Morales-Izquierdo: Good 1326 case, though maybe short-lived

Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir 2004): Immigration law – Reinstatement of Deportations. Ninth Circuit rejects § 241(a)(5) reinstatement of deportation procedures.

Players: A good, old-fashioned Ninth Circuit panel: D.W. Nelson, Sidney Thomas and Stephen Reinhardt.

Facts: Raul Morales-Izquierdo was a Mexican citizen with several prior deportations and removals. 388 F.3d 1299, 1301. Ultimately, he married a US citizen wife and filed an I-30 petition to adjust status. That was denied, and instead he was served with a "notice of intent to reinstate Morales’ prior deportation order, in accordance with INA § 241(a)(5), 8 USC § 1231(a)(5)." Id.

Issue(s): "[W]hether the reinstatement procedures established by the Attorney General at 8 CFR § 241.8 are unauthorized by the INA because they provide for reinstatement without the right to a hearing before an immigration judge, as required by INA § 240(a), 8 USC § 1229(a)(a)." Id. at 1302.

Held: "The Attorney General’s promulgation of the reinstatement regulation established at 8 CFR § 241.8, a regulation that vests an immigration office with the authority to determine the admissibility or deportability of an alien, is in conflict with § 240(a) of the Immigration and Nationality Act." Id. at 1305. (In other words, the reinstatement procedure – done without an immigration judge – is invalid).

Of Note: The Ninth Circuit’s decision created a circuit split. See Azzedine Lattab v. Ashcroft, 384 F.3d 8, 19-20 (1st Cir. 2004) ("The bottom line is that we find the INA ambiguous with regard to the procedures to be used when the government, in the post-IIRIRA era, seeks to reinstate a prior removal order against an illegal reentrant. Because the statutory scheme lacks clarity in this respect, we answer the first Chevron question in the negative and proceed to the second Chevron question. At that stage, we assay the government's implementation of the statute, as expressed in its rulemaking, mindful that we must defer to that rulemaking as long as we find it reasonable . . . . We have little difficulty in concluding that the government's interpretation satisfies this condition.") (internal citations omitted).

How to Use: Morales-Izquierdo is important for illegal reentry cases. Many § 1326 defendants have been deported after reinstatements of deportation, under § 241(a)(5). In the Northern District of California, AFPDs have been challenging indictments that charge deportations based on § 241(a)(5) reinstatements. In response, the government has been dismissing and superceding with earlier deportations. (Also, AFPD Lara Vinnard has won a Morales-Izquierdo motion before Judge Whyte – contact her for the order). This is a useful gambit, because those earlier deportations often precede agg felonies. The result can be a dramatically lower sentencing exposure. In addition, the earlier, prior deportations have occasionally already been used for a Section 1326 conviction – and the Ninth requires that in this situation, the government also prove a subsequent removal. See United States v. Meza-Villarello, 602 F.2d 209, 211 (9th Cir. 1979). That subsequent removal is typically the deportation that caused the Morales-Izquierdo problems in the first place. Hence, a Morales-Izquierdo motion can raise all sorts of unsettled legal questions that can drive deals.

For Further Reading: The government reportedly plans to seek en banc review of this case, although it hasn’t done so to date. See this article. If the case does not get reversed en banc in the Ninth, anticipate seeing the Section 241(a)(5) issue on the Supreme Court’s docket next term.

Steven Kalar, Senior Litigator ND Cal.