Case o' The Week: Raya Hope for (d) Challenges - Raya-Vaca and Due Process Rights in Expedited Removal Proceedings
|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 reentry charges.
United States v. Victor Raya-Vaca, 2014 WL 5802287 (9th Cir. Nov. 10, 2014), decision available here.
Players: 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. at *8-*9.
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). Id.
For 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.
Image of the Honorable Judge Mary Murguia from http://lawschool.unm.edu/alumni/events/2011/chavez.php
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org