|The Hon. Judge Mary Murguia|
“A nation’s greatness is
measured by how it treats its weakest members,” opined Ghandi.
The Ninth measures up
well, in a new due process decision (with teeth!) for an alien facing illegal
United States v. Victor Raya-Vaca, 2014 WL
5802287 (9th Cir. Nov. 10, 2014), decision available here.
Decision by Judge Murguia, joined by Judges Reinhardt and Fisher. Big win for
Ass’t Federal Defender Chloe Dillon, Federal Defenders of San Diego, Inc.
Facts: Raya-Vaca went through expedited removal proceedings
under 8 USC § 1225 and removed, was later found in the U.S., and was charged
with illegal reentry under 8 USC § 1326. Id.
at *1. Section 1225 was originally used for the expedited arrival of aliens “arriving”
in the US, but the Dept. of Homeland Security has expanded the procedure for
aliens discovered within 100 miles of the US border. Id. at *2. A Border Patrol agent had given Raya-Vaca a record of
sworn statement, and the agent ordered him removed under Section 1225. Id. at *3. During the Section 1326
prosecution, Raya-Vaca challenged the validity of this Section 1225 removal. Id. at *4. In a sworn statement in
support of his motion, Raya-Vaca explained that the sworn statement he signed
was incomplete and that he did not understand what he was signing. Id. at *7. Raya-Vaca’s motion was
denied, and he entered a conditional plea, preserving his right to appeal.
Id. at *4.
Issue(s): “Raya-Vaca contends that his expedited removal
proceedings did not comport with due process because, among other errors, the
immigration officer who entered the removal order failed to provide Raya-Vaca
with notice of the charge against him and an opportunity to respond. Raya-Vaca
further asserts that he suffered prejudice as a result.” Id. at *1.
Held: “We agree.” Id. at *1. “[W]e hold that Raya-Vaca was
entitled to expedited removal proceedings that conformed to the dictates of due
process.” Id. at *6. “[W]e conclude
that any failure to inform Raya-Vaca of the charge against him and to provide
him the opportunity to review the sworn statement constituted a violation of
Raya-Vaca’s due process rights.” Id. at
*6. “We further conclude that Raya-Vaca’s due process rights to notice and an
opportunity to respond were indeed violated during his expedited removal
proceedings.” Id. at *7. “[W]e hold
that the immigration officer failed to advise Raya-Vaca of the charge against
him and to permit him to review the sworn statement, in contravention of
Raya-Vaca’s due process rights. In so holding, we reject the Government’s
argument that in order to show the due process violation itself—the first prong
of a showing of fundamental unfairness – Raya-Vaca must establish that he was
prejudiced by the failure to comply with the regulation.” Id.
“[B]ecause Raya-Vaca could plausibly have been granted relief
in the form of withdrawal of his application for admission, we hold that his
2011 removal order is invalid and cannot serve as the predicate for his
conviction under 8 USC § 1326. We therefore reverse the denial of Raya-Vaca’s
motion to dismiss the information and his conviction.” Id. at *13.
Of Note: Much to celebrate in this thoughtful opinion. Big
picture, Judge Murguia holds that these “turn around” Section 1225 removals
trigger due process protections for the aliens who are being questioned and
removed. Id. at *6. It is a just
decision that honors the dignity of aliens faced with the most cursory review “process”
imaginable (though the Court wisely characterizes this holding as one compelled
by Supreme Court precedent). The prejudice finding on Raya-Vaca’s facts is also worth a close read (and extrapolation
into other Section 1326(d) challenges). Id.
How to Use:
In an admirable argument, the San Diego Defender threw the government’s own
figures back at it in the prejudice fight. Id.
at *11. Raya-Vaca well-illustrates the
effective use of statistical arguments for the benefit of our clients (and
Judge Murguia’s citation of the Supreme Court’s own use of stats helps as well).
Further Reading: Happy tenth birthday, Crawford. For a great piece on how the
Court got it wrong with Roberts, and what
the Supremes can do to get the doctrine back
on track, see Crawford v. Washington,
The Next Ten Years by Professor
Jeffrey Fisher, available here.
Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
Labels: Conditional Pleas, Due Process, Illegal reentry, Murguia, Section 1326