Torres-Roldan, et al. v. Blanche
Split Score
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Case Summary
Disposition
Vacated
The petitioners sought review of a BIA decision denying asylum-related relief, arguing that the Immigration Judge never asked whether they wished to have counsel, contrary to 8 C.F.R. § 1240.10(a)(1). The Tenth Circuit agreed, found the petitioners prejudiced, vacated the BIA order, and remanded for a new hearing.
Circuit Split Identified
Legal Issue
Whether a non-citizen must demonstrate prejudice when an Immigration Judge fails to comply with 8 C.F.R. § 1240.10(a)(1)’s requirement to ask if the respondent desires counsel.
Circuit Positions
Regulatory violation automatically warrants remand; no showing of prejudice required.
Non-citizen must show prejudice resulting from the regulatory violation.
Issue expressly left open; court grants relief without deciding which standard applies.
Conflict Summary
The Second and Third Circuits hold that a violation of the regulation governing the right to counsel automatically requires remand without any showing of prejudice, relying on the Accardi doctrine. The Fourth and Fifth Circuits require the non-citizen to prove that the regulatory violation caused prejudice. The Tenth Circuit, in this opinion, acknowledges the split but expressly declines to choose either approach, resolving the case on the assumption that prejudice exists even under the stricter rule.