Walter Orozco-Lopez v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
W ALTER OROZCO-LOPEZ ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 20-70127
Agency No.
A097-738-794
HOMERO G ONZALEZ M ARTINEZ ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 20-71308
Agency No.
A072-099-648
OPINION
On Petitions for Review of Orders of
Immigration Judges
Argued and Submitted April 15, 2021*
Seattle, Washington
* Orozco-Lopez was argued. The panel unanimously concludes that
Gonzalez Martinez is suitable for decision without oral argument. See
Fed. R. App. P. 34(a)(2).

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2 OROZCO-LOPEZ V. GARLAND
Filed August 25, 2021
Before: Susan P. Graber and Consuelo M. Callahan,
Circuit Judges, and James V. Selna, Senior District Judge.**
Opinion by Judge Callahan;
Concurrence by Judge Callahan
SUMMARY***
Immigration
Granting Walter Orozco-Lopez’s petition for review,
and remanding, and denying Homero Gonzalez Martinez’s
petition for review, of decisions of immigration judges
affirming asylum officers’ reasonable fear determinations in
reinstatement proceedings, the panel held that noncitizens at
reasonable fear hearings before an immigration judge are
statutorily entitled to counsel, but that this entitlement is
cabined by 8 C.F.R. § 208.31(g)’s temporal limitations on IJ
review hearings.
The panel observed that in Zuniga v. Barr, 946 F.3d 464
(9th Cir. 2019) (per curiam), this court addressed the
question of whether non-citizens subject to expedited
removal under 8 U.S.C. § 1228 have a statutory right to
counsel in reasonable fear proceedings before immigration
** James V. Selna, United States Senior District Judge for the Central
District of California, sitting by designation.
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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OROZCO-LOPEZ V. GARLAND 3
judges. In Zuniga, the court held that there is indeed such a
right because § 1228 provides that non-citizens in such
expedited removal proceedings have the right to counsel at
no expense to the government, and reasonable fear
proceedings are in turn part of those expedited removal
proceedings.
The panel wrote that here the question is whether there
is a statutory right to counsel at a reasonable fear hearing
before an IJ for non-citizens with reinstated removal orders.
The government argued that because neither the statute
regarding reinstatement orders, 8 U.S.C. § 1231(a)(5), nor
the regulations governing reinstatement proceedings,
8 C.F.R. § 1241.8, explicitly provide a right to counsel, there
is no such right. The panel wrote that this approach was not
persuasive. The panel explained that in Zuniga, this court
considered the broader legislative context—outside of the
specific provisions dealing with expedited removal
proceedings for criminal non-citizens—and concluded that
there is a right to counsel in reasonable fear proceedings, in
particular because 8 U.S.C. § 1362 provides that non-
citizens shall have the privilege of being represented (at no
expense to the Government), by counsel of their choosing,
in any removal proceedings before an IJ and in any appeal
proceedings before the Attorney General from any such
removal proceedings. The panel wrote that the question thus
becomes whether reasonable fear hearings before an IJ fall
under the category of “any removal proceedings.”
Considering the plain language of the statute, and in the
absence of a textual basis for restricting the right to counsel
under § 1362 to only those proceedings determining
removability under 8 U.S.C. § 1229a, the panel concluded
that “any removal proceedings” includes those concerning
eligibility for relief from removal. Thus, the panel held that

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4 OROZCO-LOPEZ V. GARLAND
non-citizens whose removal orders have been reinstated are
statutorily entitled to counsel under § 1362, at no expense to
the government, at their reasonable fear hearings before an
IJ.
The panel next considered how this eligibility for
counsel is cabined by 8 C.F.R. § 208.31(g)(1)’s requirement
that, in the absence of exceptional circumstances, the
reasonable fear review hearing “shall be conducted by the
immigration judge within 10 days of the filing of the Notice
of Referral to Immigration Judge with the immigration
court.” The panel wrote that in the absence of exceptional
circumstances, denying a continuance despite the non-
citizen’s inability to retain counsel within ten days is not a
denial of this entitlement where, at the time the asylum
officer notified the non-citizen of the negative fear
determination and the non-citizen requested IJ review, the
asylum officer informed the non-citizen of the opportunity
to have counsel, such as by providing the non-citizen with a
list of legal service providers. The panel held that the
statutory entitlement to counsel does not mean that a non-
citizen must have counsel before an IJ can proceed, but only
that a non-citizen must at least be informed of the entitlement
to counsel and have an opportunity to seek counsel within
§ 208.31(g)(1)’s constraints.
Applying these holdings to the petitions at hand, the
panel determined that Orozco-Lopez’s statutory right to
counsel was denied, but that Gonzalez’s was not. Noting
that a non-citizen may waive the right to counsel, but such
waiver must be knowing and voluntary, the panel wrote that
the IJ at Orozco-Lopez’s hearing did not mention the
possibility of legal representation, so Orozco-Lopez could
not possibly have waived it. Relying on Montes-Lopez v.
Holder, 694 F.3d 1085 (9th Cir. 2012), the panel also wrote

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OROZCO-LOPEZ V. GARLAND 5
that Orozco-Lopez need not show prejudice. The panel
concluded that in Gonzalez’s case, the IJ’s denial of his
request for a continuance to find a lawyer did not amount to
a denial of his statutory right to counsel, where the asylum
officer gave Gonzalez a list of free legal service providers
after he requested review by an IJ, and at the review hearing
eight days later, Gonzalez had not retained counsel or
suggested when, if ever, he might do so.
The panel rejected Gonzalez’s additional due process
arguments concerning his hearing difficulties at the IJ
hearing, and the IJ’s failure to call a witness by telephone.
The panel also held that substantial evidence supported the
IJ’s decision to affirm the asylum officer’s negative
reasonable fear determination as to Gonzalez’s torture claim.
Concurring, Judge Callahan acknowledged Montes-
Lopez’s holding that the denial of an alien’s statutory right
to counsel is per se reversible error, but for the reasons stated
in the dissent in Hernandez v. Holder, 545 F. App’x 710 (9th
Cir. 2013), she believes that the case was wrongly decided,
and should be revisited en banc.
COUNSEL
Chanakya A. Sethi (argued), Wilkinson Stekloff LLP, New
York, New York; Alison V. Zoschak, Wilkinson Stekloff
LLP, Washington, D.C.; for Petitioner Walter Orozco-
Lopez.
Sabrina Damast, Law Office of Sabrina Damast, Los
Angeles, California, for Petitioner Homero Gonzalez
Martinez.

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6 OROZCO-LOPEZ V. GARLAND
Jesi J. Carlson (argued) and Patrick J. Glen, Senior Litigation
Counsel; Ilana J. Snyder (argued), Trial Attorney; Anthony
P. Nicastro and John W. Blakeley, Assistant Directors; Brian
M. Boynton, Acting Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
Nadia Dahab, Sugerman Law Office, Portland, Oregon;
Stephen Manning, Jordan Cunnings, and Tess Hellgren,
Innovation Law Lab, Portland, Oregon; for Amicus Curiae
Innovation Law Lab.
OPINION
CALLAHAN, Circuit Judge:
Walter Orozco-Lopez and Homero Gonzalez Martinez
(collectively, “Petitioners”), natives and citizens of
Guatemala and Mexico, respectively, reentered the United
States illegally. The Department of Homeland Security
(“DHS”) ordered them removed after reinstating earlier
removal orders entered against them. They expressed fear
of persecution and torture if removed to their home
countries, so asylum officers conducted screening interviews
to determine whether their fears were reasonable. The
asylum officers determined that they were not, and
immigration judges (“IJs”) affirmed those determinations.
Orozco-Lopez and Gonzalez now petition for review of the
IJs’ decisions on the ground that non-citizens whose removal
orders have been reinstated are entitled to counsel, at no
expense to the government, at their reasonable fear hearings
before an IJ. We have jurisdiction under 8 U.S.C. § 1252(a)
and hold that such noncitizens are statutorily entitled to
counsel, but that this entitlement is cabined by 8 C.F.R.

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OROZCO-LOPEZ V. GARLAND 7
§ 208.31(g)’s requirement that, in the absence of exceptional
circumstances, such hearings “shall be conducted by the
immigration judge within 10 days of the filing of the Notice
of Referral to Immigration Judge with the immigration
court.”1 As we will explain, Orozco-Lopez’s right to
counsel was denied, but Gonzalez’s was not. We also reject
Gonzalez’s additional contentions not related to the right-to-
counsel issue. Orozco-Lopez’s petition is granted and
remanded, while Gonzalez’s is denied.
I
“Congress has authorized reinstatement of prior removal
orders as [a] streamlined process through which certain non-
citizens may be removed from the country.” Alvarado-
Herrera v. Garland, 993 F.3d 1187, 1190 (9th Cir. 2021).
As we recently explained, through reinstatement, “Congress
sought to expedite the removal of those who reenter the
United States illegally after having been removed at least
once before.” Id. at 1194 (citation omitted).
“To reinstate a prior removal order, an immigration
officer must find that the individual in question: (1) is not a
citizen; (2) was removed or voluntarily departed while
subject to a prior removal order; and (3) reentered the United
States illegally.” Id. at 1190 (citations omitted). Orozco-
1 Because we find a statutory entitlement to counsel, we do not
address whether there is constitutional right to counsel. See Ashwander
v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (“The Court will not pass upon a constitutional question
although properly presented by the record, if there is also present some
other ground upon which the case may be disposed of. . . . Thus, if a
case can be decided on either of two grounds, one involving a
constitutional question, the other a question of statutory construction or
general law, the Court will decide only the latter.”).

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Lopez and Gonzalez do not contest that the DHS made these
findings against them.
Although § 1231(a)(5) states that a non-citizen whose
prior removal order has been reinstated “is not eligible and
may not apply for any relief under [the INA],” “[a] non-
citizen may be entitled to apply for withholding of removal
or protection under the Convention Against Torture
[(“CAT”)].” Alvarado-Herrera, 993 F.3d at 1190 (emphasis
added). In creating this exception, “Congress sought to
effectuate the United States’ obligations under CAT by
declaring it to be ‘the policy of the United States not to expel,
extradite, or otherwise effect the involuntary return of any
person to a country in which there are substantial grounds
for believing the person would be in danger of being
subjected to torture.’” Id. at 1194 (citation omitted).
“Congress directed the agency to issue regulations
implementing this policy, without excluding non-citizens in
reinstatement proceedings from those eligible to apply for
protection under CAT.” Id. (citation omitted).
For non-citizens whose removal orders have been
reinstated, those regulations provide that “a non-citizen must
first pass a screening interview conducted by an asylum
officer, during which the non-citizen must show that he or
she has a ‘reasonable fear’ of persecution or torture in the
designated country of removal.” Id. at 1190 (citation
omitted). “The alien may be represented by counsel or an
accredited representative at the interview, at no expense to
the Government.” 8 C.F.R. § 208.31(c).2 “If the asylum
2 There are two identical sets of regulations governing the
reasonable fear process, 8 C.F.R. §§ 208.31 and 1208.31, applicable to
the DHS and the Executive Office for Immigration Review, respectively.
“Because the text is the same in both sets of regulations, for the sake of

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OROZCO-LOPEZ V. GARLAND 9
officer determines that the non-citizen has established a
reasonable fear,” then the non-citizen may apply for
withholding of removal or protection under CAT. Alvarado-
Herrera, 993 F.3d at 1190 (citation omitted).
This regulatory scheme “allows immigration officials ‘to
quickly identify and resolve frivolous claims to protection,’
thereby recognizing Congress’s desire to ensure the swift
removal of non-citizens subject to reinstatement.” Id. at
1194 (citation omitted). “At the same time, a screening
process addresses the United States’ treaty obligations by
making it possible for those who do have a reasonable fear
of persecution or torture to receive a hearing before an
immigration judge at which they can establish their
entitlement to appropriate relief.” Id. at 1195. We have
previously stated that the regulation “balance[es] the fair
resolution of claims for relief from removal against
Congress’ desire to provide for streamlined removal of
certain classes of individuals, including those subject to
reinstated removal orders.” Perez-Guzman v. Lynch,
835 F.3d 1066, 1079 n.8 (9th Cir. 2016).
“If the asylum officer determines that the non-citizen has
not established a reasonable fear, the non-citizen may
request review of that determination by an immigration
judge.” Alvarado-Herrera, 993 F.3d at 1190 (citation
omitted) (emphasis in original). “In the absence of
exceptional circumstances, such review shall be conducted
by the immigration judge within 10 days of the filing of the
Notice of Referral to Immigration Judge with the
immigration court.” 8 C.F.R. § 208.31(g). “During the
simplicity we will refer only to one set throughout the remainder of this
opinion.” Zuniga v. Barr, 946 F.3d 464, 467 n.4 (9th Cir. 2019) (per
curiam).

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review hearing, the immigration judge conducts a de novo
review of the record prepared by the asylum officer and may
(but need not) accept additional evidence and testimony
from the non-citizen.” Alvarado-Herrera, 993 F.3d at 1190–
91 (citation omitted). Thus, “[r]easonable fear review
hearings were not envisioned to be full evidentiary hearings
. . . .” Bartolome v. Sessions, 904 F.3d 803, 813 (9th Cir.
2018) (citations omitted). “Rather, they are abbreviated
proceedings to ensure that an alien does not have a
reasonable fear of returning to his or her country of origin.”
Id. (citations omitted). Moreover, “reasonable fear review
proceedings are intended to be expedited and efficient.” Id.
(citations omitted). Finally, “[i]f the immigration judge
affirms the asylum officer’s adverse determination, . . . the
non-citizen may file a petition for review in the appropriate
circuit court of appeals.” Alvarado-Herrera, 993 F.3d
at 1191 (citation omitted). “Collectively, these procedures
reduce the risk that meritorious claims will be erroneously
rejected at the screening stage.” Id. at 1195.
II
A
Orozco-Lopez is a native and citizen of Guatemala. He
first entered the United States in 2003, illegally. The DHS
promptly initiated removal proceedings. He did not appear
at his removal hearing, and an IJ issued a removal order in
absentia in April 2004. After being convicted of and jailed
for a traffic offense, Orozco-Lopez was finally removed in
May 2008. In 2013, he reentered illegally. After he was
detained on charges of “corporal injury on
spouse/cohabitant” and “criminal threats,” his prior order of
removal was reinstated, and he was again removed in June
2019. At that time he did not raise a fear of persecution or
torture if removed to Guatemala. In October 2019, he

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OROZCO-LOPEZ V. GARLAND 11
reentered illegally a third time. In December 2019, his prior
order of removal was once again reinstated, but this time he
raised a fear of persecution if removed.
Orozco-Lopez was referred to an asylum officer for a
reasonable fear determination. He chose to have the
interview without counsel. He told the asylum officer that,
in 2003 in Guatemala, masked men who “wanted money”
surrounded him, his mother, and his aunt and “tried to kill”
them, though they were ultimately unharmed. He also
testified that on another occasion, gang members asked him
for money. When the asylum officer asked whether he
feared harm based on statutorily protected grounds, he
answered in the negative. Asked about his fear of
government-enabled torture, Orozco-Lopez testified that the
government had never harmed him and that he did not fear
harm from officials if removed. He noted, however, that the
police were not very effective at combatting crime. The
asylum officer found Orozco-Lopez credible but determined
that he had not established a reasonable fear of persecution
because, among other reasons, (1) he was not actually
harmed during the 2003 incident with the masked men;
(2) there was no indication that they acted against him on
account of a protected ground; (3) after the incident, there
was no further contact with them; and (4) Orozco-Lopez’s
fear of future persecution was related to general
victimization by criminals or gangs—an unprotected
ground. The asylum officer also found that there was “not a
reasonable possibility that [Orozco-Lopez] would be
tortured, with official consent or acquiescence, in the
future,” because he “stated he was never harmed by public
officials in the past and does not fear them in the future. . . .
[And] he does not think they would intentionally allow
criminals to severely harm him in their presence.”

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12 OROZCO-LOPEZ V. GARLAND
Orozco-Lopez requested that an IJ review the asylum
officer’s negative determination. At the hearing before the
IJ, the IJ did not raise the possibility of legal representation
at all. Orozco-Lopez testified about the 2003 incident with
the masked men, a 2007 kidnapping of his sister and her
return, and a 2009 robbery. The IJ found him credible but
concluded that he had not shown past harm based on a
protected ground, a reasonable fear of future harm on
account of a protected ground, or fear of torture by the
government or with the government’s acquiescence.
Orozco-Lopez then petitioned for our review.
B
Gonzalez is a native and citizen of Mexico. He first
entered the United States in 1992, illegally, and was both
ordered removed and in fact removed in 1995. At some time
he reentered the country illegally and, in 1996, was
convicted of “disturbing by loud unreasonable noise.” In
2005, he was convicted of battery. In 2006, he was
convicted for “the felony offense of threaten[ing] crime with
intent to terrorize.” In 2013, he was convicted of driving
with a suspended license. Later that year, he was arrested by
the U.S. Border Patrol and granted voluntary return to
Mexico. Sometime thereafter he illegally reentered the
United States. In 2020, the DHS notified Gonzalez that,
because he had a prior order of removal, had been removed,
and had illegally reentered, his earlier removal order was
being reinstated. Gonzalez expressed fear of returning to
Mexico and was referred to an asylum officer for a
reasonable fear interview, which was held on April 3, 2020.
At the beginning of the interview the asylum officer
informed Gonzalez that he was permitted to have “a legal
representative or consultant” present and asked if he wanted
to proceed without one. Gonzalez responded that he “would

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OROZCO-LOPEZ V. GARLAND 13
like to have a representative” and that his wife had “been
talking to an attorney.” The asylum officer then asked
Gonzalez if he wanted to reschedule to have an attorney
present, but Gonzalez stated, “I don’t know what could be
the difference to be honest with you.” The asylum officer
replied, “I understand. But I want to know from you whether
you are comfortable proceeding with your interview without
a legal representative or consultant.” Gonzalez responded
“Yes, that’s fine.”
Gonzalez told the asylum officer that he was physically
harmed twice in Mexico in 2013. In the first incident, he
went to pick up money that his family had sent him and was
surrounded by several individuals who assaulted and robbed
him. In the second incident, Gonzalez took a bus to Mexicali
to look for help coming to the United States. Three people
offered to help but instead kidnapped Gonzalez and held him
for ransom. After a day and a night his wife paid a ransom
to secure his release. Gonzalez tried to report his
kidnapping, but the two officers to whom he spoke “were
laughing at the moment that [he] told them.” The asylum
officer found Gonzalez credible, but determined that he
could not establish persecution or torture because he had not
been targeted on account of any protected ground and was
harmed only by criminals.
On April 29, 2020, the asylum officer notified Gonzalez
of his determination that Gonzalez did not have a reasonable
fear of persecution or torture. That same day, Gonzalez
requested review by an IJ, the Notice of Referral to
Immigration Judge was issued, and a list of free legal service
providers was given to him.
A hearing was held on May 7, 2020. Gonzalez asked for
an extension of time to find someone to represent him. The
IJ responded that the asylum officer’s “findings [were] filed

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14 OROZCO-LOPEZ V. GARLAND
. . . with the Court . . . a week ago” and that “[t]he law
require[d] the Court to hear these cases within ten days.”
Gonzalez said that he had looked for an attorney but did not
have one. The IJ then stated that the hearing would proceed.
Initially, Gonzalez indicated some problems with
understanding the translation through the headset due to a
hearing problem. However, the IJ thought that this was
because Gonzalez was “trying to listen to [the IJ’s] English
and the Spanish at the same time and [the IJ and interpreter
are] talking at the same time which is why you’re not
supposed to be listening to both.” After the IJ offered this
suggestion, Gonzalez did not mention any hearing
difficulties.
Gonzalez told the IJ about the incidents that he had
related to the asylum officer. He also reported that people
who return to Mexico from the United States are at risk of
getting kidnapped. He stated that he had a cousin who, in
2012, was kidnapped a week after he returned to Mexico and
was never found. Gonzalez added that there are a lot of
“zetas” who “ask for money for kidnapping.”
He also testified that he had a brother-in-law who was
being charged 2000 pesos for his business and was
threatened with death if he said anything. Gonzalez asked
the IJ to call a cousin, but the IJ said she could not do so.
Gonzalez further stated that, in 2004, a friend of his had
packed all his things in his truck and trailer and tried to leave,
but the police killed him in front of his wife and children and
took the trailer.
At the end of the hearing, Gonzalez again asked for time
to get an attorney. The IJ responded, “[I]f you’re having
trouble finding an attorney because of the coronavirus issues

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OROZCO-LOPEZ V. GARLAND 15
there’s no way to predict when that is going to end. Under
the law the Court’s required to review these applications
within a certain number of days and we are at that limit
already.” Gonzalez did not respond. That same day, the IJ
issued her order concurring with the asylum officer’s
negative reasonable fear determination because the harms
that Gonzalez had experienced were attributable to crime,
not persecution, and he had not established a reasonable fear
of torture by a state actor. Gonzalez then filed his petition
for review.
III
“We review de novo due process challenges to
reasonable fear proceedings.” Zuniga v. Barr, 946 F.3d 464,
466 (9th Cir. 2019) (per curiam) (citation omitted). We also
review de novo questions of law, including those of statutory
construction. Romero-Mendoza v. Holder, 665 F.3d 1105,
1107 (9th Cir. 2011).
An “IJ’s decision not to continue a hearing is reviewed
for abuse of discretion,” Arrey v. Barr, 916 F.3d 1149, 1158
(9th Cir. 2019), but “whether [an] IJ’s denial of a
continuance violated [a petitioner’s] statutory right to
counsel . . . is a question of law which we review de novo,”
Montes-Lopez v. Holder, 694 F.3d 1085, 1088 (9th Cir.
2012).
“We review [an] IJ’s determination that [an] alien did not
establish a reasonable fear of persecution or torture for
substantial evidence,” which means that “we must uphold
the IJ’s conclusion . . . unless, based on the evidence, any
reasonable adjudicator would be compelled to conclude to
the contrary.” Bartolome, 904 F.3d at 811 (citations and
quotation marks omitted).

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IV
Petitioners argue that Zuniga holds that non-citizens
have a right to counsel at their reasonable fear review
hearings before an IJ. However, Zuniga’s holding is not so
broad. In Zuniga, the question was whether “non-citizens
subject to expedited removal under 8 U.S.C. § 1228 have a
statutory right to counsel in reasonable fear proceedings
before immigration judges.” Zuniga, 946 F.3d at 465
(emphasis added). The panel answered that there is indeed
such a right because § 1228, the statute governing the
“[e]xpedited removal of aliens convicted of committing
aggravated felonies,” provides that non-citizens in expedited
removal proceedings have the right to counsel at no expense
to the government, 8 U.S.C. § 1228(b)(4)(B), and
“[r]easonable fear proceedings are in turn part of those
expedited removal proceedings,” Zuniga, 946 F.3d at 468–
69. Thus, Zuniga’s holding was limited to non-citizens in
expedited removal proceedings.
Here, the question is whether there is a statutory right to
counsel at a reasonable fear hearing before an IJ for non-
citizens with reinstated removal orders. Neither the statute
regarding reinstatement orders, 8 U.S.C. § 1231(a)(5), nor
the regulations governing reinstatement proceedings,
8 C.F.R. § 1241.8, explicitly provide a right to counsel.
Section 1241.8(e) simply provides that if an alien in a
reinstatement proceeding expresses a fear of returning to the
country of removal, then the alien is entitled to go through
the reasonable fear screening process. On this basis, the
government argues that there is no statutory right to counsel
in reinstatement proceedings, see Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en banc), and,
accordingly, no right to counsel for non-citizens with
reinstated removal orders who are at reasonable fear

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OROZCO-LOPEZ V. GARLAND 17
hearings before IJs, citing Kucana v. Holder, 558 U.S. 233,
249 (2010) (“[W]here Congress includes particular language
in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” (alteration in original) (citation omitted)).
This approach is not persuasive. In Zuniga, we
explained that “[t]he broader legislative context—outside of
the specific provisions dealing with expedited removal
proceedings for criminal non-citizens—also supports the
conclusion that there is a right to counsel in reasonable fear
proceedings.” Zuniga, 946 F.3d at 469. “In particular,
8 U.S.C. § 1362 provides that ‘[i]n any removal proceedings
before an immigration judge and in any appeal proceedings
before the Attorney General from any such removal
proceedings,’ non-citizens ‘shall have the privilege of being
represented (at no expense to the Government)’ by counsel
of their choosing.” Id. (alteration in original) (emphases
added) (citation omitted). The question thus becomes
whether reasonable fear hearings before an IJ fall under the
category of “any removal proceedings.”
We are not asking whether reinstatement proceedings
are necessarily a species of removal. We answered that
question in the negative in Morales-Izquierdo. 486 F.3d
at 490 (“[T]he fact that Congress placed reinstatement in a
separate section from removal suggests that reinstatement is
a separate procedure, not a species of removal.”). We
explained that “[t]he scope of a reinstatement inquiry . . . can
be performed like any other ministerial enforcement action.
The only question is whether the alien has illegally reentered
after having left the country while subject to a removal
order.” Id. at 491.

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18 OROZCO-LOPEZ V. GARLAND
These petitions raise a subtly but significantly different
question: whether reasonable fear hearings before an IJ, at
which non-citizens with reinstated removal orders may be
ordered removed to countries where they allege they will be
persecuted, constitute “removal proceedings” as that term is
used in § 1362. Indeed, in Zuniga, we noted that Morales-
Izqueirdo’s holding that there is no “statutory right to
counsel at the initial stage of reinstatement proceedings,
during which an immigration officer performs the
‘ministerial’ task of determining whether the non-citizen’s
prior removal order should be reinstated . . . did not address
whether a statutory right to counsel attach[es] during [a]
subsequent reasonable fear review before an IJ.” Zuniga,
946 F.3d at 469 n.8 (emphases added).
Because the INA does not define “any removal
proceedings,” we resort to tools of statutory interpretation.
And “[a]s with any question of statutory interpretation, our
analysis begins with the plain language of the statute.”
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009); see also
Chacon v. Wilkinson, 988 F.3d 1131, 1134 (9th Cir. 2021)
(“When Congress does not define a term, we ‘interpret the
words consistent with their ordinary meaning at the time
Congress enacted the statute.’” (citation omitted)).
First, “[r]ead naturally, the word ‘any’ has an expansive
meaning, that is, ‘one or some indiscriminately of whatever
kind.’” United States v. Gonzales, 520 U.S. 1, 5 (1997)
(quoting Webster’s Third New International Dictionary 97
(1976)). Second, by saying “any removal proceedings,”
Congress signaled that there is more than one kind of
removal proceeding. Thus, Congress intended that non-
citizens have an entitlement to counsel at every possible
flavor of removal proceedings before an IJ.

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OROZCO-LOPEZ V. GARLAND 19
The government, however, asserts that “removal
proceedings” are only those proceedings that determine the
“removability” of a non-citizen. But there does not appear
to be any textual basis for such a narrow reading. Congress
indeed defined “removable,” § 1229a(e)(2), but that is not
the same as defining “removal,” see FCC v. AT&T Inc.,
562 U.S. 397, 403 (2011) (“[I]n ordinary usage, a noun and
its adjective form may have meanings as disparate as any
two unrelated words.”). We have previously held that “[t]o
order an individual removed, the immigration judge must
make two determinations: (1) whether the individual is
removable from the United States; and, if so, (2) whether the
individual is otherwise eligible for relief from removal.”
Morales-Izquierdo, 486 F.3d at 491 (citation omitted). A
non-citizen alleging persecution in his or her homeland is not
actually removed from the United States unless it is
determined that he or she is “removable” and is not entitled
to any relief from removal, such as withholding of removal
or relief under CAT.3 While determining removability in
reinstatement proceedings may be mechanical, adjudicating
“eligib[ility] for relief from removal . . . is often complex
and fact-intensive.” Id. Accordingly, as a reasonable fear
hearing before an IJ concerns “relief from removal,” we find
it to be a type of “removal proceeding[]” included in § 1362.
This conclusion is consistent with our prior reference to
“reasonable fear and withholding of removal proceedings”
as a “removal moratorium.” See Padilla-Ramirez v. Bible,
882 F.3d 826, 832 (9th Cir. 2018). Also, we have previously
relied on § 1362 in finding that a non-citizen’s eligibility for
counsel in withholding of removal proceedings was violated.
3 Certainly, being removed to a country in which the non-citizen
believes he or she will be tortured may be more devastating to the non-
citizen than simply being found removable from the United States.

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20 OROZCO-LOPEZ V. GARLAND
See Castro-O’Ryan v. U.S. Dep’t of Immigr. &
Naturalization, 847 F.2d 1307, 1311–12 (9th Cir. 1987). We
conclude that, in the absence of a textual basis for restricting
the right to counsel under § 1362 to only those proceedings
determining removability, “any removal proceedings”
includes those concerning eligibility for relief from
removal.4
Our conclusion is supported by applicable rules of
statutory interpretation. “We do not . . . construe statutory
phrases in isolation; we read statutes as a whole,” United
States v. Morton, 467 U.S. 822, 828 (1984), and “[w]here
Congress includes particular language in one section of a
statute but omits it in another . . . , it is generally presumed
that Congress acts intentionally and purposely in the
disparate inclusion or exclusion,” Keene Corp. v. United
States, 508 U.S. 200, 208 (1993) (second alteration in
original) (citation and quotation marks omitted). Here,
instead of saying “any removal proceedings,” Congress
could have referred specifically to proceedings under
§ 1229a that determine a person’s removability. Indeed, the
INA does so explicitly no less than three times. See
§ 1229(a)(1) (“In removal proceedings under section 1229a
of this title, written notice . . . shall be given”);
§ 1229(a)(2)(A) (“In removal proceedings under section
1229a of this title, in the case of any change or postponement
in the time and place of such proceedings, . . . a written
notice shall be given); 8 U.S.C. § 1182(d)(3)(B)(i) (“The
Secretary of State may not exercise the discretion provided
in this clause with respect to an alien at any time during
which the alien is the subject of pending removal
proceedings under section 1229a of this title”). Congress’s
4 Of course, Congress has the authority to expand or contract the
statutory entitlement to representation.

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OROZCO-LOPEZ V. GARLAND 21
use of “any removal proceedings” instead of “removal
proceedings under section 1229a of this title” in § 1362 must
mean something. Specifically, for the word “any” to do any
work as it must, and not be surplusage, § 1362 must include
a broader class of removal proceedings than those described
in § 1229a. See Corley v. United States, 556 U.S. 303, 314
(2009) (holding that a “statute should be construed so that
effect is given to all its provisions, so that no part will be
inoperative or superfluous” (citation omitted)). Also,
§ 1229a has its own right to counsel provision. 8 U.S.C.
§ 1229a(b)(4)(A). Thus, if the right under § 1362 covered
only removal proceedings under § 1229a, where
removability is at issue, § 1229a(b)(4)(A) would be mere
surplusage.
Finally, we note that, “[e]ven if there were some doubt
as to the correct construction of the statute, the doubt should
be resolved in favor of the alien.” See INS v. Errico,
385 U.S. 214, 225 (1966).
In sum, we hold that the words “any removal
proceedings” in § 1362 must cover removal proceedings not
included in § 1229a(b)(4)(A), and that a reasonable fear
hearing before an IJ is a type of “removal proceeding[]”
included in § 1362. Consequently, non-citizens whose
removal orders have been reinstated are statutorily entitled
to counsel under § 1362, at no expense to the government, at
their reasonable fear hearings before an IJ.
V
We next consider how this eligibility for counsel is
cabined by § 208.31(g)(1)’s requirement that, “[i]n the
absence of exceptional circumstances,” the reasonable fear
review hearing “shall be conducted by the immigration judge
within 10 days of the filing of the Notice of Referral to

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22 OROZCO-LOPEZ V. GARLAND
Immigration Judge with the immigration court.” 8 C.F.R.
§ 208.31(g)(1). This regulation comports with Congress’s
intent that those who were previously ordered removed and
illegally reentered should be removed again expeditiously.
See Alvarado-Herrera, 993 F.3d at 1194–95.
We recognize that
[t]o infuse the critical right to counsel
with meaning, we have held that IJs must
provide aliens with reasonable time to locate
counsel and permit counsel to prepare for the
hearing. Absent a showing of clear abuse, we
typically do not disturb an IJ’s discretionary
decision not to continue a hearing.
Nonetheless, we cannot allow a “myopic
insistence upon expeditiousness” to render
the right to counsel “an empty formality.”
No bright line guides our consideration of
what constitutes reasonable time. The
inquiry is fact-specific and thus varies from
case to case. We pay particular attention to
the realistic time necessary to obtain counsel;
the time frame of the requests for counsel; the
number of continuances; any barriers that
frustrated a petitioner’s efforts to obtain
counsel, such as being incarcerated or an
inability to speak English; and whether the
petitioner appears to be delaying in bad faith.
Biwot v. Gonzales, 403 F.3d 1094, 1098–99 (9th Cir. 2005)
(citations omitted). Biwot, however, discussed the right to
counsel in the context of ordinary removal proceedings
where there are no strict statutory or regulatory deadlines by
which the removal hearings must be heard. See id. at 1096–

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OROZCO-LOPEZ V. GARLAND 23
97. Here, in contrast, 8 C.F.R. § 208.31(g)(1) provides that,
“[i]n the absence of exceptional circumstances,” the
reasonable fear hearing before the IJ “shall be conducted by
the immigration judge within 10 days of the filing of the
Notice of Referral to Immigration Judge with the
immigration court.” Accordingly, the statutory entitlement
to counsel in this context exists within that time frame. In
other words, in the absence of exceptional circumstances,
denying a continuance despite the non-citizen’s inability to
retain counsel within ten days is not a denial of this
entitlement where, at the time the asylum officer notified the
non-citizen of the negative fear determination and the non-
citizen requested IJ review, the asylum officer informed the
non-citizen of the opportunity to have counsel, such as by
providing the non-citizen with a list of legal service
providers.
Nor would an IJ violate the statutory entitlement to
counsel by denying a non-citizen’s request for a continuance
beyond the ten-day mark just so the non-citizen’s counsel
can further prepare for the hearing. As we have noted,
review hearings before the IJ “are abbreviated proceedings
to ensure that an alien does not have a reasonable fear of
returning to his or her country of origin.” Bartolome,
904 F.3d at 813. The limited purpose is for the IJ to “review
. . . the record prepared by the asylum officer,” Alvarado-
Herrera, 993 F.3d at 1191, and to assess whether the asylum
officer erred in finding that the non-citizen’s fear was
unreasonable. “Reasonable fear review hearings were not
envisioned to be full evidentiary hearings.” Bartolome,
904 F.3d at 813. Only if the IJ deems the asylum officer’s
negative fear determination to be incorrect—in other words,
finds that the non-citizen’s fear may be reasonable—will the
non-citizen become eligible for full withholding
proceedings, which involve evidentiary hearings with the

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24 OROZCO-LOPEZ V. GARLAND
opportunity to put on witnesses and submit evidence. See id.
at 809. But the preliminary nature of the IJ’s decision in a
reasonable fear review hearing is reflected by the provision
that the IJ “may (but need not) accept additional evidence
and testimony from the non-citizen.” Alvarado-Herrera,
993 F.3d at 1190. Thus, counsel’s role is largely to help her
client testify convincingly about her fear so that the IJ will
find it reasonable. Hence, there is no requirement to find
witnesses to testify and documentary evidence to submit.
Moreover, if the IJ affirms the asylum officer’s negative fear
determination, a non-citizen can seek review by a circuit
court of appeals where she, of course, can be represented by
a lawyer. See Alvarado-Herrera, 993 F.3d at 1191.
We thus hold that this statutory entitlement to counsel
does not mean that a non-citizen must have counsel before
an IJ can proceed, but only that a non-citizen must at least be
informed of the entitlement to counsel and have an
opportunity to seek counsel within § 208.31(g)(1)’s
constraints.
VI
Applying our holdings to the petitions at hand, we
determine that Orozco-Lopez’s statutory right to counsel
was denied, but that Gonzalez’s was not. A non-citizen may
waive the right to counsel, but such waiver must be knowing
and voluntary. See Tawadrus v. Ashcroft, 364 F.3d 1099,
1103 (9th Cir. 2004). The IJ at Orozco-Lopez’s hearing did
not mention the possibility of legal representation, so
Orozco-Lopez could not possibly have waived it. Also, we
have held that where a non-citizen’s statutory right to
counsel has been denied, as in Orozco-Lopez’s case, he need
not show prejudice. See Montes-Lopez v. Holder, 694 F.3d
1085, 1093–94 (9th Cir. 2012) (holding that a non-citizen
“who shows that he has been denied the statutory right to be

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OROZCO-LOPEZ V. GARLAND 25
represented by counsel in an immigration proceeding need
not also show that he was prejudiced by the absence of the
attorney”).
In Gonzalez’s case, the IJ’s denial of his request for a
continuance to find a lawyer did not amount to a denial of
his statutory right to counsel. On April 29, 2020, the asylum
officer issued his negative fear determination to Gonzalez,
Gonzalez requested review by an IJ, the Notice of Referral
to Immigration Judge was issued, and a list of free legal
service providers was given to Gonzalez. The review
hearing was held eight days later, on May 7, 2020. When
Gonzalez asked for a continuance that day to keep searching
for counsel, the IJ reasonably denied it on the grounds that
the asylum officer’s “findings [were] filed . . . with the Court
. . . a week ago” and that “[t]he law required the Court to
hear these cases within ten days.” The asylum officer had
given Gonzalez a list of legal service providers. During the
eight days thereafter, Gonzalez had not retained counsel and,
at the hearing, did not suggest when, if ever, he might be able
to do so.5 Under these circumstances, the IJ reasonably
proceeded with the review hearing.6 See 8 C.F.R.
§ 208.31(g)(1).
5 Gonzalez did not respond to the IJ’s suggestion that the
coronavirus pandemic may have made it harder to find a lawyer. We
thus need not address when, if ever, the pandemic could constitute
“exceptional circumstances” that toll § 208.31(g)’s ten-day deadline.
6 We also reject Gonzalez’s assertion that he did not knowingly and
voluntarily waive his right to counsel before the asylum officer because
when the asylum officer stated, “I want to know from you whether you
are comfortable proceeding today with your interview without a legal
representative or consultant,” Gonzalez replied, “Yes, that’s fine.” On
this record, we find that his waiver was knowing and voluntary.

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26 OROZCO-LOPEZ V. GARLAND
Gonzalez also contends that the IJ violated due process
by (1) “refus[ing] to address Petitioner’s hearing
difficulties,” and (2) not calling his cousin after he offered to
provide the IJ with his cousin’s phone number. His first
point is not persuasive because, when Gonzalez raised the
hearing difficulties at the beginning of the proceeding, the IJ
suggested that he not listen to both the IJ and the interpreter
at the same time, and thereafter Gonzalez expressed no
trouble hearing or understanding the IJ. His second
argument also fails because the purpose of the hearing is to
conduct “a de novo review of the record prepared by the
asylum officer,” and the IJ “may (but need not) accept
additional evidence.” Alvarado-Herrera, 993 F.3d at 1190–
91 (emphasis added). Gonzalez offers no authority requiring
an IJ to call a witness by telephone. Thus, Gonzalez’s
additional due process claims also fail.
Finally, Gonzalez argues that the IJ misapplied the law
governing CAT claims by failing to appreciate that mere
acquiescence by the government in the past harm is
sufficient. He testified that when he sought police assistance
after his kidnapping, the police knew who his kidnappers
were but refused to help and laughed instead. However, it
seems that the harms he alleged did not rise to the level of
torture. He was robbed in one incident and kidnapped for
ransom in another. See 8 C.F.R. § 1208.18(a)(1) (“Torture
is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person.”); 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme
form of cruel and inhuman treatment and does not include
lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.”). Therefore,
under the substantial evidence standard, sufficient evidence
supported the IJ’s decision to affirm the asylum officer’s
negative reasonable fear determination as to Gonzalez’s

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OROZCO-LOPEZ V. GARLAND 27
torture claim. See Bartolome, 904 F.3d at 811 (explaining
that under this standard of review, “we must uphold the IJ’s
conclusion . . . unless, based on the evidence, any reasonable
adjudicator would be compelled to conclude to the contrary”
(citations and quotation marks omitted)).
VII
In conclusion, we hold that non-citizens whose removal
orders have been reinstated are statutorily entitled to
counsel, at no expense to the government, at their reasonable
fear hearings before an IJ. This statutory entitlement is
cabined by 8 C.F.R. § 208.31(g)(1)’s requirement that, “[i]n
the absence of exceptional circumstances,” such hearings
“shall be conducted by the immigration judge within 10 days
of the filing of the Notice of Referral to Immigration Judge
with the immigration court.” Because this right was denied
to Orozco-Lopez, we remand his case to the agency for
further proceedings consistent with this opinion. However,
Gonzalez’s statutory right to counsel was not violated
because he had the opportunity to retain counsel and failed
to do so, and his other challenges are without merit.
Orozco-Lopez’s petition, No. 20-70127, is GRANTED
and REMANDED. Gonzalez’s petition, No. 20-71308, is
DENIED.7
7 Gonzalez’s Motion to Hold Case in Abeyance, Dkt. No. 42, is
DENIED as moot now that the Alvarado-Herrera opinion has been
issued.

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28 OROZCO-LOPEZ V. GARLAND
CALLAHAN, J., concurring:
I acknowledge Montes-Lopez’s holding that the denial of
an alien’s statutory right to counsel is per se reversible error,
but for the reasons stated in the dissent in Hernandez v.
Holder, 545 F. App’x 710 (9th Cir. 2013), I believe that the
case “was wrongly decided, and we should revisit this
decision en banc.” See id. at 712–13 (Ikuta, J., dissenting).

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