Sunday, February 11, 2007

Case o' The Week: "Why bother with a Judge?," concludes Ninth in Morales-Izquierdo

Judge Dredd (left) is a classic comic, and lousy movie, where the futuristic protagonist is cop, prosecutor, and judge, all rolled into one. Sort of like the "low-level Department of Homeland Security employee who served as both prosecutor and judge" in this case. Thomas, J., dissenting at 1415. In Morales-Izquierdo, Judge Kozinski writes for the en banc court and holds that a Department of Homeland Security officer can reinstate removal of an alien, without taking the alien before an immigration judge. Morales-Izquierdo v. Gonzalez, __ F.3d __, No. 03-70674, Slip. Op. at 1389 (9th Cir. Feb. 6, 2007), opinion available here.

Players: Kozinski authors; Thomas writes for the dissent.

Facts: Morales was removed to Mexico several times, re-entered, and married a US citizen wife. Slip op. at 1395-96. When he and his wife tried to adjust his status, an immigration official served him with notice to reinstate his removal order under an immigration code – and CFR – that permits reinstatement without judicial review. Id. at 1396. A three-judge panel held that reinstatement could only be imposed by an IJ. Id.

Issue(s): “When an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him again unless it has been ‘reinstated’ by an authorized official. Until 1997, removal orders could only be reinstated by immigration judges. That year, the Attorney General changed the applicable regulation to delegate this authority, in most cases, to immigration officers. We consider whether this change in regulation is valid.” Id. at 1394.

Held: “We conclude that a previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The reinstatement statute and its implementing regulation comport with due process, and [the] C.F.R. is a valid interpretation of the INA.” Id. at 1413.

Of Note: As blogged two years ago here, the original Morales-Izquierdo decision was a great opinion for the defense of illegal reentry cases. Unfortunately, the case bucked four other Circuits that had held the opposite. Id. at 1397. Nonetheless, Judge Thomas here presents a spirited and compelling dissent, attacking the abrupt new course of Homeland Security after 45 years of contrary practice, and questioning the constitutionality of a procedure employed by “low-level” immigration officials to arrest unsuspecting aliens that come in with their spouses to adjust status. Id. at 1428. (Like the facts of this case – terrifically unfair).

How to Use: Is a “reinstatement” a removal that can be used for a § 1326 prosecution after Morales-Izquierdo? Can agg felonies before reinstatements be used to jack up sentences under USSG 2L1.2? No, no, no (we think). San Jose AFPD Lara Vinnard has put much thought into these issues. She notes Kozinski dodges due process concerns arising from this dubious immigration procedure, by reassuring us that “[t]he reinstatement order imposes no civil or criminal penalties, [and] creates no new obstacles to attacking the validity of the removal order . . . .” Id. at 1412. Let’s hold him to his word – a § 1326 prosecution certainly is a criminal penalty, Morales-Izquierdo now holds that reinstatement orders impose no criminal penalties, therefore reinstatements should not be serve as bases for illegal reentry cases.

Moreover, Kozinski emphasizes that reinstatement can happen after involuntary or voluntary departure.
Id. at 1408 & n.14. A voluntary departure, however, cannot be a basis for illegal reentry prosecution. United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 & n.1 (9th Cir. 2004). By logical extension a reinstatement should not be permitted to be used for illegal reentry prosecutions. We’ll be litigating this, and soon: recent A-files have contained INS agent entries referring re-entered aliens to IJ’s, instead of reinstatement procedures, “because of a recent Ninth Circuit decision.” With that decision now reversed, anticipate more § 1326 cases resting on this unfair immigration procedure.

For Further Reading: Some thought that when the Ninth went to the 15-judge en banc panels in 2006, it would chill en banc calls. Hasn’t worked out that way. In 2006, there were 25 en banc orders – the highest in decades. See article here. There were nine orders in roughly one month – all in criminal or habeas cases. Id.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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