Wednesday, October 30, 2013

United States v. Cuenca-Vega, No. 12-10356 (9th Cir. Oct. 30, 2013) (panel is Reinhardt, Noonan, and Hurwitz)

--- A divided panel of the Ninth Circuit reversed a jury-trial conviction for illegal reentry because the district court erred in denying his collateral attack on the validity of the underlying deportation order and thus erred in denying the defendant's motion to dismiss the indictment.

The defendant, who previously held a green card and had been in the United States since he was in junior high, pleaded nolo contendered to possession of methamphetamine, served 60 days in the county jail, and was deported. He challenged the deportation order on the ground that the IJ denied him due process by failing to advise him that he is eligible for voluntary departure. (He also raised two other grounds, which were not at issue in the appeal.) The majority concluded that this failure invalidated the underlying removal order.

The government conceded that the IJ failed to inform the defendant that he was eligible for voluntary departure, but argued that this was not a plausible ground for relief, see United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013), because the defendant could not show that he actually would have accepted voluntary departure in the removal proceedings. The majority rejected this argument because it "overstate[d] Cuenca's burden to demonstrate a plausible ground for relief." All the defendant has to show is that the error may have affected the outcome of the proceeding; once that prima facie showing is made, the government then bears the burden of showing that it could not have. United States v. Cerda-Pena, 799 F.2d 1374 (9th Cir. 1986). Here, the government's concession made that prima facie showing.

Moreover, the majority said that the government did not meet its burden of persuasion. First, the fact that the defendant was trying to expunge his drug conviction while the removal proceedings were pending "was not incompatible with voluntary departure" because he could have continued to pursue expungement from abroad and then, if successful, reopened his removal proceedings on that basis. See Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006). Moreover, voluntary departure would not have exposed the defendant to a future illegal-reentry prosecution.

The majority also rejected the government's plain-error argument, concluding that the voluntary-departure error was properly before the court even though the defendant did not make the argument before the district court. It is not a new claim, but instead an alternative argument to support "what has been his consistent claim from the beginning" -- that the removal order is invalid because it violated due process. See Yee v. City of Escondido, 503 U.S. 519 (1992). Even if plain-error review were appropriate, the majority held that the defendant met that standard. It was plain that the deportation order was invalid, and that invalidity affected the outcome of the district-court proceedings because if the district court had recognized as much, it would have dismissed the illegal-reentry indictment with prejudice. "When an individual is convicted based on an invalid deportation order that violated his right to due process, it must necessarily have a serious effect on the fairness and integrity of judicial proceedings."

Judge Hurwitz (!) dissented. First, he would have applied plain-error review because the defendant did not make the specific argument about the invalidity of the removal order before the district court. Here, he argued, "the only possible relationship between the claims Cuenca made below and the one he makes here is that they each derive generally from the Due Process Clause. That is not nearly close enough" to invoke the Yee preservation rule. Before the district court, the defendant had focused on the substantive correctness of the removal order, while the voluntary-departure claim was "an entirely different alleged error."

Nor was the error as plain to Judge Hurwitz as it was to the majority. It cannot have denied due process for the district court, acting in his view as an appellate court with respect to the removal proceedings, to have failed to "anticipate an argument never made." Nor was it plausible to Judge Hurwitz that the defendant would have accepted voluntary departure if it had been offered to him. The government's concession of eligibility did not meet the plausibility requirement on which the majority relied. "The majority's speculation is not implausible. But one could equally well speculate to the contrary." Conceding removability would have required the defendant to admit that his methamphetamine-possession crime was a "controlled substance offense." And instead of pointing to all the ways that the defendant could have continued to press from abroad his case for remaining in the United States, Judge Hurwitz said, the majority should have given the government the chance to do so for the first time in front of the district court.
The decision is here:


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