Case:0-cr-000-VRW Document Filed0/0/0 Page of BARRY J. PORTMAN Federal Public Defender JODI LINKER Assistant Federal Public Defender th Floor Federal Building 0 Golden Gate Avenue San Francisco, CA 0 Telephone: ( -00 Counsel for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 0 0 UNITED STATES OF AMERICA, Plaintiff, v. Defendant. No. CR-0-0 VRW DEFENDANT S MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS INDICTMENT DUE TO UNLAWFUL DEPORTATION Hearing Date: July, 00 Time: :00 pm Court: Hon. Vaughn R. Walker
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 0 TABLE OF CONTENTS I. INTRODUCTION... II. STATEMENT OF FACTS... III. ARGUMENT... A. MR. WAS DENIED DUE PROCESS IN HIS DEPORTATION PROCEEDING BECAUSE THE IMMIGRATION SERVICE FAILED TO ADVISE HIM OF HIS ELIGIBILITY FOR RELIEF, BY WHICH HE WAS SUBSTANTIALLY PREJUDICED, RESULTING IN A CONSTITUTIONALLY FLAWED DEPORTATION ORDER.... ENTRY OF THE DEPORTATION ORDER AGAINST MR. ORTIZ- VALENCIA WAS FUNDAMENTALLY UNFAIR... a. Mr. Due Process Rights Were Violated by the Defects in the Underlying Deportation Proceeding Because He Was Eligible for Relief from Deportation under INA Section (a and Was Not Advised of this Opportunity for Relief... b. Mr. Suffered Prejudice as a Result of the Defect in his Removal.... MR. HAS EXHAUSTED ALL ADMINISTRATIVE REMEDIES AND WAS DENIED THE OPPORTUNITY FOR JUDICIAL REVIEW... a. Mr. is Deemed to Have Exhausted his Administrative Remedies... b. Mr. Was Deprived of An Opportunity for Judicial Review... B. THE GOVERNMENT CANNOT USE ANY SUBSEQUENT DEPORTATION OF MR. BECAUSE IT WOULD BE SIMILARLY DEFECTIVE... IV. CONCLUSION... i
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 0 TABLE OF AUTHORITIES FEDERAL CASES Duran v. INS, F.d (th Cir.... United States v. Andrade-Partida, 0 F. Supp. d 0 (N.D. Cal. 000..., 0, United States v. Arce-Hernandez, F.d (th Cir.... United States v. Arias-Ordonez, F.d (th Cir. 00... United States v. Arrieta, F.d 0 (th Cir. 000..., 0,, United States v. Chipres-Madriz, 00 WL (N.D.Cal. 00... United States v. Garcia-Martinez, F.d (th Cir. 000... United States v. Gonzalez-Valerio, F.d 0 (th Cir. 00... 0, United States v. Lopez-Hernandez, 00 WL 0 (N.D.Cal. 00... United States v. Lopez-Menera, F. Supp. d 0 (N.D. Cal. 00..., United States v. Mendoza-Lopez, U.S. (..., 0,, United States v. Muro-Inclan, F.d 0 (th Cir. 00...,, United States v. Pallares-Galan, F.d 0 (th Cir. 00...,, United States v. Ubaldo-Figueroa, F.d 0 (th Cir. 00... 0,,, U.S. v. Case No.0-0 VRW ii
Document Filed0/0/0 Page of FEDERAL STATUTES C.F.R..(a (... U.S.C. (h (..., U.S.C....,, U.S.C.... passim MISCELLANEOUS Brent S. Wible, The Strange Afterlife of Section (c Relief: Collateral Attacks on Deportation Orders in Prosecutions for Illegal Reentry After St. Cyr,... 0 0 U.S. v. Case No.0-0 VRW iii
Case:0-cr-000-VRW Document Filed0/0/0 Page of BARRY J. PORTMAN Federal Public Defender JODI LINKER Assistant Federal Public Defender th Floor Federal Building 0 Golden Gate Avenue San Francisco, CA 0 Telephone: ( -00 Counsel for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 0 UNITED STATES OF AMERICA, Plaintiff, v. ANDRES Defendant. No. CR-0-0 VRW DEFENDANT S MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS INDICTMENT DUE TO UNLAWFUL DEPORTATION Hearing Date: July, 00 Time: :00 pm Court: Hon. Vaughn R. Walker TO: UNITED STATES OF AMERICA, PLAINTIFF; AND JOSEPH RUSSONIELLO, UNITED STATES ATTORNEY, NORTHERN DISTRICT OF CALIFORNIA; AND KATHRYN HAUN, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on July, 00, at :00 p.m., before the Honorable 0 Vaughn R. Walker, defendant Andres will move this Court to dismiss the indictment on the grounds that as a matter of law, the government cannot establish that Mr. was previously deported within the meaning of U.S.C. because the deportation proceedings giving rise to the order of deportation were fundamentally flawed. This motion is based on the instant notice of motion, motion, and memorandum of points and authorities, supporting declarations, all other applicable constitutional, statutory, and case authority, and such evidence and argument as may be presented at the hearing of this motion. U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Andres is charged in a one count indictment with a violation of U.S.C., illegal reentry after deportation. The indictment against Mr. should be dismissed on the grounds that his prior deportations, as a matter of law, cannot constitute the prior lawful deportation order necessary for the government to establish the deportation element of a violation of U.S.C.. At the time of his deportation proceedings, Mr. was eligible for relief from 0 deportation, specifically, he was eligible to adjust his status under Section (a of the Immigration and Nationality Act with a commonly granted form of relief called a (h waiver. Nonetheless, the immigration judge ordered Mr. deported without notifying him of his right to seek relief from deportation. The immigration official overtly misadvised Mr. that he had no possibility of relief from deportation, ordered him removed, and deported him to Mexico. Mr. should not have been separated from his family and removed to Mexico as he was a green card holder, had a visa immediately available, and his removal would cause extreme hardship to his family. Through this error, the immigration service denied Mr. due process of 0 law, resulting in his unconstitutional deportation. There is no question that Mr. suffered prejudice from this error because he was in fact eligible for relief from deportation and was nonetheless removed to Mexico. Under these circumstances, the underlying deportation order cannot serve as a predicate for a prosecution for illegal reentry, thus, the indictment must be dismissed. II. STATEMENT OF FACTS Mr. was born in Michoacan, Mexico in. Declaration of Andres (hereinafter Decl.,, attached to the Declaration of Jodi Linker (hereinafter Linker Decl. at Ex. A. When he was just nineteen years old (around
Case:0-cr-000-VRW Document Filed0/0/0 Page of, he moved to the United States in order to make money to help support his family in Mexico. Id.,. He worked diligently while he was in the United States. He worked picking grapes in the fields in Healdsburg for three years, as a farm worker in the fields in Oregon for three years, and at a nursery in Oregon for five years. Id.,. Most recently, he worked delivering fish to stores and restaurants throughout Northern California for approximately fifteen years until he was arrested on the instant offense. Id. In, Mr. married his then-girlfriend, Elida Cruz. Id.,. Ms. Cruz was a United States Citizen. Birth Certificate of Elida Cruz, attached to the Declaration of Jodi Linker as Ex. D. On May 0,, Mr. became a lawful permanent resident of 0 the United States (a.k.a. green-card holder. Immigrant Visa and Alien Registration, attached to the Linker Decl. as Ex. E. The couple had three children together: Andres Jr. (born, Michael (born, and Rosemary (born. in the United States and are citizens of the United States. Id. Decl.,. All three were born In November, Mr. was charged in Oregon with three felonies: one count of rape in violation of Oregon statute section., and two counts of sexual abuse in violation of Oregon statute section.. Oregon Indictment, attached to the Linker Decl. as Ex. F. He was convicted after a jury trial on all three counts and was sentenced on October, to a sentence of imprisonment not to exceed twenty years. Sentence after Trial and Conviction, attached to the Linker Decl. as Ex. G. 0 While Mr. was still in custody on that conviction, on August,, the immigration service issued an Order to Show Cause and Notice of Hearing alleging that Mr. was subject to deportation under Section (a( of the Immigration and Nationality Act (hereinafter INA for having been convicted of a crime involving moral turpitude committed within five years of entry and confined in a prison for a year or more. Order to Show Cause and Notice of Hearing (hereinafter OSC, attached to the Linker Decl. as Ex. H. On August,, he appeared before Immigration Judge ( IJ Daniel Kahn for his U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of deportation proceeding. Transcript of Hearing, August,, attached to the Linker Decl. as Ex I. At that time, he informed the IJ that he needed more time to retain counsel, so the IJ continued the hearing to provide him time to do so. Id. An amendment to the OSC was issued on August,. Motion and Order Amending Factual Allegation(s, attached to the Linker Decl. as Ex. H. On October,, Mr. appeared again before IJ Kahn. Transcript of Hearing, October, (hereinafter October th Hearing, attached to the Linker Decl. as Ex J. The hearing was held at the Eastern Oregon Correctional Institution, 0 Pendelton, Oregon, where Mr. Bates AOV-0. At the hearing, Mr. was being held on his Oregon conviction. Id. at informed the Judge that his wife had been trying to retain an attorney for him, but she had not been able to do so. Id. at AOV-00-. The IJ did not give Mr. the option of having more time to retain a lawyer and simply went forward with the removal hearing without counsel for Mr. Id. The IJ questioned Mr. AOV-00-0. Mr. directly about the allegations in the OSC. Id. at confirmed that he was a citizen of Mexico, not the United States; that he had a visa to be in the United States lawfully; and that he had been convicted of rape (although he denied that he was in fact guilty of that offense even though he had been convicted. Id. The IJ then said: Well sir, I have no alternative but to order your deportation to 0 Mexico. Id. at AOV-000. That was entirely incorrect since Mr. for relief from deportation. was eligible The IJ then continued questioning Mr. as follows: Q.... Tell me this, are you still married. A. Yes I have a wife and my children they re from here and my children have been born here. Q. How old are your children? A. The oldest is seven years old. Q. And is your..is your wife the mother of Roseann Cruz? A. Yes. Q. Did your wife testify against you in Court? A. No she was in my favor. Q. Who was against you? U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 0 A. The boyfriend of hers was the one that made up all this case. Q. How old is Roseann now? A. I m not sure exactly but I think around and years old. Q. I see. Well since this happened between and which is six years ago then she must have been about at the time. Anyway getting..sir if you think my decision is incorrect you may appeal to the Board of Immigration Appeals in Falls Church, Virginia, but if you think my decision is correct you will be..and if you accept it you may..no I m sorry if you think my decision is correct you may accept it as final and you will be deported to Mexico as soon as the people in Oregon are ready to release you. A. They haven t given me an opportunity I have been trying to contact my wife and she has letter that has been from a notary republic... Q. Sir if deportation should be necessary would Mexico be your choice? A. Yes, I m from there. Q. What do you want to do? Do you want to appeal my decision or do you want to accept it as final? A. Which..which decision? Q. Have you decided whether you wish to reserve appeal of my decision or whether you want to accept it as final? A. I want the appeal. JUDGE TO MR. GUSTAFSON Q. Mr. Gustafson would you please give him the forms. JUDGE TO MR. ORTIZ Q. To Mr Ortiz your appeal must be filed within ten days to the Executive Office for Immigration Review in Seattle, Washington. If it is not timely filed then I ll deem that you decided not to appeal and my decision will be final. Do you understand? A. Final, final how? Q. That means if you do not appeal them my order of deportation will go into effect. JUDGE TO MR. HOPKINS Q. Mr. Hopkins does the Service wish to appeal? A. No appeal. Q. Then this hearing is closed. Id. at AOV-000-0. Although Mr. was eligible for relief from deportation, the IJ ordered Mr. deported to Mexico without ever advising him of that right. Order of the Immigration Judge (Bates AOV-00, attached to the Linker Decl. as Ex. K. Mr. filed a cursory notice of appeal on October,. Notice of Appeal to the Board of Immigration Appeals, attached to the Linker Decl. as Ex. L. In his Notice of Appeal, he stated the following: I have been in the United States since or a total of years. My family is here. I have a wife and children who are all United States citizens. I have maintained continuous employment since being in the United States and I have a job waiting for me when I am released from here. U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page0 of Id. of Mr. On December,, the immigration service filed a Motion for Summary Dismissal appeal. Motion for Summary Dismissal, attached to the Linker Decl. as Ex. M. In that Motion, the immigration service acknowledged that Mr. had a U.S. Citizen spouse, but nonetheless wrongly asserted that there was no apparent relief from deportation. Id. at Bates AOV-00. The immigration service argued that the claim was frivolous and therefore should be summarily dismissed. Id. at Bates AOV-00. Sometime later, the appeal was dismissed. On August, and September,, Mr. wrote letters to the 0 immigration service requesting that he be permitted to remain in the United States so that he could be with his family. Letters from Mr. to the immigration service, attached to the Linker Decl. as Exhibit N. He never received a response to those letters and was subsequently deported from the United States to Mexico. The Order of the IJ from the October, flawed proceeding serves as the basis for his deportations from the United States. On January, 00, immigration agents came to Mr. home in Santa 0 Rosa, California and arrested him on the instant charge. The instant indictment was filed the following day. The IJ s Order of deportation from the flawed October, proceeding serves as the basis for his removal and the predicate for his instant prosecution under U.S.C. section. At no point before, during or after the immigration proceeding was Mr. informed of his eligibility for any relief from deportation. To the contrary, he was affirmatively mis-advised that he was not eligible for any type of relief. Having been misadvised by the IJ of his eligibility for relief, Mr. Ortiz-Valenzia s deportation proceeding was clearly flawed. U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of III. ARGUMENT 0 0 A. MR. WAS DENIED DUE PROCESS IN HIS DEPORTATION PROCEEDING BECAUSE THE IMMIGRATION SERVICE FAILED TO ADVISE HIM OF HIS ELIGIBILITY FOR RELIEF, BY WHICH HE WAS SUBSTANTIALLY PREJUDICED, RESULTING IN A CONSTITUTIONALLY FLAWED DEPORTATION ORDER In general, in order to convict a defendant of violating U.S.C., illegal reentry after deportation, the government must prove the following three elements beyond a reasonable doubt: the defendant is an alien; the defendant was previously deported from the United States; and the defendant was found in the United States without the consent of the federal government. U.S.C. (a. As such, a defendant s prior deportation is a predicate element for a prosecution under U.S.C.. The United States Supreme Court has long established that a prior deportation order cannot serve as a predicate for a subsequent prosecution under U.S.C. when the deportation proceedings giving rise to the order were fundamentally flawed. See United States v. Mendoza-Lopez, U.S., (. The Supreme Court s holding is rooted in the Due Process Clause of the Constitution: if U.S.C. envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with constitutional requirement of due process. Id. at (emphasis in original. Accordingly, the Court held that a defendant in a prosecution pursuant to U.S.C. must be permitted to challenge the lawfulness of the prior deportation. Id. In Mendoza-Lopez, the defendants were arrested and deported after a group hearing at which they purportedly waived their rights to apply for suspension of deportation and to appeal. Id. at 0. They returned to this country, were once again arrested, and the government charged them with a violation of U.S.C.. Id. at. The underlying court found, and the Supreme Court accepted as true, that the Immigration Judge failed to adequately explain the defendants right to suspension of deportation or their right to appeal. Id. at 0. The Supreme U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 0 Court then held that because the Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by [defendants], and failed to advise [defendants] properly of their eligibility to apply for suspension of deportation... the violation of [defendants ] rights... amounted to a complete deprivation of judicial review. Id. at. Thus, the government would not be permitted to rely on that prior deportation order as reliable proof of an element of the prosecution [b]ecause [defendants] were deprived of their rights to appeal and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them.... Id. at,. The dismissal of the indictments against the defendants was required. Id. at. In response to the holding of Mendoza-Lopez, Congress amended U.S.C. to explicitly provide for a three part test for when a defendant can collaterally challenge a prior deportation in a prosecution under section : In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a( of this section or subsection (b of this section unless the alien demonstrates that-- ( the alien exhausted any administrative remedies that may have been available to seek relief against the order; ( the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and ( the entry of the order was fundamentally unfair. U.S.C. (d. To prevail on a collateral attack to a prior deportation on grounds that the deportation proceedings were fundamentally flawed, the defendant must meet each prong of the three-part test. See United States v. Pallares-Galan, F.d 0, 0 (th Cir. 00 (citing U.S.C. (d. If a defendant succeeds in this three part test to collaterally attack the predicate deportation order, the indictment against him must be dismissed. See United States v. Chipres- Madriz, 00 WL (N.D.Cal. 00; United States v. Lopez-Menera, F.Supp.d 0, 0 (N.D. Cal. 00; United States v. Lopez-Hernandez, 00 WL 0 (N.D.Cal. 00; U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 0 United States v. Andrade-Partida, 0 F.Supp.d 0, (N.D. Cal. 000.. ENTRY OF THE DEPORTATION ORDER AGAINST MR. ORTIZ- VALENCIA WAS FUNDAMENTALLY UNFAIR Mr. collateral challenge to his deportation order meets each prong of this three-part test. Because the first and second prongs are informed by the third, the below analysis begins with the third prong, i.e., that the entry of the order was fundamentally unfair. An underlying removal order is fundamentally unfair if ( an alien s due process rights were violated by defects in the underlying deportation proceeding and ( he suffered prejudice as a result of the defects. Id. (citing United States v. Garcia-Martinez, F.d, 0 (th Cir. 000. As detailed below, Mr. was eligible for relief from deportation. Specifically, he was entitled to seek an adjustment of his status under INA (a with a waiver of his ground for inadmissability under INA (h. This common form of relief from deportation is usually referred to as simply a (h waiver. The Immigration Judge failed to advise Mr. of his eligibility for relief from deportation rendering the deportation proceeding fundamentally unfair. Had the immigration service properly advised Mr. of his eligibility for relief, it was more than plausible that he would have been granted relief and not deported back to Mexico. Accordingly, he suffered prejudice as a result of the defect in his immigration proceeding. a. Mr. Due Process Rights Were Violated by the Defects in the Underlying Deportation Proceeding Because He Was Eligible for Relief from Deportation under INA Section (a and Was Not Advised of this Opportunity for Relief During a deportation hearing, the requirement that an Immigration Judge inform an alien of any apparent eligibility for relief from deportation and give the alien the opportunity to pursue that form of relief is mandatory. See United States v. Arrieta, F.d 0, 0 (th Cir. 000 (quoting United States v. Arce-Hernandez, F.d, (th Cir.. An erroneous determination by an immigration official that the alien is statutorily ineligible for relief U.S. v. Ortiz-Valencia, Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of from deportation also constitutes a denial of due process. Failure of the immigration official to inform the defendant of his eligibility for a waiver of deportation in the underlying proceedings establishes a violation of due process in a collateral appeal in a case brought under U.S.C.. See Arrieta, F.d at 0. The failure of the immigration official to advise an alien of his eligibility for a waiver of deportation violates the alien s due process rights and amount[s] to a complete deprivation of judicial review of the determination. Mendoza-Lopez, U.S. at 0. Even if the alien s eligibility is not clearly disclosed in the record, the IJ has a duty to discuss discretionary relief with the alien so long as the record as a whole raises a reasonable possibility of eligibility of such relief. Andrade-Partida, 0 F.Supp.d at. 0 Here, Mr. was eligible to apply for an adjustment of status in conjunction 0 with an application for a discretionary waiver of the inadmissibility ground that resulted from his conviction. See Declaration of Marc Van Der Hout (hereinafter Van Der Hout Decl.,, attached to the Linker Decl. as Ex. B. Specifically, under then INA Section (a, codified at U.S.C. Section (a, an alien who was inspected and admitted or paroled into the United States may adjust his status to that of a lawful permanent resident if: ( the alien makes an application for such adjustment, ( the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and ( an immigrant visa is immediately available to him at the time his application is filed. U.S.C. Section (a (, attached to the Linker Decl. as Ex. C. An immigrant visa was immediately available to immediate relatives of United States citizens, defined as children, spouses, and parents of a United States citizens. See INA Section 0(a, codified at U.S.C. Section (a & Van Der Hout Decl,. A person with a conviction for a crime involving moral turpitude was not admissible for See United States v. Ubaldo-Figueroa, F.d 0, 0-0 (th Cir. 00 (an inaccurate statement that an alien is ineligible for any relief constitutes a breach of the immigration judge s ( IJ duty and a violation of due process; see also United States v. Gonzalez-Valerio, F.d 0, 0 (th Cir. 00 ( The duty of the IJ to inform an alien of his eligibility for relief is mandatory, and the failure to do so constitutes a violation of the alien s due process rights. U.S. v. Case No.0-0 VRW 0
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 permanent residency under INA Section (a unless an application for a waiver was granted. Such a waiver, available under INA Section (h, codified at U.S.C. Section (h, allows an Immigration Judge to waive deportation for any alien who is otherwise excludable who: (A is the spouse or child, including a minor unmarried adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or (B has a son or daughter who is a United States citizen or an alien lawfully admitted for permanent residence, shall, if otherwise admissible, be issued a visa and admitted to the United States for permanent residence ( if it shall be established to the satisfaction of the Attorney General that (A the alien s exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, or son or daughter of such alien, and (B the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States; and ( if the Attorney General, in his discretion and pursuant to such terms, conditions, and procedures as he may by regulations prescribe, has consented to the alien s applying or reapplying for a visa and for admission to the United States. U.S.C. (h (, attached to the Linker Decl., Ex. C. Thus, to qualify for a (h waiver, an applicant had to show that ( he is the spouse, child, or parent of a United States citizen or lawful permanent resident and ( his deportation would result in extreme hardship to his United States citizen or lawful permanent resident spouse, parent, or children. Here, there is no doubt that Mr. was eligible for relief from deportation under INA Section (a with a (h waiver. Van Der Hout Decl., &. There is similarly no doubt that the IJ failed to advise him of that eligibility. The IJ had a duty to advise 0 Mr. Ortiz-Valencai of his right to seek relief, yet he failed to do so. Had Mr. advised of the availability of this form of relief, he most certainly would have applied for it. been Decl.,. Because he had a U.S. citizen wife and children all of which the IJ was well aware-of he had an immediately available visa to him. See Van Der Hout Decl., &. Additionally, his conviction for a crime of moral turpitude only made him inadmissible if he was unable to get a waiver under (h a waiver for which he was eligible. Id.,. His conviction in no way rendered him ineligible for a (h waiver. Indeed, only those who have convictions of crimes of moral turpitude making them deportable are in need of (h waivers. U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of It was designed precisely for this situation: where a non-u.s. citizen has a criminal conviction making him deportable, but because of the hardship that will result for his U.S. citizen family members he is allowed to remain here lawfully. The IJ informed Mr. that he had no alternative but to deport him to 0 Mexico. That was not at all true. [T]he IJ did have an alternative: he should have advised Mr. that he was eligible to apply for permanent residency again and provided him an opportunity to apply for adjustment of status as the spouse of a United States citizen with a waiver under INA (h. Id. The law is clear that an IJ has a mandatory duty to accurately advise an alien of his eligibility for relief. See Mendoza-Lopez, U.S. at 0; Arrieta, F.d at 0; Gonzalez- Valerio, F.d at 0. Mr. was clearly eligible for a form of relief and the Immigration Judge utterly failed to advise him of that. Indeed, the Immigration Judge overtly mis-advised Mr. by stating that he had no alternative but to deport him to Mexico. The IJ s failure rendered the deportation proceeding fundamentally unfair and violated Mr. due process rights. 0 b. Mr. Suffered Prejudice as a Result of the Defect in his Removal To satisfy a showing of prejudice, an alien does not have to show that he actually would have been granted relief. Instead, he must only show that he had a plausible ground for relief from deportation. See Ubaldo-Figueroa, F.d at 00 (quoting Arrieta, F.d at 0. Although the Ninth Circuit has not defined the term plausible, this standard would seem to encompass borderline cases, perhaps even where the equities are in equipoise. Stated differently, it seems fair to interpret this standard as granting defendants in illegal entry cases the benefit of the doubt, even if they have a borderline claim of prejudice, as long as they establish that their deportation proceeding was procedurally deficient. Brent S. Wible, The Strange Afterlife of Section (c Relief: Collateral Attacks on Deportation Orders in Prosecutions for Illegal Reentry After St. Cyr, GEO. IMMIGR. L.J., (Summer 00. Thus, under applicable U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of law, Mr. need not show that he actually would have been granted relief, or even that there was a reasonable probability that he would have been granted relief. See United States v. Muro-Inclan, F.d 0, (th Cir. 00. A showing of plausible or possible granting of relief is sufficient. Here, there is no question that Mr. was prejudiced by the defect in his immigration proceeding: had the defect not occurred, he would have applied for and most likely received an adjustment of status under INA Section (a with a (h waiver allowing him to remain in the United States and not be deported to Mexico. Mr. Ortiz-Valenia need not show that he would have been guaranteed relief; it simply must be plausible that he could have done 0 so. Given Mr. circumstances at the time, there is no doubt that it was at least plausible that he would have been granted such a waiver. Under INA Section (a, Mr. was eligible for an adjustment of status if ( an immigrant visa was immediately available to him at the time his application is filed and ( he was eligible to receive an immigrant visa and was admissible to the United States for permanent residence. See INA Section (a, codified at U.S.C., Linker Decl., Ex. C & Van Der Hout Decl.,. It is more than plausible that he could have met each of these two prongs. First, an immigrant visa was immediately available to him because he was the spouse of a United States citizen. Van Der Hout Decl.,. Immigration expert Marc Van Der Hout 0 explains: At the time of his deportation hearing, Mr. was married to a United States citizen and accordingly, had he been advised of his eligibility for relief from deportation, could have had a visa petition filed by his wife and approved on his behalf and thereby, a visa immediately available. Id. Second, he was eligible to receive an immigrant visa and was admissible to the United States for permanent residence with a (h waiver. Van Der Hout Decl., &. As explained above, while his conviction made him deportable, a (h waiver made him U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of admissible to the United States. Id. In order to be granted a (h waiver he needed to show that his deportation from the United States would result in extreme hardship to his U.S. citizen family members. Mr. could have demonstrated that his U.S. Citizen wife and 0 three young U.S. citizen children would suffer extreme hardship if he were deported. To determine extreme hardship, the IJ would have weighed such factors such as the alien s age; the length of his residence in the United States; his family ties in the United States and abroad; his health; the economic and political conditions in the country to which he may be returned; his financial status, business, or occupation; and his immigration history. Van Der Hout Decl.,. Relevant factors, though not extreme in themselves, would be considered in the aggregate in determining whether extreme hardship exists. Id. Here, in, Mr. years, since. had been in the United States for approximately eleven Decl.,. He had a long and stable work history in the United States, working picking grapes in the fields in Healdsburg for three years, as a farm worker in the fields in Oregon for three years, and at a nursery in Oregon for five years. Id.,. In, he married a United States citizen, and therefore had a U.S. Citizen wife. Id.,. He had three young children, all of whom were United States citizens. Id. Specifically, at the time of his deportation proceeding, his son Andres Jr. was seven years old, his son Michael was five years old, and his daughter Rosemary was just two years old. Id. He also had a brother who was living lawfully in the United States, whom he saw regularly. Id.,. 0 Mr. was providing a substantial amount of income to his family, which they relied on to survive. Id.,. His wife was also working, and therefore, he was not only there for financial support, but also provided a great deal of invaluable emotional and noneconomic support to the family. Id., -. He had a deeply affection for his children and was absolutely distraught over the idea of being permanently separated from them. Id.,. He was the sole father figure to his children and thought it was very important for all of them to have a father in their lives. Id., 0. U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of 0 Prior to his incarceration, he had been extremely active in the lives of his children. Id., -. He would do all of the things necessary to care for a child, and did so out of love. Id. He would get the children ready in the morning, take them to the park to play, eat meals with them, and generally provide emotional support for them and his wife. Id. Because his wife was also at work, he took equal responsibility in raising the children. Id.,. It is certainly plausible that he could have established that his deportation would disrupt his family unity at its core. According to Mr. Van Der Hout, Had Mr. Ortiz Valencia been given that opportunity [to apply for the (h waiver], it is very possible that such an application would have been granted. Id.,. Mr. Van Der Hout states that controlling precedent established such eligibility and supported such grants of relief. Id. Moreover, Mr. Van Der Hout attests that he represented many non-citizens in deportation proceedings in the late 0s and early 0s (and subsequently who had serious convictions but were granted adjustment of status with a waiver under INA (h or other similar forms of discretionary relief. After considering Mr. specific circumstances, Mr. Van Der Hout concludes that had Mr. been given the opportunity to apply for a (h waiver as he should have been his application stood a very good chance of being granted, especially in light of the presence of the U.S. citizen children. Id.,. Mr. circumstances at the time of his deportation proceeding demonstrate 0 that it was more than plausible that he would have been granted a (h waiver had the immigration official informed him of his eligibility for relief. The IJ did not informed Mr. of his eligibility for any form of relief from deportation. That was plainly wrong. The failure of the immigration service to advise Mr. in his deportation. Had it not been for the defect in Mr. of his eligibility for relief resulted deportation proceeding, he would not have been separated from his family, creating extreme hardship for all of them. Mr. thus suffered substantial prejudice: he was eligible to adjust his status U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page0 of under INA section (a with a (h waiver and it is more than plausible that he would have received relief from deportation had he been properly advised.. MR. HAS EXHAUSTED ALL ADMINISTRATIVE REMEDIES AND WAS DENIED THE OPPORTUNITY FOR JUDICIAL REVIEW Now that Mr. has satisfied the third prong of (d by showing that the 0 0 entry of the deportation order was fundamentally unfair, he next turns to the first and second prongs of the analysis: ( the exhaustion of any administrative remedies that may have been available; and ( the deprivation of the opportunity for judicial review. a. Mr. is Deemed to Have Exhausted his Administrative Remedies Although U.S.C. (d( requires that an alien exhaust all administrative remedies before a collateral attack will succeed, the exhaustion requirement cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process. Ubaldo-Figueroa, F.d at 0 (citing United States v. Muro-Inclan, F.d 0, - (th Cir. 00. The Due Process Clause requires that an alien s waiver of his right to appeal a deportation order be considered and intelligent. See id at 0; see also Mendoza-Lopez, U.S. at. An alien who is not advised of his rights cannot make a considered and intelligent waiver, and is thus not subject to the exhaustion of administrative remedies requirement of U.S.C. (d. See Ubaldo-Figueroa, F.d at 0-00; Pallares, F.d at 0 ( Where the record contains an inference that the petitioner is eligible for relief from deportation, but the IJ fails to advise an alien of this possibility and give him an opportunity to develop the issue, we do not consider an alien s waiver of his right to appeal his deportation order to be considered and intelligent. (citing Muro-Inclan, F.d at (remaining citations omitted.. As such, under Ninth Circuit precedent, the undisputed failure of the IJ or any immigration official to correctly advise Mr. of his eligibility for a (h waiver and the affirmative statement that he was not eligible for any form of relief excuses Mr. from the administrative remedies exhaustion U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of requirement of his collateral attack under U.S.C. (d(. See Muro-Inclan, F.d at ; Lopez-Menera, F.Supp.d at 0. b. Mr. Was Deprived of An Opportunity for Judicial Review Because Mr. has a non-frivolous claim to a (h waiver, he was 0 similarly deprived of an opportunity for judicial review based on the defects in his immigration proceeding. Indeed, an immigration judge is obligated to advise an alien regarding apparent avenues for relief from deportation. See, e.g., Duran v. INS, F.d, - (th Cir. (citing C.F.R..(a (. When the official fails to so advise, the Ninth Circuit has held that aliens are deprived a meaningful opportunity for judicial review. See, e.g, Pallares-Galan, F.d at 0 ( For the same reasons [as those stated to find that Pallares waiver of appeal was procedurally defective] we hold that Pallares was deprived of a meaningful opportunity for judicial review ; see also Ubaldo-Figueroa, F.d at 00 (same; see also Andrade-Partida, 0 F. Supp d. at (finding that the IJ s failure to advise of section (c relief deprived the alien of judicial review. In this case, the defects in the immigration proceeding entirely deprived Mr. of the opportunity for judicial review. He was mis-advised of his rights, and thus had no basis for knowing that he had a legitimate basis to stay in this country. Mr. proceeding. thus meets this prong of a collateral attack on his deportation 0 B. THE GOVERNMENT CANNOT USE ANY SUBSEQUENT DEPORTATION OF MR. BECAUSE IT WOULD BE SIMILARLY DEFECTIVE In the indictment, the government alleges that Mr. was deported on two occasions: first on October, and then on February, 0. It is unclear how the government asserts those dates as several documents in Mr. A-file indicate that he was in custody on his Oregon conviction until February 0, and deported for the first time on February, 0. Regardless, any subsequent deportation of Mr. similarly flawed as Mr. would be would have still been eligible for (h relief and was never advised of such relief in any proceeding. Had the IJ not committed the error at the October U.S. v. Case No.0-0 VRW
Case:0-cr-000-VRW Document Filed0/0/0 Page of, hearing of failing to advise Mr. of his right to relief and overtly misadvising him that he had no rights to relief whatsoever, Mr. would not have been deported the first or second time, thus the due process violation from October, deportation proceeding taints any subsequent proceeding. See United States v. Arias-Ordonez, F.d (th Cir. 00. IV. CONCLUSION Mr. due process rights were violated through the deportation process: Mr. was eligible for an adjustment of status under INA Section (a with a 0 (h waiver since the record established that his wife was a U.S. citizen as were his three young children. The IJ, however, never mentioned this right to relief. Without this information, Mr. who was not represented by counsel, could not make a considered an intelligent decision about whether to apply for a Section (h waiver, and could not make a considered and intelligent decision about the basis for an appeal of the IJ s deportation order. 0 See Arrieta, F.d at 0. For the foregoing reasons, Mr. requests that this Court dismiss the indictment in the instant case. Dated: May 0, 00 Respectfully submitted, BARRY J. PORTMAN Federal Public Defender /s/ JODI LINKER Assistant Federal Public Defender respectfully U.S. v. Case No.0-0 VRW