Case o' The Week: No Date, No Time, No Place, No Problem - Bastide-Hernandez and Notices to Appear after Karingithi and Fermin

 “In my view, the majority opinion represents a clear rejection of our binding precedent.” 

The Hon. Judge Milan Smith

United States v. Bastide-Hernandez, 2021 WL 345581 (9th Cir. Feb. 2, 2021) (Smith, Milan, J., dissenting), decision available here.

 Players: Decision by visiting Sixth Circuit Judge Boggs, joined by Judge Bennett. 

Compelling dissent by Judge Milan Smith. 

Hard-fought appeal by AFPD Paul Shelton, Federal Defenders of Eastern Washington.  

 Facts: Bastide-Hernandez, a Mexican national, had “numerous” interactions with immigration. Id. at *1. ICE sent him notices to appear (NTA), but they did not include the date or time of the removal hearing. Id. at *1.

The immigration court then faxed a curative Notice of Hearing, but Bastide-Hernandez denied receiving it -- and the government failed to produce evidence that a custodial officer had transmitted it. Id.

There was a removal hearing – but the government failed to introduce a transcript. Id.

Bastide-Hernandez was later prosecuted for illegal re-entry, in violation of 8 USC § 1326, based on this removal. Id. The district court dismissed, holding that the defective notices deprived the immigration court of jurisdiction. Id. 

The government appealed.

 Issue(s): “Karingithi and Aguilar Fermin have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of an NTA, despite the language of the regulations.” Id. at *1.

 Held: “To clarify, we now hold that the regulation means what it says, and controls. The only logical way to interpret and apply Karingithi and Aguilar Fermin is that the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. If this were not the case, upon the filing of an NTA jurisdiction would vest, but then would unvest if the NTA lacked required time, date, and location information, only to once again revest if a subsequent curative NOH provided that missing information. Jurisdiction is not so malleable. Jurisdiction, for all its subtle complexities, is not ephemeral. It either exists or it does not. Under Karingithi and Aguilar Fermin, we now hold that when an NTA is filed, jurisdiction exists and vests with the immigration court.” Id.

Of Note: In a thoughtful dissent, Judge Milan Smith explains why the panel got it wrong. See id. at *4 (Smith, J. dissenting). 

Judge Smith (correctly) views Karingithi as controlling, and points out that in that case, the alien actually did later receive notice of the time, date and place of the hearing. Id. at *5. That is a big distinction from Bastide-Hernandez, where the Ninth somehow divines immigration court jurisdiction when deficient notices are all that are in the record. Id. at *2. 

Judge Smith’s dissent is spot on: this decision should go en banc.

 How to Use: Immigration gurus urge us to still bring Pereira challenges. As Judge Smith reports, there is now tension within the Ninth’s own Pereira authority, and e.b. or cert. action may be on the horizon. 

Also, it bears noting that Bastide-Hernandez’s own case was remanded by the panel to evaluate potential due process violations (although without a jurisdictional challenge to NTAs, § 1326(d) can be a bit of a sticky wicket.)  

For Further Reading: A central plank in President Biden’s campaign was criminal justice reform. See generally Biden web page here. 

An interesting new op-ed argues that this promised reform will be impossible until Judge Garland gets a hearing and is confirmed as A.G., and new U.S. Attorneys take over the local reins. See “Delays in Garland hearing, and in replacing U.S. attorneys, put justice reform in jeopardy,” available here. 

Here in NorCal, five contenders are running for the U.S. Attorney spot – presenting a real opportunity for the first Black U.S. Attorney in the district in roughly forty years. See “Who is in the Running for the San Francisco U.S. Attorney Spot, available here.  

 

 

Image of the Honorable Judge Milan Smith from https://www.latimes.com/california/story/2020-02-22/trump-conservative-judges-9th-circuit

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' The Week: Marriage is a Dangerous Thing - Mayea-Pulido and Equal Protection Challenges to Immigration Statutes

  Defendant guilty, because parents remained married.

United States v. Mayea-Pulido, 2020 WL 35963 (9th Cir. Jan. 3, 2020), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 

  Hard-fought appeal by AFD Kara Hartzler, Fed. Defenders of San Diego, Inc.

Facts: Mayea-Pulido, the son of unmarried Mexican nationals, was born in Mexico. Id. at *2. He and his parents moved to the U.S. shortly after his birth. His parents married, and his father became a naturalized U.S. citizen. 

   Mayea became a lawful permanent resident (“LPR”), but never applied for citizenship. His mother, who remained married to his father, also never applied for citizenship. Id. 

  At the time Mayea-Pulido turned 18, the immigration statute conferred automatic citizenship if both of the child’s parents had previously naturalized. Id. There were exceptions: for example, in the event of separation one naturalized parent sufficed. Mayea did not meet any of these exceptions, and he remained a non-citizen. Id. 

  As he grew older, Mayea-Pulido was convicted of crimes, his LPR status was revoked, and he was removed and reentered multiple times. Ultimately he was charged with a § 1326 offense and went to trial. Id. Mayea-Pulido moved for judgment of acquittal, arguing that the immigration statute was unconstitutional. Id. at *3. He argued that he would have been a citizen if his married parents had been legally separated (where he would have obtained citizenship from his father). Id. 

  His motion was denied, he was convicted, and appealed. Id.

Issue(s): “Luis Mayea-Pulido challenges his conviction for illegal reentry, which he contends is invalid because he is not an ‘alien’ who could be guilty of that crime. Mayea argues that he should have automatically become a . . . citizen as a result of the naturalization of one of his parents prior to the reentry in question. But because his parents were married, and the derivative citizenship statute at 8 U.S.C. § 1432(a) (1996) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Mayea argues that, by making his parents’ marital status a factor in the derivative citizenship determination, § 1432(a) violates the Constitution’s equal protection guarantee.” Id. at *1.

  “In Mayea’s telling, this statutory scheme impermissibly discriminates on the basis of parental marital status by allowing the children of legally separated parents to become U.S. citizens more easily than the children of non-separated parents.” Id. at *4. 1

Held: “We disagree and affirm Mayea’s conviction.” Id. at *1.

Of Note: The Ninth previously rejected a similar challenge. See Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Id. at *4. Why another opinion now? Because AFD Kara Hartzler cleverly renewed the attack after Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). Id. In Morales-Santana, SCOTUS rejected a statutory scheme that imposed different requirements on unwed mothers, and unwed fathers, for conferring citizenship of a child born abroad. Id. at *4. Because the statute differentiated based on gender, the Court applied heightened scrutiny and found an equal protection violation. Id. at *5.

  The Ninth, unfortunately, was unpersuaded: applying rational basis review to this statute, it rejected this equal protection challenge. Id. at *8.

How to Use: In Barthelemy, immigration statutes were given deference and subject to mere rational basis review. In Mayea-Pulido, Judge Friedland agrees that approach now longer flies: immigration statutes can now be subject to heightened scrutiny – a useful opening for future EP challenges. Id. at *5-*6.

                                               

For Further Reading: Remember the remarkable “Safe Schools” litigation? San Francisco has finally agreed to settle civil claims brought by the victims of these race-based arrests, made in San Francisco's Tenderloin. See, San Francisco Settles Suit Over Racially Biased Drug Arrests for $225k, available here. 

  Interesting that this civil case settles just as waves of Hondurans are now targeted for small-scale drug scales in the new “Federal Initiative for the Tenderloin.” See press release on “FIT” here. 

Image of wedding cake topper from https://www.amazon.com/Wedding-cake-topper-couple-little/dp/B06VVZF1VC

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: BIA Goes Own Way - Betansos and Plea Bargains for Categorical Analysis "Realistic Probability"

  Let’s Make a Deal (part of the categorical analysis . . .)

Betansos v. Barr, 2019 WL 2896367 (9th Cir. July 5, 2019), decision available here.

Players: Decision by Judge Murguia, joined by Judge Bea and DJ Bastian.   

Facts: The Board of Immigration Appeals (“BIA”) found Betansos ineligible for cancellation of removal. Id. at *2. His previous conviction for indecent exposure, under California Penal Code § 3141(1), was held to be a crime involving moral turpitude (“CIMT.”) Id. at *1.

   In Nunez, the Ninth had previously reversed an unpublished BIA decision on this precise question, holding that this offense was not categorically a CIMT. Id. The BIA, however, revisited the issue in a published decision, Matter of Cortes Medina, 26 I & N. Dec. 79 (BIA 2013). Id. In Cortes Medina, the BIA contradicted the Ninth’s decision in Nunez and found that Cal. Penal Code § 3141(1) was categorically a CIMT – this time offering rationales for its decision.

Issue(s): “We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 3141(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively.” Id.

Held: “[W]e conclude that we must defer to Cortes Medina pursuant to the framework [set forth in the Supreme Court’s decision in Brand X]. We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.” Id. at *2.

   “Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA’s decision in Cortes Medina.” Id. at *8.

Of Note: The nub of this loss is Chevron deference to the BIA’s “categorical” categorization of indecent exposure as a CIMT. Id. at *5. It is a disappointing outcome, and there’s the sense that the Ninth isn’t too keen on the BIA’s determined effort to scoop up this offense as a CIMT.

   Of greater interest to criminal practitioners is Judge Murguia’s very thoughtful concurrence. Id. at *11 (Murguia, J., concurring). She acknowledges that the Supreme Court requires immigration petitioners to show a “realistic probability” that a statute is overbroad in its application and therefore not a categorical match. Id. (citing Duenas-Alvarez). Judge Murguia complains, however, that the BIA’s examples in its decision are decades-old. Id. Why are there so few published decisions to use in a categorical analysis? Because “[t]he vast majority – and nearly all –of criminal cases are resolved through plea bargains.” Id. Plea bargains don’t get published, so the BIA – and the Ninth – have no way to access how broadly a statute is really being used in the real world.

  Judge Murguia ends with a call to action: “Developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas may be particularly helpful in cases such as this one . . . .” Id. at *11.

  An intriguing invitation.

How to Use: Accept Judge Murguia’s invitation! The Taylor categorical goo largely exists because state D.A.’s, legislatures, and judges are too creative and too flexible when scooping in conduct – they (very) broadly interpret state criminal statutes to uphold convictions. Let’s add to that list the “hold your nose and down it goes” plea bargains as examples, when arguing that a state statute is overbroad for a categorical match. 

  Buddy up with your friendly state public defender, and start fishing for transcripts of plea deals illustrating the broad use of Taylor-contested state statutes. Under the Betansos concurrence, those plea transcripts will be welcome exhibits for federal categorical challenges.

                                           

For Further Reading: Judge Jay Bybee has announced that he is taking senior status at the end of this year. See article here. 

  If a nomination and confirmation makes it through, Judge Bybee’s position will be the tenth Ninth spot to be filled by President Trump.

Image of “Let’s Make a Deal” from https://www.auditionsfree.com/2016/lets-make-deal-now-casting-los-angeles-area/.

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: No Date, No Time, yet J/X Fine! - Karingithi, Pereira, and I.J. Jurisdiction from a deficient "notice to appear"

A: “Huh. I honestly can’t tell.”

Q: What is the date and time of your immigration removal hearing?

(Even “Carnac the Magnificent” would be stumped by the “notice to appear” just upheld in the Ninth).

  Karingithi v. Whitaker, 2019 WL 333335(9th Cir. Jan. 28, 2019), decision available here.

Players: Decision by Judge McKeown, joined by Judges W. Fletcher and Bybee.

Facts: Karingithi, a native of Kenya, overstayed her tourist visa in the U.S. Id. at *1. She ultimately received a “notice to appear with the immigration court.” This notice had the location of the hearing, with a time and date “to be set.” Id. at *2. On the same date she was also issued a “notice of hearing,” which had the time and the date of the hearing. Id. 

  Karingithi conceded removability, but filed an asylum application, sought withholding of removal, and protection under the Convention Against Torture. She also sought, in the alternative, voluntary departure. Id. 

  After five years, these efforts were all denied and Karingithi was ordered removed. Id. She then challenged the IJ’s jurisdiction over her removal proceedings, and the BIA’s decision. Id.

Issue(s): “We consider whether the Immigration Court has jurisdiction over removal proceedings when the initial notice to appear does not specify the time and date of the proceedings, but later notices of hearing include that information.” Id. at *1.

Held: “This question is governed by federal immigration regulations, which provide that jurisdiction vests in the Immigration Court when a charging document, such as a notice to appear, is filed. 8 C.F.R. §§ 1003.13, 1003.14(a).” Id.

  “Because the charging document in this case satisfied the regulatory requirements, we conclude the Immigration Judge (‘IJ’) had jurisdiction over the removal proceedings. This reading is  consistent with the recent interpretation of these regulations by the Board of Immigration Appeals (“BIA” or the “Board”), see Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), and the only other court of appeals to reach this issue, see Hernandez-Perez v. Whitaker, 911 F.3d 305, 310–15 (6th Cir. 2018).” Id.

Of Note: This decision is important in the criminal context because of its Pereira ramifications. See Pereira v. Sessions, 138 S.Ct. 2105 (2018). In Karingithi, Judge McKeown attempts to distinguish Pereira by noting that the SCOTUS decision dealt with the “stop-time” rule, and this case addresses whether the IJ had jurisdiction after an ambiguous notice to appear was filed. Id. at *2. She explains, “Unlike the stop-time rule, the Immigration Court’s jurisdiction does not hinge on § 1229(a), so Pereira’s narrow ruling does not control our analysis. We conclude that the IJ had jurisdiction over Karingithi’s removal proceedings and that the Board properly denied her petition.” Id.

  Karingithi is a troubling decision for those mounting Section 1326(d) challenges, but, as urged below, preserve challenges. Efforts to seek review are underway.

How to Use: The FPD brain trust has bevvy of beefs with the Karingithi decision (as do a slew of district courts, that have issued thoughtful analyses arriving at the opposite outcome).

  En banc and amicus efforts are underway.

  In the meantime, preserve Pereirai challenges through Section 1326(d) motions. While the Kiringithi skirmish may have been lost for now, this jurisdictional battle continues.

                                               

For Further Reading: Last week we noted that three of President Trump’s Ninth Circuit candidates -- who did not have California blue slips -- had not been re-nominated in the new year. That changed last Wednesday. Attorneys Daniel Bress, Daniel Collins, and Kenneth Lee, were all re-nominated. See White House Press release here. 

  What has not changed are the positions of California’s two Senators. On the same day as the re-nomination announcement, Senators Feinstein and Harris issued a press release stating their opposition to these three nominees. See Senator Feinstein's and Harris' press release here. 

The Hon. Senators Graham and Feinstein

   Will the Judiciary Committee Chair, Senator Lindsey Graham, go forward on these three nominations, over the objections of a Senator Feinstein, a ranking member of the committee? Appears likely. See Roll Call article here.  

Image of  “Carnac the Magnificent” from https://en.wikipedia.org/wiki/Carnac_the_Magnificent

Image of the Senators Graham and Feinstein from https://www.sacbee.com/latest-news/article225349515.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: A brace of categorical wins -- Menendez and CPC 288(c)(1) offenses

The Honorable Judge William Fletcher

  Taylor-ed to a T.

Menendez v. Whitaker, 2018 WL 5832974 (9th Cir. Nov. 8, 2018), decision available here.

Players:  Decision by Judge W. Fletcher. Concurrence by Judge Callahan, joined by Judge Owens.  

Facts: The Ninth considered two petitions for review of decisions of the Board of Immigration Appeals (BIA). Id. at *2. In both cases, the petitioners were aliens potentially subject to removal. The BIA found that the men had either a crime of moral turpitude, or a crime involving child abuse, because they had been convicted of California Penal Code Sec. 288(c)(1). Id. Section 288(c)(1) prohibits the commission of a “lewd or lascivious act” when the victim is a child of 14 or 15 years old, and the defendant is at least 10 years older than the child. Id.

Issue(s): Is California Penal Code Section 288(c)(1) either a “crime of moral turpitude” under 8 USC § 1182(a)(2)(A)(i)(I), or a crime “involving child abuse” under 8 USC § 1227(a)(2)(E)(i), precluding immigration relief?

Held: “We hold that § 288(c)(1) is neither categorically a crime involving moral turpitude or categorically a ‘crime of child abuse.” We grant Menendez’s and Rodriguez’s petitions for review. We remand both cases to the BIA for further proceedings consistent with this opinion.” Id.

  “We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply. Descamps v. United States, 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The BIA therefore erred in concluding that Menendez’s § 288(c)(1) conviction triggered the stop-time rule and rendered her ineligible for cancellation of removal.” Id. at *7.

  “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i). The BIA therefore did not rely on an appropriate ground in refusing to reopen Rodriguez’s case.” Id. at *8.

Of Note: This is a terrific decision. Judge Fletcher carefully analyzes the full scope of state law that will sustain a conviction for Sec. 288(c)(1) offenses, and correctly concludes that the state offense is overbroad when compared to the federal definitions of “crime of moral turpitude” and “child abuse” offenses. These are not categorical matches, contrary to the BIA’s holdings.

  The case ends, however, on a troubling note. Judges Callahan and Owens, in their concurrence, bemoan the categorical and modified categorical analyses and outcomes that “turn on a determination in the abstract of the breadth of the underlying state statute rather than the person’s actual offense.” Id. at *8. Their concurrence ends with a call to action: “If Congress will not, or cannot act (see Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2016) (en banc) (Judge Owens concurring, joined by Judges Tallman, Bybee, and Callahan) ), we can only hope that the Supreme Court will devise a more straight-forward approach to this area of the law.” Id.

  As the composition of the Supreme Court changes, these calls to revisit Taylor become increasingly worrisome.  

How to Use: The obvious first cut for Menendez is in the context of Section 1326(d) motions, for illegal reentry cases. Note that for one of the petitioners, Rodriguez-Castellon, the Dimaya decision gave him the opportunity to come back before the Ninth – despite an earlier published opinion barring relief. See id. at *4 (discussing previous Rodriguez-Castellon decision). Dimaya may be the wedge that opens the door for Section 1326 clients, to mount attacks under this new Menendez decision.

                                               

For Further Reading: Respondent in Mr. Menedez’s case is Acting Attorney General Whitaker - for now. The legality of Mr. Whitaker’s appointment may now be before the Supreme Court. Litigants in the Court have asked that the name on a pending case should be Rod Rosenstein -- in their view, the DAG is is actually the acting attorney general.

  For an interesting piece on this fascinating litigation, see NBC article here. 

Image of the Honorable Judge William Fletcher from https://cgc.law.stanford.edu/clc-spotlight/clc-1-201806-interview-1-jordan-corrente-beck/06-judge-fletcher/ .

Steven Kalar, Federal Public Defender, ND Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Throws the Book(ing Q's) at 'em - Zapien and the "Booking" Exception to Miranda

 This time, “book ‘em” . . . . (and use their custodial statements against ‘em, too).
 United States v. Zapien, 2017 WL 2836162 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision with Judges McKeown, Friedland, and D. Nevada District Judge Boulware.  

Facts: Zapien was arrested, Mirandized accused by DEA agents of being a drug dealer, and he invoked his right to counsel. Id. at *1. The agents switched up and began asking custodial, or “booking,” questions -- Zapien then said he wanted to provide additional information. Id. Zapien was Mirandized again, explained he wanted to talk – and then admitted he’d been involved in drug trafficking. Id. Over defense objection, the district court permitted the questions on the theory that the biographical questions did not constitute interrogation. Id. Zapien was convicted of meth charges after a jury trial and sentenced to ten years. Id. at *2.

Issue(s): “On appeal, Luna Zapien challenges the district court’s denial of the motion to suppress . . . . Luna Zapien argues that the questioning following his invocation of his right to counsel constituted interrogation.” Id. at *3.

Held: “We disagree. We conclude that the questioning was covered by the booking exception.” Id.

Of Note: Whether the “booking exception” applies is an intensely fact-bound inquiry. Here, the booking questions didn’t relate to the charged offense, there was no evidence that the agents played upon Zapien’s weaknesses or knew that he was particularly disoriented or upset, or no facts in the record that the agents used the booking questions as a pretext. Id. at *4. The panel also collects other fact patterns, looking at both booking questions and their context. Id. 
  The Zapien outcome is what it is, and the panel carefully portrays the DEA agents as boy scouts scrupulously respecting Miranda protections. As a practical matter, however, when it is investigating agents – and not U.S. Marshals –asking these “booking” questions, and when these agents are launching into these “booking” questions right on the heels of a defendant’s solid invocation, we who represent indigent clients know that this “booking exception” is an inevitable subterfuge of Miranda protections.   

How to Use: Two footnotes may provide a foothold to distinguish Zapien in future “booking exception” cases. First, the per curiam decision dodges the (apparently unresolved) question of whether the government, or the defense, bears the burden of “establishing the applicability of the booking exception.” Id. at *4 & n.1 On a case with closer facts, tagging the government with that burden may save the day. (And really, how can it not be the government’s burden, to show invoke an exception and dodge Miranda limits?)

  The panel is also careful to note that there was no indication that Zapien’s undocumented status (discovered during the booking questions) was “used or leveraged” by the agents. Id. at 4 & n.2. Watch for the abuse of that fact – discovered during booking – even where (as here), undocumented status is not an element of the charged offense.

                                               

For Further Reading: How will the richest and most powerful country in history treat the poorest, and most vulnerable, among us?

  That question may be answered in San Francisco.

  On Tuesday, July 18, the acting director of ICE pledged to target Sanctuary Cities with new waves of ICE agents, to apprehend undocumented aliens. See article here. 

  Two days later, the Honorable District Judge William Orrick (N.D. Cal) denied the federal government’s motion for reconsideration of his Sanctuary City order: his refusal to dismiss the civil suits of Bay Area Sanctuary Cities stands. See Ord. here.  Judge Orrick also concluded that the City of San Francisco stated a sufficient claim for declaratory relief. Id. at 2:9-10.

   Yesterday, Attorney General Sessions gave a speech in Philadelphia and called on local governments to assist the “crackdown on illegal immigration.” See article here. 

   Fitting that our city, named for Saint Francis of Assisi, has become an epicenter for this brewing immigration battle.

“Book ‘em” image from https://s-media-cache-ak0.pinimg.com/236x/fb/ba/fb/fbbafb27c7f4d53f6e0c5c01e25cb145--catchphrase-hawaii-.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Process Due to Aliens Few - Peralta-Sanchez, Sec. 1225 Removals, and Due Process

   An alien with an agg felony has the right to hire an attorney at his or her expedited removal hearing.

  Surely an alien with no priors, caught within 100 miles of the border, has similar due process rights to hire counsel?

  Not so much. 

 (And don’t call us “Shirley.”)

United States v. Peralta-Sanchez, 2017 WL 510454 (9th Cir. Feb. 7, 2017), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith. Dissent by Judge Pregerson.

Hon. Judge Jay Bybee

Facts: Border agents arrested Peralta-Sanchez just north of the border. Id. at *1. He was charged with improper entry, 8 USC § 1325, and being a removed alien found in the U.S., 8 USC § 1326. Id. He was still on supervised release for his last illegal reentry conviction. Id. 

  Peralta-Sanchez had a number of felony convictions and removals. Id. at *2. In 1999, he suffered a removal order after a felony DUI. Id. In 2012, he suffered an expedited removal proceeding. Id. 

  In the present case, Peralta-Sanchez challenged the § 1326 charge, contending that the ’99 removal was invalid because DUI is no longer a “crime of violence,” and challenging the 2012 removal because he was deprived of his (purported) due process right to seek counsel or withdrawal of his application. Id. That challenge was denied, and he was convicted after a bench trial (based solely on the 2012 order of removal). Id. at *3.

Issue(s): “Peralta argues that his expedited removal was fundamentally unfair and thus cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission.” Id. at *1. 

  “The question we must ask in this case is: To what process – statutory and constitutional – was Peralta entitled?” Id. at *5. 

  “We have never addressed . . . whether due process requires that an alien be offered the opportunity to secure counsel in the context of an expedited removal under § 1225.” Id.

Held: “We find that Peralta had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government's failure to inform him of the possibility of withdrawal relief. Concluding that his 2012 expedited removal was not fundamentally unfair, we affirm his § 1326 conviction and sentence for illegal reentry. Because the revocation of his supervised release was premised on the § 1326 conviction, we affirm the district court's revocation as well.” Id. at *1.

Of Note: In a compelling dissent, Judge Harry Pregerson notes that “a staggering 83% of the people removed from the U.S. in 2013 . . . were removed without a hearing, without a judge, without legal representation, and without the opportunity to apply for most forms of relief from removal.” Id. at *13. He persuasively argues for a modest due process right: the right to retain counsel, at one’s own expense, to contest a § 1225 removal. Id. 

Hon. Judge Harry Pregerson

  The dissent has the best of this argument – hard to understand why aggravated felons have the right to retain counsel at their expedited § 1228 removals, see id. at *6 (discussing rights to counsel at various removal proceedings), but a non-felon alien would be denied this basic due process right at their § 1225 removal hearing.

How to Use: Judges Bybee and Pregerson both take pains to emphasize that Peralta-Sanchez only deals with due process rights at § 1225 proceedings. Section 1225 proceedings are expedited removals that apply to specified groups of aliens. Id. at *3. 

  There is, by contrast, a statutory right to retain counsel at § 1228 hearings (expedited removals of agg felons).  

  When mulling your § 1326(d) motion keep this important distinction in mind: a § 1228 expedited removal, without notice of the right to retain counsel, is the first step towards a righteous due process challenge. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1047 (9th Cir. 2012).  

                                               

Hon. District Judge William Orrick

For Further Reading: Is it legal for President Trump to “coerce local authorities” to “abandon Sanctuary City laws and policies,” by withholding federal funds? ND Cal D.J. Orrick will decide: SF’s suit against the President is now in his court. See suit here.  

For a thoughtful analysis of the tough questions that await WHO, see Vik Amar and Michael Schaps, How Strong is San Francisco’s ‘Sanctuary City’ Lawsuit Against the Trump Administration, available here.

Image of ICE officers from http://cdn.news12.com/polopoly_fs/1.13109005.1486853954!/httpImage/image.jpeg_gen/derivatives/display_600/image.jpeg

Image of Judges Bybee  from https://www.youtube.com/watch?v=B-jBqXV12JE

 

Image Judge Pregerson from: http://lawprofessors.typepad.com/immigration/2015/10/judges-pregerson-to-go-senior-status.html 

Image of District Judge William Orrick from https://theconservativetreehouse.files.wordpress.com/2015/08/judge-orrick-1.jpg 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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