9th Circuit Reverses Illegal Reentry Conviction Based On Due Process And Retroactivity Principles

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

9th Circuit reverses illegal reentry conviction based on due process and retroactivity principles
Immigrants' Rights Update, Vol. 17, No. 7, November 24, 2003

The U.S. Court of Appeals for the Ninth Circuit has overturned the conviction for unlawful reentry following deportation of a lawful permanent resident, finding that the deportation on which the conviction was based violated due process because the immigration judge failed to advise him of his appeal rights and possible eligibility for relief. The court found two bases on which the defendant was prejudiced by the due process violation: (1) that he could have argued that the retroactive application of the expanded definition of "aggravated felony" enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to his pre-IIRIRA conviction violated due process; and (2) that despite the IIRIRA's repeal of section 212(c) of the Immigration and Nationality Act, he was eligible for a waiver under that provision.

The defendant in this case, Isidro Ubaldo-Figueroa, is a Mexican national who came to the United States in 1985 at the age of 14 years. He became an LPR in 1992, through the Special Agricultural Worker program of the Immigration Reform and Control Act of 1986.

In 1993 he pled guilty to one count of attempted first degree burglary of a dwelling, for which he was sentenced to three months of home confinement and three years' probation. The record in the most recent case contains evidence that Ubaldo-Figueroa pled guilty in reliance on the fact that this conviction did not make him deportable under immigration law, as it existed at that time. In 1995, the court revoked Ubaldo-Figueroa's probation and he was sentenced to two years in state prison.

Section 321 of the IIRIRA (enacted in 1996) expanded the definition of "aggravated felony" to include burglary offenses for which a term of incarceration for at least one year is imposed. Section 321 expressly provides that the expanded definition applies "regardless of whether the conviction was entered before, on, or after the date of enactment" of the new definition. In 1998, the Immigration and Naturalization Service initiated removal proceedings against Ubaldo-Figueroa, charging him with being deportable for having been convicted of an "aggravated felony."

At his removal hearing, Ubaldo-Figueroa was represented by counsel. The immigration judge did not advise him that he might be eligible for a waiver under INA sec. 212(c), and the IJ in fact stated that he had concluded that there was no relief for which Ubaldo-Figueroa was eligible. The IJ issued a removal order and asked Ubaldo-Figueroa's counsel whether he reserved appeal, to which the counsel replied, "No." However, this discussion took place only in English, and no advisal of the right to appeal was provided to Ubaldo-Figueroa in Spanish. He did not appeal and was deported to Mexico.

In June 2000, Ubaldo-Figueroa was arrested by the INS and subsequently charged with two counts of being found in the United States after deportation, in violation of 8 USC sec. 1326. In his criminal case, he moved to dismiss his indictment, collaterally attacking the 1998 removal proceedings on due process grounds. The district court found that his due process rights had been violated because the removal proceedings were not translated into Spanish and Ubaldo-Figueroa was not advised of the grounds of deportability he was charged with, possible eligibility for relief, or the right to appeal the IJ decision. However, the court concluded that these errors were harmless, finding they could not have affected the outcome of the removal proceedings. Ubaldo-Figueroa was convicted, and he appealed the case to the Ninth Circuit.

On appeal, the Ninth Circuit affirmed the district court's holding that the IJ's failure to inform Ubaldo-Figueroa of his appeal rights and his possible eligibility for relief violated due process. The appellate court reversed the district court's conclusion that the errors were harmless, finding two "plausible legal challenges" to removal that Ubaldo-Figueroa could have pursued had he been properly advised.

First, the court found that Ubaldo-Figueroa presented a plausible argument that IIRIRA sec. 321's explicitly retroactive reach violates due process. The court stated that "[t]he Due Process Clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the 'retroactive application [of the statute] is so harsh and oppressive as to transgress the constitutional limitation," quoting United States v. Carlton, 512 U.S. 26, 30 (1994). In finding that the explicit retroactive application of sec. 321 raises serious due process concerns, the court noted the absence of any time limit on the retroactive reach of the statute, the lack of any explanation in the legislative record for this sweeping reach, and the harsh consequences of the application of the statute to lawful permanent residents who pled guilty to crimes that at the time were not a basis for deportation. The court concluded that Ubaldo-Figueroa was prejudiced by the lack of advisals at his removal hearing because he could otherwise have pursued this challenge to his removal.

The court's second ground for finding that Ubaldo-Figueroa was prejudiced by the defects in his removal proceedings is that he could otherwise have pursued relief under former INA sec. 212(c). Even though the IIRIRA repealed sec. 212(c), under INS v. St. Cyr, 533 U.S. 289 (2001), this relief remains available to certain immigrants whose removal proceedings are based on convictions entered prior to the enactment of the IIRIRA. In this case, the government argued that Ubaldo-Figueroa was not eligible for 212(c) relief because he was not eligible for this relief at the time he pled guilty, since at that time the conviction did not make him deportable. However, in United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003), the court rejected this argument, holding that individuals who were not deportable at the time they pled guilty, but who became deportable after their convictions were reclassified as aggravated felonies pursuant to IIRIRA sec. 321, are eligible for 212(c) relief.

In this case, the district court had concluded that Ubaldo-Figueroa was not prejudiced because he did not present sufficient equities to be granted a 212(c) waiver. The appellate court reversed this conclusion, finding that he presented substantial equities, including a history of gainful employment and substantial family ties in the U.S., including a U.S. citizen wife and children. The court thus concluded that the fact that Ubaldo-Figueroa could have pursued 212(c) relief is a second basis for finding prejudice.

Because Ubaldo-Figueroa was prejudiced by the due process violations that took place at his removal proceedings, the court reversed his convictions.

United States v. Ubaldo-Figueroa, No. 01-50376 (9th Cir. Oct. 17, 2003).