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: In a Lone Star State of Mind - Ochoa and Section 1326(d) Challenges

 Should the Ninth be brought “in line” with the Fifth and other circuits?

 A visiting Texas district judge thinks so (as do two members of the Ninth).

United States v. Ochoa, 2017 WL 2836820 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision, with Judges Graber, McKeown, and visiting ND Texas Chief District Judge Barbara M.G. Lynn. 

 

The Honorable Judge Susan Graber

Concurrence urging en banc review by Judge Graber, joined by Judge McKeown and Chief D.J. Lynn.

  Admirable victory for ND Cal FPD Chief Ass’t Geoff Hansen, and Research & Writing Attorneys Lara Vinnard and Steven Koeninger.

Facts: Ochoa pleaded guilty to conspiring to commit a violation of the Arms Export Control Act (22 USC § 2778). Id. at *1.

  While incarcerated, Ochoa was served with an immigration notice to appear. The notice alleged Ochoa was convicted of conspiracy to export defense articles without a license, including guns and ammo as alleged in the indictment. Id. The notice alleged that this conviction was an agg felony. Id. at *2.

  The IJ found Ochoa removable and explained he did not see “any relief available.” Ochoa accepted the decision, did not appeal, and was removed. Id.

  He reentered, was found in California, and charged with illegal reentry. Id. Ochoa moved under § 1326(d) to dismiss the indictment, alleging the original removal was illegal. Specifically, Ochoa argued that § 2278 was overbroad, not divisible, and was thus not an agg felony. Id. at *4.

   The motion was denied, and Ochoa was found guilty after a stipulated facts bench trial. United States v. Ochoa, CR 14-00525-RS, Dkt. # 37.

Issue(s): “[Ochoa] argues that the removal order was invalid because his . . . conviction for conspiring to violate 22 USC § 2778 was not a categorical match to the Immigration and Nationality’s Act . . . aggravated felony or firearms categories.” 2017 WL 2836820, *1.

Held: “[W]e hold that Defendant was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgement of conviction.” Id. at *1.

Of Note: Huge win on the merits.

The Honorable Judge Michael Hawkins

  The buzz worthy issue, however, is the panel’s most reluctant application of the Ninth’s Pallares-Galan and Camacho-Lopez decisions – and Judge Graber's concurrence seeking en banc review (joined by Judges McKeown and Lynn). See id. at *10 (Graber, J., concurring) ("These anomalies call for en banc consideration to bring our jurisprudence in line with the statute and other circuits.")

  The 2006 Camacho-Lopez opinion by Judge Hawkins relied on the 2004 Pallares-Galan decision. Camacho-Lopez logically held that if an alien was convicted of an offense for which he was not originally removable, and the IJ erroneously advised on discretionary relief, the alien would be excused from proving the first two prongs of a § 1326(d) challenge:

 

1. that he exhausted administrative remedies, and

  2. that the deportation proceedings improperly deprived him of the opportunity for judicial review.

Id. at *2, discussing Camacho-Lopez, see also id. at *5 (Judges Graber, McKeown, and D.J. Lynn, concurring).

  Judge Graber 's concurrence attacks this line of established Ninth jurisprudence. The concurrence argues that a Ninth Circuit en banc court should bring the Ninth “in line” with other Circuits (like the Fifth, from whence visiting ND Texas Chief D.J. Lynn hails). Id. at *10, *9 (citing Villanueva-Diaz).

  The concurrence, however, fails to note that the government squarely waived this argument. See, e.g., United States v. Ochoa, CR 14-00525-RS, Dkt. # 27, Gov’t Opp at 3:9-12. (“More to the point, if Mr. Ochoa was ‘removed when he should not have been,’ then he suffered a prejudicial violation of his rights, and his motion should be granted. United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006).”). 

  (Worth pointing out that way back in Camacho, the government made this identical concession – a concession which Judge Hawkins appropriately enforced. 450 F.3d at 930).

  For Ochoa to go en banc, the Ninth would have to turn a very deliberate blind eye to this whopping government waiver or forfeiture. See generally United States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002) (enforcing government’s waiver of argument on appeal).

   Judge Graber says it best in her Ochoa concurrence: “We will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious . . . .” Ochoa, 2017 WL 2836820, *9 (Judges Graber, McKeown, and Chief DJ Lynn, concurring).

How to Use: This is a grudging holding on the merits, but a correct Taylor analysis. 

  Ochoa is now a lead Ninth case on Taylor overbreadth: worth a close read for your next § 1326(d) statutory challenge. See id. at *3-*4.

                                               

For Further Reading: Seems like a silly question, but should the government have to, well, you know, appeal, to have its issue heard on appeal?

  For a thoughtful piece discussing this very timely question, see Yates, Morgan, Truth or Unintended Consequences: Reining in Appellate Court Action in the Absence of a Government Appeal Vol. 82 : Iss. 3 , Article 11 (2015), available here.

Image of “The Lone Star State of Mind” from https://cdn.shopify.com/s/files/1/0149/4340/products/WRED_LONESTAR_3_b745a114-3ac4-43fc-a770-c44f3e933af7_1024x1024.jpg?v=1470950253

Image of the Honorable Judge Michael Hawkins from http://www.lawcrossing.com/images/articleimages/michael_hawkins_big.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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