When Alex Pino Porras tried to convince a Homeland Security officer that he faced death if he returned to Ecuador, his case was referred to immigration court. At a hearing in December 2022, where Pino Porras asked to be spared from deportation in a process known as withholding of removal, the judge found his story unconvincing and ordered him removed.

But something along the way didn't happen as it should have, Pino Porras later argued in Philadelphia federal court. Although he told the immigration judge he wanted his attorney present at what's known as a reasonable fear hearing — a screening process for noncitizens seeking protection from deportation based on the risk of persecution or torture — the judge moved forward without the lawyer, stating it was within her discretion to proceed.

At that high-stakes hearing, Immigration Judge Ellen Karesh dismissed Pino Porras' claims of fearing torture or death due to his Indigenous identity and issued a deportation order that wrongly stated he was "part of a gang."

Attorneys at the New York Legal Assistance Group challenged the decision before the Third Circuit, arguing that Pino Porras had a statutory right to have his lawyer with him during the hearing.

On June 25, a split three-judge panel ruled in Pino Porras' favor, holding that noncitizens have a right under federal law to be represented by counsel during reasonable fear hearings. It marked only the second time a federal appellate court had addressed the issue.

Writing for the majority, U.S. Circuit Judge Arianna J. Freeman vacated the deportation order and remanded the case, finding the immigration judge's decision unsupported by factual evidence, including her unsubstantiated claim that Pino Porras was in a gang.

More significantly, the panel found that Section 1362 of Title 8 of the U.S. Code provides a right to counsel during reasonable fear proceedings. The decision aligns with the Ninth Circuit's 2021 ruling in Orozco-Lopez, whichheld that noncitizens with reinstated removal orders are statutorily entitled under federal law to have counsel — at their own expense — during their "reasonable fear" hearings before an immigration judge.

With no conflicting rulings from other circuits, U.S. Supreme Court review appears unlikely for now, attorneys say.

"Mr. Pino Porras won a total victory," said Kate Fetrow, an attorney in NYLAG's Special Litigation Unit who argued the case in March. Most of the filings that are part of Pino Porras' docket remain sealed.

Jodi Ziesemer, co-director of NYLAG's Immigrant Protection Unit and another attorney for Pino Porras, said the decision could benefit many other migrants detained in the Third Circuit, which includes several major U.S. Immigration and Customs Enforcement detention facilities in Pennsylvania and New Jersey.

"As the Trump administration moves to deport more and more people, ensuring that everyone has the ability to have counsel present at this final step can be the difference between being deported — and facing the possibility of torture or death — or being able to stay safely in the United States," Ziesemer said.

According to court records, the immigration judge scheduled the reasonable fear hearing for four days after the Dec. 2, 2022 hearing. Pino Porras, then detained at the Moshannon Valley Processing Center in Pennsylvania, was notified only the day before. He tried to contact his attorney immediately but could not reach her.

When the hearing began on Dec. 6, he told the judge he had legal representation. The judge said that "subject to my discretion," Pino Porras could be represented by an attorney, but ultimately proceeded without the lawyer.

"The IJ's failure to afford Pino Porras an opportunity to contact his counsel constitutes an abuse of discretion," the Third Circuit panel ruled.

Because he crossed the border illegally, his attorneys say, the only possible relief available to Pino Porras is withholding of removal, a form of protection with a higher legal standard than asylum. To win withholding, he must show a likelihood of persecution or torture in Ecuador, with the involvement or acquiescence of that country's government.

Pino Porras claimed he and his family have suffered attacks and government abuse. Several family members have been murdered, he said.

But an asylum officer found insufficient evidence that Pino Porras would face torture or persecution in Ecuador based on his Indigenous heritage — his ethnic identify is broadly described as Quechua — and status as a landowner, and the immigration judge later agreed.

"I have a lawyer," Pino Porras told the judge, according to comments he shared through his attorneys. "I kept saying I had a lawyer. When she [the Immigration Judge] decided to proceed, I felt frustrated because I felt alone, with no one to defend me."

NYLAG attorneys argued that denying Pino Porras representation violated Section 1362, which gives individuals in "any removal proceedings" the right to be represented at their own expense by counsel. The Third Circuit agreed.

The ruling marks the first time that a court has explicitly recognized a right to counsel in reasonable fear proceedings. The decision aligns with the Ninth Circuit's ruling in Orozco-Lopez, which strengthened the right across jurisdictions.

In a dissenting opinion, U.S. Circuit Judge Paul Brian Matey pointed to Pino Porras' criminal convictions and illegal reentry and argued that federal law doesn't explicitly give noncitizens a right to be represented at reasonable fear hearings. Judge Matey said reasonable fear proceedings are not technically "removal proceedings," and thus fall outside the scope of Section 1362. He also described the immigration judge's gang member statement as a "harmless error."

Judge Matey noted that before 1996, federal law treated deportation and exclusion — preventing a noncitizen from entering the country — as two separate processes, both of which recognized a right to counsel. When Congress unified the system into a single "removal" proceeding, he argued, it did not explicitly extend that right to preliminary screenings like reasonable fear hearings.

In a recent interview, Pino Porras' attorneys told Law360 that legal representation is crucial at reasonable fear hearings.

"These proceedings can be the difference between life and death, and having an attorney present at the proceeding can also be the difference between life and death," Fetrow said. "The attorney can help you articulate arguments, can push back on factual misstatements by the immigration judge or explain to the judge how the person has met that standard."

Ziesemer said that since reentering the U.S., Pino Porras has lived in New York with his ailing mother and partially paralyzed brother. Before being detained, he worked as a chef in several restaurants. Now in detention, he continues to cook — unpaid — for other detainees.

Pino Porras said his mother came to the U.S. to pursue the "American dream."

"I came here to escape a corrupt system of suffering and come to a country of laws where you can feel safe," he said through his lawyers. "I would like to stay in this country, to help my mother, and be with my children. I would like to one day have a house for my family to visit, get a job in welding, and study English."

In his dissent, Judge Matey brought up Pino Porras' criminal history and unlawful entries into the U.S. to give factual context for why, in his view, the IJ's decision was supported by substantial evidence and a remand was unnecessary.

Pino Porras entered the country without authorization in 1991, an action that automatically made him ineligible for asylum, he said through his layers. He remained unlawfully in the country for years, receiving convictions for possessing stolen property and driving under the influence of alcohol, until he was deported to Ecuador in 2012.

After illegally reentering the U.S. in 2015, he was again arrested for driving drunk. More recently, in New York City, he was charged with rape, sexual abuse of a minor and assault, though those charges were ultimately dropped.

Pino Porras is currently detained at a federal facility in Philadelphia. According to his attorneys, the detention conditions are harsh, but he remains "hopeful and engaged."

A second reasonable fear screening hearing will be held on Aug. 26. If the immigration judge determines he has a demonstrable fear of being tortured or killed if deported, Pino Porras will then have to successfully prove his claims to obtain withholding of removal.

Fetrow said Pino Porras' convictions are irrelevant to the Third Circuit holding or the rights that the decision is recognizing for noncitizens facing reasonable fear hearings.

"It is an obligation on the government to determine whether or not it's trying to deport someone to a country where they're going to get persecuted or tortured or killed," she said. "That is true regardless of who the person is or what they've done."

--Editing by Alanna Weissman.