Illegal Re-Entry Conviction Undone by Due-Process Error

     SAN FRANCISCO (CN) – An immigrant’s indictment and conviction for illegal re-entry into the United States must be respectively dismissed and vacated because her due-process rights were violated, the Ninth Circuit ruled Wednesday.
     Xochitl Cisneros-Rodriguez, an undocumented immigrant from Mexico, was convicted in 2009 of violating California narcotics laws and was ordered removed in 2010 by U.S. Immigration and Customs Enforcement.
     Cisneros-Rodriguez was charged with possession of methamphetamine for sale after she reported the theft of her car. The perpetrator of the theft, Monalisa Rodriguez – who was convicted of larceny and served time in prison – threatened to hurt Cisneros-Rodriguez’s family if she did not “pay her back” by helping her sell methamphetamine.
     Both women were incarcerated at a correctional facility in Santa Clara County on narcotics charges, during which time Rodriguez continued to threaten Cisneros-Rodriguez with violence, both to extort money and to dissuade her from testifying against Rodriguez, according to the Circuit’s opinion.
     After Cisneros-Rodriguez was ordered removed in 2010, she was arrested again in 2011 when she entered the United States without permission. She was criminally charged with illegal reentry.
     In the district court, Cisneros-Rodriguez moved to dismiss her indictment on the ground that the ICE agent who handled her removal had violated her due process rights, and she filed an application in 2011 with U.S. Citizenship and Immigration Services for a U-visa, a form of hardship relief to victims of crimes who have suffered mental or physical abuse and are helpful to law enforcement officials in prosecuting or investigating the crime.
     A federal judge denied Cisneros-Rodriguez’s motion, and after she was convicted for illegal reentry her U-visa application was denied.
     The Ninth Circuit reversed the court’s judgment in its 43-page opinion, finding that Cisneros-Rodriguez’s due process rights had been violated when an ICE agent told her that an attorney could not help her with her drug charges, leading her to waive her right to counsel during her removal proceedings.
     Writing for the three-judge panel, Circuit Judge William Fletcher said that “the district judge did not make a factual finding that Agent Linares had told Cisneros that an attorney could not help her” – rather, “he simply assumed that Linares had done so.”
     But “Linares’s advice was not accurate, and had the effect of misleading Cisneros-Rodriguez,” Fletcher said.
     “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,'” he said.
     Fletcher said that the Circuit finds it appropriate to decide the factual issue of Cisneros-Rodriguez’s due process claim itself – rather than remand to the district court – because the judge who decided the case has since retired.
     “Based on our independent review of the record, we conclude that Agent Linares told Cisneros-Rodriguez that an attorney would not help her and thereby persuaded Cisneros-Rodriguez to waive her right to obtain an attorney,” Fletcher said.
     “We therefore hold that Linares obtained an invalid waiver of Cisneros-Rodriguez’s right to counsel, in violation of her due process rights.”
     The panel also held that Cisneros-Rodriguez was prejudiced by the violation because it was plausible that she would have obtained a U-visa if she had not already been placed in removal proceedings.
     Although the government argued that Cisneros-Rodriguez was statutorily barred from applying for any form of relief and that it is not plausible that she would have obtained the U-visa had she applied for one in 2010, Fletcher said that “we disagree with both arguments.”
     It is “undisputed” that Cisneros-Rodriguez met the requirements for the visa, Fletcher said, since “she was the victim of extortion, a qualifying crime; she had suffered abuse in connection with the crime; and, as the certification she received from the Santa Clara County Sheriff’s Office attests, she had rendered substantial assistance in the prosecution of the crime’s perpetrator.”
     “We conclude that had Cisneros-Rodriguez applied for a U-visa in 2010, it was plausible that she would have obtained one,” he said.
     In a separate dissent, Senior District Judge Roslyn Silver – sitting by designation from the District of Arizona – found that “the district court did make credibility findings and determined Cisneros-Rodriguez was not credible.”
     “Under the applicable standard of review, deference is required,” she said.
     Reading the entirety of the district court’s decision in context, Silver said, the district court did decide the due process question based on the record and “even if the district court did not decide this question, this court is required to remand for resolution of all underlying factual issues.”
     Silver also disagreed with the majority that Cisneros-Rodriguez was prejudiced by the due process violation, finding that the defendant did not show such an experience in her testimony. She also found it implausible that Cisneros-Rodriguez would have been granted a U-visa in 2010 and avoid deportation.
     Cisneros-Rodriguez bears the burden of proof on that issue, Silver said, and she “has not met her burden of showing she had a plausible chance of being granted relief from removal.”
     Attorneys for Cisneros-Rodriguez did not immediately respond to an email requesting comment on the opinion Wednesday morning.
     The Justice Department declined to comment on the ruling.

%d bloggers like this: