United States v. Cisneros-Rodriguez, No. 13-10645 (12-23-15)(Fletcher with Christen; Silver, Sr. D.J., dissenting).
The 9th holds that an ICE agent who conducted the defendant's administrative removal proceeding violated her due process rights when he told her that an attorney would be of no help. She was, despite the state drug conviction that made her an aggravated felon, nonetheless facially eligible for a U-visa, which is a form of hardship relief. The 9th found prejudice because the defendant possibly could have obtained one in 2010, when the hearing took place, despite already being in a removal proceeding. The defendant is 32 years old, undocumented, but has lived here most of her life; her husband and two sons are United States citizens. She also suffered abuse and injuries when she was held in the state jail.
Dissenting, Silver would affirm, based on the credibility determination of the district court that the defendant was not credible in supposedly having asked for a lawyer as to relief. Silver also believes that relief was not possible.
Congrats to Varell Fuller, AFPD in the Cal N (San Jose) office. It was a sad case, and this was a great outcome.
The decision is here: