Sunday, December 27, 2015

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

Steven Kalar, Federal Public Defender ND Cal. Website at


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