Sunday, June 19, 2005

Case o' The Week: No Hall Pass for 1326 Cases

One short opinion by Judge Hall undercuts (or eliminates) a number of Section 1326 (illegal reentry) defenses. See United States v. Bahena-Cardenas, __ F.3d __, 2005 WL 1384353 (9th Cir. June 13, 2005), available here. Of broader concern, the decision rejects a solid Crawford challenge (in an unpersuasive analysis) -- a swipe that may have a broader impact for future hearsay litigation.

Players: Hall writes, Reinhardt and Wardlaw join - but why? Couldn’t that pair have at least swung a mem dispo?

Facts: After a heroin conviction, Bahena-Cardenas was ordered deported before an IJ. Id. at *1. Because he was in a coma, the defendant wasn’t at the first day of the IJ hearing – but was represented by counsel. Id. After removal, Bahena-Cardenas reentered and was prosecuted under § 1326. Id. At trial, he argued he was actually born in the U.S. Id. His hearsay objections to a warrant of deportation (proof of physical removal) were overruled. Id. On appeal, he challenged under Apprendi the use of a deportation proceeding that was not held before a jury, and also challenged the due process shortcomings of that hearing. Id. He was hammered at sentencing. Id. at *3.

Issue(s): (Central issues out of many)

1. Does § 1326 unconstitutionally rely on a deportation proceeding that was not conducted before a jury (Apprendi)? Id. at *3-*4.

2. Is an executed "warrant of deportation" testimonial hearsay evidence barred by Crawford? Id. at *5.

3. Did due process shortcomings at the IJ hearing render the prior deportation invalid? Id. at *7.


1. (No Apprendi violation): "Section 1326 does not violate the rule of Apprendi . . . . The relevant element is whether Bahena-Cardenas was ordered deported, and the jury found that fact beyond a reasonable doubt." Id. at *3.

2. [Not a Crawford violation]. "We hold that the warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and becauuse it is simply a routine, objective, cataloging of an unambigious factual matter. . . . We hold that the warrant of deportation in this case is nontestimonial and thus admissible." Id. at *5.

3. [Not a due process violation]. "[The defendant] is correct that due process requires physical presence in deportation hearings. . . . However, we conclude that the violation was not prejudicial. Bahena-Cardenas argues that holding the hearing without his presence was such an egregious due process violation that it is unnecessary to show prejudice. However, we have consistently held that defendants must show prejudice in order to invalidate a § 1326 conviction even when the due process violation is clear." Id. at *7.

Of Note:
The combination of many creative defense challenges, and Judge Hall writing the decision, has produced one of the worst § 1326 opinions in years. First, the Apprendi challenge is actually dead on – a Ninth decision called Tighe found an Apprendi bar to the use of juvenile adjudications for an ACCA case, and that rationale is directly analogous. (See briefing at the ND Cal FPD web page brief bank). The issue merits a cert. petition. Second the 9th finds that an executed warrant of deportation is not testimonial under Crawford. Judge Hall analogizes the warrant to a birth certificate (?!?) or any other routine public matter. Id. at *5. This seems completely inconsistent with Crawford – the warrant is signed by a cop (INS agent), who witnessed an essential element of a §1326 case. In fact, the warrant really only becomes relevant for a future § 1326 prosecution! Beware of Bahena-Cardenas’ taint of other Crawford litigation on what constitutes "testimonial" evidence. Finally, note that even a due process violation arising from the defendant’s absence at an IJ hearing cannot hurdle the dreaded "prejudice" bar for a collateral challenge to a deportation.

How to Use: There are few silver linings in the cloud of Bahena-Cardenas. The Crawford issue, however, seems vulnerable – it merits raising the issue below and preserving appeals for possible Supreme Court review.

For Further Reading: Statistical wonks who analyze federal data have discovered that recently – for the first time in the history of the United States – the majority of federal prosecutions will be for immigration offenses. See TRAC website here (report anticipated soon). That fact, combined with cases like Bahena-Cardenas, will make for some grim litigation for federal public defenders in the upcoming years.

Steven Kalar, Senior Litigator N.D. Cal. FPD, website at


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