continuances to obtain
counsel. In fact, only one continuance (for one month) was granted in October 1996 to
allow the appellant to obtain counsel. Because it occurred early in the proceeding, that
continuance is not relevant to petitioner’s ability to obtain counsel in October 1997 after
his initial counsel withdrew.
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Here, counsel did not file a motion to withdraw until a few days before the
hearing, and petitioner was not afforded any time following the granting of that motion to
obtain new counsel.2 We recently reviewed a similar allegation of deprivation of right to
counsel in Ponce-Leiva v. Ashcroft, 331 F.3d.369 (3d Cir. 2003). There, the petitioner
appeared with counsel at the scheduling hearing, stated his intent to seek asylum, and was
assigned a date eight months away for a merits hearing. In his application, Ponce-Leiva
stated that he was seeking asylum because he could not find work in his country and if he
returned home he would be homeless because his family could not support him. This was
not a valid basis for asylum under 8 U.S.C. §§ 1158(b) or 1101(a)(42)(A), as these
provisions require that the petitioner must be “unable or unwilling to avail himself or
herself of the protection of that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Ponce-Leiva never suggested
that he had any other basis for seeking asylum.
Two days before the merits hearing, Ponce-Leiva’s counsel sent a letter to the
immigration court requesting a continuance and informing the court that counsel would
be unavailable on the date of the hearing. The IJ denied counsel’s request, and the merits

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hearing went forward as scheduled. Ponce-Leiva’s counsel did not appear at the hearing.
The IJ denied Ponce-Leiva’s request for asylum, and elaborated on his reasons for
denying the continuance request, explaining that counsel did not appear to be providing
any benefit to Ponce-Leiva, such as advising him that inability to find work was not a
valid basis to stay in the country. The BIA affirmed and petitioner appealed, arguing,
inter alia, that the absence of counsel violated his statutory right to counsel and his due
process rights.
We affirmed the decision of the BIA, holding that the IJ did not abuse his
discretion in deciding that Ponce-Leiva’s right to counsel was not violated, in part
because the IJ “made a reasonable determination that in light of counsel’s previous
deficient performance with respect to Ponce-Leiva, his absence at the hearing would have
made no difference.” Id. at 375. We noted that:
“The question whether denial of a continuance in an immigration
proceeding constitutes an abuse of discretion cannot be decided through the
application of bright line rules; it must be resolved on a case by case basis
according to the facts and circumstances of each case.” Baires v. INS, 856
F.2d 89, 91 (9th Cir. 1988) (citation omitted). In this case, one of the
circumstances which the immigration judge apparently factored into his
decision to deny the continuance was the facial lack of merit in Ponce-
Leiva’s application for asylum. This initial impression was borne out by the
evidence presented at the hearing. It was clear at the outset, however, that
Ponce-Leiva’s claim for asylum was based solely on economic reasons and
therefore would not merit relief. By making this observation, we do not
intend to imply that a continuance must be granted if a claim is facially
meritorious. We do believe it is reasonable and proper for an immigration
judge to consider the apparent lack of merit in a claim when deciding to
proceed without counsel.

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3 Although petitioner’s initial application for asylum only discussed his refusal to
serve in the militia, counsel indicated on the record that she intended to file an updated
petition for asylum explaining that petitioner’s inability to serve in the militia was a result
of his religious beliefs. Moreover, Ignatov testified about his religious persecution at the
hearing.
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Id. at 377.
Here, unlike Ponce-Leiva, Ignatov introduced a facially valid basis for asylum:
persecution on the grounds of his religious beliefs.3 Therefore, counsel’s presence at the
hearing could have made a difference to the outcome. Ignatov argues that the outcome of
the hearing would have been different with counsel present because an attorney would
have been more articulate and able to explain why his asylum application mentioning
refusal to join the militia was consistent with his claim of religious persecution. Ignatov
did not testify about his refusal to join the military until it was raised in cross-
examination, and the IJ specifically mentioned this failure as a basis for his adverse
credibility finding. In addition, counsel could have elicited clarification and additional
testimony which might have prevented the IJ from disbelieving specific portions of
Ignatov’s testimony. For example, the IJ stated that he did not believe that Ignatov would
flee after receiving the two phone calls from Pamiat, especially since Ignatov did not
specifically mention any threats contained in those phone calls. Ignatov argues that he
did not describe the threats in those calls because he was not asked to elaborate by the IJ,
but that such details would have been elicited had counsel been presenting his case.
Because Ignatov’s asylum claim had facial merit and because the assistance of

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4 The IJ’s decision rested on an errant conclusion of law: that petitioner’s statutory
right to obtain counsel had been satisfied.
5 Because we hold that the IJ abused his discretion in granting counsel’s motion to
withdraw on the day of the hearing, we need not address whether the IJ’s actions also
violated petitioner’s due process right to a fundamentally fair hearing.
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counsel might have changed the outcome of the proceeding, the IJ violated Ignatov’s
statutory right to obtain counsel at his own expense by granting the motion to withdraw
on the day of the hearing. The timing of the ruling did not provide Ignatov with any time
to secure new counsel. By ruling in this manner, the IJ abused his discretion.4 Cf. United
States v. Kikumura, 947 F.2d 72, 79 (3d Cir. 1991) (holding that district court did not
abuse its discretion in denying continuance to obtain counsel of choice where defendant
had a month after counsel’s motion to withdraw was granted to obtain new counsel).
Remand is warranted.5
VI. CONCLUSION
For the foregoing reasons, the BIA’s order adopting the IJ’s decision was an abuse
of discretion. This case will be remanded to the BIA, with leave to remand to the IJ for
further proceedings consistent with this opinion
______________________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ D. Brooks Smith
Circuit Judge

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