Judge o' The Week: The Honorable Judge Harry Pregerson

  I’m invoking author’s privilege to pay tribute to Judge Harry Pregerson, for whom I clerked. He passed away last week.

  At the memorial service on Friday eloquent speakers struggled with their tasks before a huge (and teary) crowd. Think of that that trope of blind men describing their parts of an elephant – it was a life far too big to take in with any one grab. I’ll therefore mull one small corner of the Pregerson pachyderm: Harry the Judge.

  In the Ninth the senior active member of a three-judge panel assigns the job of writing the majority disposition. That senior judge can accordingly horde a juicy plum of an opinion to write for themselves. Appointed by Carter in 1979, the very senior Judge Pregerson often controlled this valuable power of the pen. 
 So what high-profile appeals did he assign himself to write? 
  Inevitably, he took the Social Security benefit cases, the immigration appeals, the guideline arguments – legions of obscure and “unimportant” opinions that some of his colleagues may have been secretly relieved to dodge. Sure, he’d tackle cutting-edge con law cases, and yes, his decisions have made the New York Times. His real passions, however, were disability insurance benefits and the absurd intricacies of the Immigration and Nationality Act. The less powerful, prestigious and newsworthy the plaintiff or criminal defendant, the more likely that appeal would end up on the desk of a Pregerson clerk to help with a draft. See e.g., Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999) (Admin law judge required to call vocational expert for a disability claim) (citing, coincidentally, the persuasive authority of other J. Pregerson disability decisions!)

  Lipman is a notable example of this opinion cherry-picking. Michael Lipman got twenty-one months for illegal reentry. See United States v. Lipman, 133 F.3d 726, 728 (9th Cir. 1998). He had “numerous” felony convictions. Id. Lipman argued his guideline sentence should have been lower because he had been assimilated into American society. Id. Honestly, who really cares about the Lipmans in our world – undocumented aliens who have racked up multiple felony priors and are convicted of illegal reentry?

  Harry cared. Harry really cared.

  In Lipman, the Judge explained that cultural assimilation is a valid departure basis from the (then) mandatory guidelines. Id. at 732. This 19-year old opinion is now a quirky little corner of the increasingly-irrelevant sentencing guidelines. Yet judicial recognition of this important facet of our clients’ humanity has made a real difference for hundreds of assimilated undocumented aliens facing harsh federal sentences.

  Pregerson cared about the little guy. He even cared when the little guy was – well, a bit of a schmuck. The Judge was a proud Marine, a Purple Heart recipient who was grievously wounded on Okinawa in WWII. Yet in two published cases Judge Pregerson came out swinging hard on behalf of our nutty clients who lied about receiving Purple Hearts. See e.g. Blog entry here,  see also blog entry here . Remarkable opinions, written by a jurist and a veteran still limping from the shrapnel he carried.

  I am one of the one hundred and fifty lawyers who proudly serve in Harry’s Clerk Corps (he never discharged us from duty). We clerks know that Judge Pregerson’s legal legacy isn’t a single bold constitutional opinion, or his brave feuds with a misguided SCOTUS. His true judicial legacies are the innumerable, obscure opinions of which you’ve never heard -- the “unimportant” dispos that made a world of difference to the poor, to immigrants, to our indigent clients facing unjust laws and punitive sentencing guidelines.

  Gandhi allegedly observed that “a nation’s greatness is measured by how it treats its weakest members.” That’s an equally good yardstick for a judicial career. By that standard (and by many others), the Ninth Circuit’s Honorable Judge Harry Pregerson was one of the greatest.

  Semper fidelis, HP.  

Image of Judge Harry Pregerson and clerks from http://www.dailynews.com/2016/11/10/from-a-hell-of-a-fight-to-fighting-for-the-underdog-dennis-mccarthy/

Image of Marine Harry Pregerson from Memorial Service, Shrine Auditorium, December 1, 2017.

Steven Kalar, Federal Public Defender Northern District of California. 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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Case o' The Week: A Very Feliz Navidad - Cisneros-Rodriguez and Administrative Removal Hearings

Hon. Judge William Fletcher

  Merry Christmas, Xochitl.

United States v. Cisneros-Rodriguez, 2015 WL 93009958 (9th Cir. December 23, 2015), decision available here.

Players: Decision by Judge Fletcher, joined by Judge Christen. Dissent by DJ Silver. 

Admirable win for San Jose Branch Chief Varell Fuller, and Research and Writing Attorneys Lara Vinnard and Heather Angove, ND Cal FPD.

Facts: Xochitl Cisneros-Rodriguez, a 32-year old Mexican national, was brought to the States as a child. Id. She was married to a US citizen husband, and mother to two US-citizen sons. Id.  

  Before this illegal reentry case, Cisneros was arrested for possession of meth for sale. Her co-D, a woman named Rodriguez, threatened and beat Cisneros. Id. Cisneros provided information against Rodriguez; both women were ultimately convicted of various crimes. Id. at *2. When Cisneros’ drug conviction was final she was placed in administrative removal proceedings (conducted by an ICE agent, not an Immigration Judge). Id. After a brief proceeding, a removal order was ultimately finalized: the next day Cisneros was removed to Mexico. Id. 

  Cisneros reentered and was charged with a violation of 8 USC Sec. 1326. Id. The defense brought a due process challenge to the administrative proceeding. The district court held an evidentiary hearing, but ultimately denied the motion to dismiss the indictment. Id. at *5. After a bench trial, Cisneros appealed.

Issue(s): “Cisneros argues that [ICE Agent Jose] Linares’s advice violated her due process rights, on the ground that he improperly obtained an invalid waiver of her right to counsel.” Id. at *6.

Held: “We agree.” Id. 

“We hold that the ICE agent who conducted Cisneros's administrative removal proceeding violated her due process rights by telling her that an attorney would not have been able to help her when she was facially eligible for a U-visa, a form of hardship relief available to a person convicted of an aggravated felony. We further hold that Cisneros was prejudiced by the due process violation because it was plausible that Cisneros would have obtained a U-visa had she applied for one in 2010, notwithstanding the fact that she had already been placed in administrative removal proceedings . . . .” Id. at *1. 

“We hold that if an ICE agent erroneously advises an uncounseled alien in an administrative removal proceeding that an attorney will not be able to provide assistance, any waiver of the right to counsel based on that advice is invalid because it is not ‘considered and intelligent.’” Id. at *7.

Of Note: Did Agent Linares actually advise Cisneros that an attorney could not help her? The district court so assumed, but made no factual finding. Remand? The district judge has retired, and Cisneros is now in Mexico – making it tough for fact finding. So the Ninth thinks “it appropriate to decide the factual issue ourselves.” Id. at *8. 

This is a fascinating discussion, as Judge Fletcher considers discredited ICE Agent Jose Linares – an agent who had made false accusations, had (improperly) kept aliens' possessions in his safe, and had been demoted before the hearing. Id. *8.

(This is the caliber of ICE official who decides removal summary administrative removal proceedings, instead of Immigration Judges?)

How to Use: This due process win is good. This prejudice win is great. Judge Fletcher explains, “We hold . . . that an undocumented alien attacking an administrative removal order may argue that a due process violation that occurred during her removal proceedings was prejudicial if (a) she identifies a form of relief for which she was eligible to apply, notwithstanding her aggravated felony conviction, and (b) she establishes that it was ‘plausible’ that, but for the due process violation, she would have been permitted to apply for, and would have obtained, such relief.” Id. at *11. 

Very welcome new prejudice angle, for Section 1326(d) arguments.

                                   

For Further Reading: On the theme of that holiday spirit, here's a fitting quote: “I can't think of anything more important than to try to help as many people as you can. That is a big motivator for me. Sometimes the law is not very compassionate.” 

For a very good article on one of the Ninth’s biggest hearts, visit Judge Harry Pregerson, leaving the bench at 92, always followed his conscience, available here.

Image of the Honorable Judge William Fletcher from http://www.law2.byu.edu/news2/jurist-in-residence-judge-william-a-fletcher

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

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