1326, the primary criminal immigration statute.

Sunday, November 3rd, 2013
By: Jonathan MontagJ.D.

An interesting aspect of immigration law consumes a huge amount of judicial resources as well as filling the federal prisons. It is 1326 jurisprudence. “1326″ involves prosecuting deported aliens for illegal reentry after deportation under 8 U.S.C. § 1326. This is the same statute as INA § 276. Though part of the Immigration and Nationality Act, 8 U.S.C. § 1326 is a criminal statute. Criminal defense attorneys (and not immigration attorneys) and the federal courts (not immigration courts) handle them. Because the punishments are quite severe for illegal reentry for re-entrants who have been convicted of certain crimes, there is a lot of litigation surrounding the statute. Litigation centers on questions like:

1. Did the person re-enter illegally?
2. Did the person re-enter knowingly?
3. Were the person’s underlying crimes the kind that merit harsher punishments?
4. Was the sentence unduly harsh considering the circumstances (like a parent coming back to be with her children)?

There is a fifth reason, one that consumes the most judicial resources, was the underlying removal order fair? Questions here are:

1. Did the re-entrant appeal his or her removal order?
2. Did the immigration judge who ordered removal explain the re-entrant’s right to appeal and was the re-entrant provided an opportunity to appeal?
3. Was the hearing fair and in comportment with the re-entrant’s rights.

These three issues are codified at 8 U.S.C. § 1326(d).

The third issue is heavily litigated. Fairness often centers on whether the immigration judge conducting the removal proceeding informed the re-entrant of relief from removal available to him or her. This duty is imposed by regulation.

As even the most casual reader of this blog is well-aware, much of the law in removal proceedings is unclear or in flux. Every week some appellate case comes out that either changes the law or puts to rest long-circulating arguments that a change is necessary because the current interpretation is wrong. So, what happens if a re-entrant, at the removal hearing that led to the removal that he is on trial for re-entering from, was not informed of a defense or a form of relief from removal that, at the time of the trial, he was not eligible for based on the then-current state of the law, but which after the removal order was entered and the re-entrant deported, became available to the re-entrant? Was the initial removal hearing fair when the immigration judge was wrong about what the law was and had he known better, the re-entrant could have beaten the removal case? This could occur if the law ended up, after appellate consideration, being such that the person was not even removable, i.e., the higher courts concluded that what was believed to be a crime or conduct that would make one removable actually was not a removable offense. It could also occur if a higher court concluded that relief from removal was actually available, though at the time of the hearing the prevailing wisdom was that relief was not available.

Before attempting to answer, it is important to keep in mind a legal fiction, an axiom in appellate law – when the court of appeals rules on the meaning of the law, it is (usually) considered as if that is always what the law meant.

The answer from the Ninth Circuit Court of Appeals as to whether a subsequent change in law means the underlying removal order was unfair is that the underlying removal order was fair. In an en banc case, United States v. Lopez–Velasquez, the Ninth Circuit held that “an IJ’s duty is limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing. While there may be narrow exceptions where an IJ has a duty to inform an alien of relief for which the alien will become eligible imminently, or where
subsequent precedent renders a deportation order invalid, those circumstances are not presented here.”

What are the limited circumstances. The decision mentions a case, United States v. Leon-Paz, which is notable most for its  incomprehensibility as discussed here. The difficulty in putting one’s mind around the distinctions made in Leon-Paz foretold what would happen to the case, it would be ignored. Even when cited in Lopez-Velasquez, no effort was made to clarify it or the situation when it would still control – other than to say it exists as a narrow exception.

Another panel, in the case, United States v. Vidal-Mendoza  took a more hardy stab at explaining how to distinguish Leon-Paz from other cases where when the 9th Circuit explains what the law means and the meaning benefits the alien, but the new meaning does not help the already-deported alien. Here is how the Vidal-Mendoza court explained the distinction:

Leon–Paz also involved an alien’s collateral challenge to his removal order on the ground that the IJ failed to inform him of his “apparent eligibility” for discretionary relief under § 212(c).  At the time of his removal hearing, Congress had changed the law to limit the availability of § 212(c) relief for aliens convicted of aggravated felonies, but we had not yet weighed in on whether these statutory changes were applicable retroactively to aliens like Leon–Paz. See id. at 1006–07. Shortly after Leon–Paz’s removal hearing, the Supreme Court held that these changes applied prospectively only. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); see also Magana–Pizano v. INS, 200 F.3d 603, 611 (9th Cir.1999). St. Cyr made clear that the statutory changes regarding § 212(c) did not apply to Leon–Paz, and that he had been apparently eligible for such relief at the time of his removal hearing. See Leon–Paz, 340 F.3d at 1006. Accordingly, we determined that in these “narrow circumstances,” subsequent precedent required us to conclude that the IJ committed an error of law by failing to inform Leon–Paz of his apparent eligibility for relief. Lopez–Velasquez, 629 F.3d at 899; see also Ubaldo–Figueroa, 364 F.3d at 1050–51 (applying St. Cyr to hold that an IJ failed to inform an alien of his “apparent eligibility” for § 212(c) relief).

This narrow exception “where subsequent precedent renders a deportation order invalid” was not present in Lopez–Velasquez. 629 F.3d at 895. As described earlier, the post-removal precedent in Lopez–Velasquez did not make clear that the alien was apparently eligible for relief at the time of his removal proceeding; it was not analogous to the post-removal precedent in Leon–Paz, for example, which held that a statutory change applied prospectively only. Rather, the post-removal precedent in Lopez–Velasquez created a new, previously unavailable, possibility of relief by making a “deviation” from “longstanding Ninth Circuit and BIA precedent.” See id. at 898. Because this post-removal precedent created such a change in the law, we saw no basis for Lopez–Velasquez’s claim that he had apparent eligibility for relief at the time of the hearing and we denied his collateral challenge to his removal order. See id. at 901.

In the middle of this exegesis, the Vidal-Mendoza court dropped a footnote, Footnote 6:

 Because only the federal courts, and not the BIA, have the authority to determine a “question of statutory retroactivity,” Ledezma–Galicia v. Holder, 636 F.3d 1059, 1067 (9th Cir.2010), the IJ’s duty to inform an alien of a “reasonable possibility” of the continued availability of § 212(c) relief was not eliminated by the BIA’s conclusion on this issue, see In re Soriano, 21 I. & N. Dec. 516, 519 (BIA 1996).

So what is the distinction? Is it that the decisions in Leon-Paz were specifically about retroactivity and not just changing the effect of a statute? Is it that the Ninth Circuit had never ruled on the issues in the case before, so there was no change in interpretation, but rather a void that the immigration judge should not have filled with mere binding agency interpretation? Is it some other casuistry gleanable from reading Leon-Paz, such as that changes in the law both made Mr. Leon-Paz deportable and ineligible for relief rather than just ineligible for relief (a way Leon-Paz itself distinguished itself)?  I am not sure. I guess the saving grace is that Lopez-Velasquez could have simply killed Leon-Paz, as Lopez-Velasquez was an en banc decision, but did not. It thus provides criminal defense attorneys the opportunity to wrestle with it and use it as a counterpoint to Lopez-Velasquez and its progeny, like Vidal-Mendoza.

As for the axiom that when a court of appeals makes a holding about the meaning of a statute, that was what it always was, in this context, discussing the immigration judge’s duty to advise about relief, the axiom does not survive in the 1326 context.

Having made this bed, the Ninth Circuit must sleep in it. In a recent Ninth Circuit case, United States v. Gomez,  the Court of Appeals concluded that criminal statute that rendered an alien ineligible for relief from removal in fact did not make the alien ineligible for relief from removal. The issue here was whether the lack of advice as to potential relief should void the removal order that underlay the illegal reentry charge. It also did not make him susceptible to a stiffer penalty because of the nature of the crime that led to his removal.The rule that the change in law does not cure the fact that he entered illegally after a prior deportation was applied so Mr. Gomez was indeed guilty of illegal entry. However, because the crime is no longer considered one of a serious nature to give him more time in prison, he could not be sentenced to more time based on the nature of the crime.

Interestingly, the Gomez court found that Mr. Gomez’s removal hearing was unfair because he was not given an opportunity to appeal and he did not knowingly waive his right to a full removal hearing. However, this did not matter because the 9th Circuit has held that not only must there be unfairness, but there must also be prejudice. Mr. Gomez asserted that he was eligible for voluntary departure, a form of relief in immigration court proceedings, and he could have appealed the denial of voluntary departure. The Court of Appeals concluded that he was not eligible for voluntary departure as the law regarding his crime was interpreted at the time of his removal hearing, and thus he was not prejudiced by being deprived of the opportunity to appeal.

The prejudice element is not new. As time has gone by, it has been found that all kinds of deprivations of rights at removal hearings were “alright” as long as there was no prejudice.

United States v. Arce Hernandez 1998: Alien not given opportunity to seek relief but he was not plausibly entitled to it. [This case is about plausible eligibility for a 212(h) waiver, but based on the facts presented it seems the decision is misguided as Mr. Arce Hernandez did not need a waiver.]

United States v. Arrieta, 2000: Failure to advise of the right of appeal.

United States v. Ramos, 2009: Alien deprived of a removal hearing including the right to counsel, to see a judge, to examine evidence, to call witnesses, and to seek relief. He also waived his right to appeal.

There are tons of other cases dealing with prejudice. Ramos simply points out that there does not seem to be any kind of deprivation of rights that could void a hearing where there is no prejudice.

As any deprivation, even being deprived of a hearing en toto still requires that the re-entrant show prejudice, one might be surprised that immigration officers and immigration judges show any fastidiousness to due process, statutory, and regulatory rights at all when an alien who is clearly removable and without relief has no recourse to a remedy no matter what deprivations occurred in the removal process.

One final note. At first blush some might feel that there is something wrong with the law being that a removal proceeding that leads to an illegal reentry charge is a valid basis to find an illegal reentry if the basis for removability or lack of relief was correctly assessed at the time of removal even though subsequently the assessment was deemed incorrect. This rule, that the law at the time of the hearing controls that hearing, benefits people who have been in removal proceedings and prevailed – either were found not to be removable or got relief from removal. The contrary rule could lead to this perverse result: Suppose an alien was found not removable under then-existing law and proceedings were terminated. Then, Congress makes the conduct explicitly removable or an appellate court concludes that the conduct of the alien that led to removal proceedings was indeed removable conduct. Or, similarly, suppose an alien is granted relief from removal and then the appellate courts or Congress decide that the relief was not or should not be available. Without the rule, the decision would not be final and Immigration and Customs Enforcement could seek to reopen proceedings based on the change of law. Foreigners who were in removal proceedings who thought the long nightmare was behind them would always face the specter of reopening.Now, that would be awful. Posted November 3, 2013.


 

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