This is not the courtroom where the case is being heard. Photo by Zachary Caraway on Pexels
A federal appeals court has thrown out the asylum denial of a Peruvian mother and her son because the immigration judge in Denver never asked her, individually, whether she wanted a lawyer. In Torres-Roldan v. Blanche, decided October 1 and reported by Colorado Politics on October 9, a unanimous Tenth Circuit panel held that a general warning about the right to counsel, delivered to a room of several families, did not satisfy the Justice Department’s own rule, and it ordered a new hearing.
The order is unpublished, so it does not bind other judges. But it lands at a moment when immigration courts are pushing to close cases faster and nearly half of completed cases involve a respondent with no lawyer on file. For anyone who went through a crowded first hearing and later lost on the merits without counsel, the decision describes a procedural defect worth checking the transcript for.
One question the judge never asked, across five hearings
The rule at issue is short. Under 8 C.F.R. § 1240.10(a), an immigration judge must tell a respondent that he or she may be represented at no expense to the government, and must “require the respondent to state then and there whether he or she desires representation.” The Board of Immigration Appeals has read that to mean the judge should ask specifically whether the person wants to go forward without a lawyer and get a knowing, voluntary answer, a reading it set out in Matter of C-B- in 2012.
According to the opinion, Rosa Torres-Roldan and her minor son appeared at a group master calendar hearing in February 2024 alongside several other families. The judge advised the group of the right to counsel and provided a list of legal aid attorneys, then questioned her individually about other matters. Over three more hearings the judge discussed whether her husband, whose own case was proceeding separately, should find a lawyer before deciding whether to testify. No one ever asked Torres-Roldan whether she wanted one for herself. She and her son represented themselves at the February 2025 merits hearing. The judge found the testimony credible but held that the family had not shown past persecution, a well-founded fear of future persecution, or that Peru’s authorities could not protect them, and denied asylum, withholding of removal and protection under the Convention Against Torture. The Board affirmed.
Judge Paul J. Kelly Jr., writing for a panel that also included Judges Harris Hartz and Joel Carson, found the regulation was violated. The Board had seen no problem with how the hearings were run; the panel disagreed, noting that across five hearings the judge never put the question to her.
The harder question the court chose not to answer
The more consequential legal issue in the case is what a respondent has to prove once a judge skips a step like this, and the federal circuits have split on it. The Second Circuit, in Montilla v. INS (1991), held that a person need only show the regulation existed for his benefit and was not followed, applying the Accardi doctrine that agencies must obey their own rules. The Third Circuit went further in Aquino v. Attorney General (2022), holding that a violation of the right to counsel so undermines a hearing that remand is automatic. The Fourth and Fifth Circuits require the person to show prejudice, meaning the violation could have affected the outcome.
The Tenth Circuit has never picked a side, and it declined to here. Instead it assumed prejudice was required and found it: a lawyer, the panel wrote, “could have, through competent questioning, helped to clarify” the husband’s testimony about the attacks, their possible link to his work for political campaigns, and whether local police were complicit. Those are the elements on which asylum claims built on threats from criminal groups frequently turn: whether the harm is tied to a protected ground such as political opinion, and whether the home government is unable or unwilling to protect. The court added in a footnote that it was not saying the family is entitled to relief, only that counsel could have materially changed how the case was presented.
In our reading, that choice keeps the ruling narrow but also makes it more portable. Because the panel found prejudice on facts that are common in self-represented asylum cases, respondents in circuits that demand a showing of harm can point to its reasoning, even though it can be cited only for persuasive value.
Why a procedural ruling matters more in 2026
The hearings took place in 2024, but the conditions that produce this kind of error are more pronounced now. EOIR’s own figures show the scale of self-representation: of 263,133 cases completed in fiscal 2025, excluding in absentia orders, terminations and dismissals, 119,519 involved respondents with no representative on file, according to the agency’s Current Representation Rates table (data generated November 18, 2025). By our calculation, that is about 45 percent. The courts still carried 3,469,569 pending cases at the end of the third quarter of fiscal 2026, according to EOIR’s adjudication statistics, and EOIR hired 192 immigration judges in the first three quarters of that year, more than in any full year it reports going back to fiscal 2016.
Group master calendar hearings are one of the main tools courts use to move that volume, and many of the new judges are learning the docket while it grows. A group advisal followed by quick individual pleadings is efficient. Torres-Roldan is a reminder that the regulation still requires an individual answer from each respondent, recorded on the transcript, and that skipping it can cost the government the entire merits hearing on appeal.
Questions readers are asking
Does this ruling apply to my immigration court case?
Not directly. It is an unpublished order and judgment, which under Tenth Circuit rules is not binding precedent. It can be cited as persuasive authority, mainly in cases reviewed by the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The underlying regulation, however, applies in every immigration court nationwide.
How do I know whether the judge asked me if I wanted a lawyer?
The hearing transcript or the digital audio recording is the only reliable answer. A general statement to everyone in the courtroom, or a list of legal aid providers, is not the same as the judge asking you personally and recording your answer. An attorney can request the record of proceedings from EOIR.
If the judge skipped that step, do I automatically get a new hearing?
It depends on where your case is and how far along it is. In the Third Circuit, remand is automatic. In the Second Circuit, the showing required is minimal. In the Fourth and Fifth Circuits, you must show the violation could have affected the outcome. The issue generally has to be raised at the Board of Immigration Appeals first, and a petition for review of a final removal order must be filed in the court of appeals within 30 days of the Board’s decision. Cases that are already final are much harder to reopen.
Does the family now win asylum?
No. They get a new hearing before an immigration judge, where they may appear with counsel. The court expressly said it was not deciding whether they qualify for asylum or other protection.
The Justice Department could ask the full Tenth Circuit to rehear the case, though that is uncommon for an unpublished order. The more likely next chapter is elsewhere: as the circuit split on prejudice persists and courts run larger calendars, the question of what remedy follows a skipped counsel advisal is a plausible candidate for a published ruling or, eventually, Supreme Court review.
This article is for general information and is not legal advice.
Sources: Torres-Roldan v. Blanche, No. 25-9562 (10th Cir. Oct. 1, 2026), order and judgment; 8 C.F.R. § 1240.10; EOIR, Current Representation Rates, FY 2025; EOIR, Pending Cases, New Cases, and Total Completions (through FY 2026 Q3); EOIR, Immigration Judge Hiring (through FY 2026 Q3); Colorado Politics, “10th Circuit faults Colorado immigration judge for not following rule,” Oct. 9, 2026.
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