[00:00:00] Speaker 01: So we'll go forward with the first case is USA versus Sanchez. [00:00:13] Speaker 04: Good morning, your honors, and may it please the court. [00:00:16] Speaker 04: Holt Ortiz Alden on behalf of defendant appellant Eliel Nunez Sanchez. [00:00:21] Speaker 04: I would like to reserve two minutes and I will watch my time. [00:00:25] Speaker 04: Eliel Nunez Sanchez was deported in 2010 following a mass deportation hearing with 13 other men. [00:00:31] Speaker 04: This hearing marked Mr. Nunez's sole appearance before an IJ and his individual portion of the hearing lasted just three minutes. [00:00:38] Speaker 04: During the hearing, numerous due process errors infected the deportation order. [00:00:43] Speaker 04: Those errors satisfy 1326D and permit collateral review. [00:00:48] Speaker 04: There are two issues in particular that I would like to discuss today. [00:00:51] Speaker 04: First, I want to start with the appellate waiver. [00:00:54] Speaker 04: The government did not establish by clear and convincing evidence that Mr. Nunez's waiver of his appellate rights [00:00:59] Speaker 04: was considered and intelligent. [00:01:02] Speaker 04: The government failed to overcome the presumption against waiver and has not met its burden. [00:01:07] Speaker 04: Second, subsection 1326, D1. [00:01:11] Speaker 04: Under Mendoza-Lopez and Valdivia-Soto, Mr. Nunez's invalid appellate waiver is a significant procedural defect that made direct review unavailable and therefore satisfied subsection D1. [00:01:25] Speaker 04: With respect to the appellate waiver, [00:01:28] Speaker 04: The government did not show that Mr. Nunez's waiver of appeal was considered and intelligent. [00:01:33] Speaker 04: Mr. Nunez was never told what an appeal was or the competing consequences of waiver and appeal and what those might've meant for him. [00:01:43] Speaker 04: He also was not told that he had a right to counsel on appeal. [00:01:47] Speaker 04: To make matters worse, Mr. Nunez was deprived of his right to counsel during the hearing and was not given a genuine opportunity to present evidence supporting his request for voluntary departure [00:01:58] Speaker 04: both of which were independent due process violations. [00:02:02] Speaker 04: Under the totality of the circumstances, the government did not establish that Mr. Nunez's appellate waiver was considered more intelligent. [00:02:12] Speaker 04: With respect to subsection D1, the procedural defects that caused the invalid appellate waiver satisfied D1 because they prevented Mr. Nunez from seeking direct review. [00:02:25] Speaker 04: Valdivia Soto held [00:02:26] Speaker 04: that a procedural error can prevent a non-citizen from taking advantage of an appeal. [00:02:31] Speaker 04: Mendoza Lopez, the Supreme Court case that predates subsection D held the same thing. [00:02:38] Speaker 04: Mr. Nunez was, again, never told what an appeal was, the types of arguments he could make, that he had a right to counsel, or the consequences and finality involved with waiver. [00:02:50] Speaker 04: Those omissions are similar, if not worse, than the translation error [00:02:54] Speaker 04: that occurred in Valdivia's Soto. [00:02:59] Speaker 02: So he, your client did sign ER 96. [00:03:04] Speaker 02: Before the hearing, you may be represented at the proceeding at no expense to the government by an attorney or other individual, right? [00:03:12] Speaker 02: That's correct. [00:03:14] Speaker 02: And the piece of paper that he signed said, at your hearing, you will be given the opportunity to admit or deny any or all of the allegations. [00:03:23] Speaker 02: You'll have the opportunity to present evidence at conclusion of your hearing. [00:03:27] Speaker 02: You have a right to appeal an adverse decision by the immigration judge, right? [00:03:32] Speaker 02: That's correct. [00:03:33] Speaker 02: And your client is entirely fluent in English, yes? [00:03:37] Speaker 02: That's what the record reflects, yes. [00:03:40] Speaker 04: And with respect to the information that was provided, Your Honor, as to appeal, the word appeal is a legal term of art that an uncounseled non-citizen would not necessarily understand. [00:03:56] Speaker 04: The government has an obligation to establish that not only that a non-citizen has waived their right to appeal, but that that waiver was considered and intelligent. [00:04:07] Speaker 04: And this court has repeatedly held [00:04:09] Speaker 04: that in order for a waiver to be considered an intelligent, the non-citizen needs to be advised as to what an appeal is and the potential consequences of waiver. [00:04:21] Speaker 03: Previous- But didn't the IJ explain in general terms, layman's terms? [00:04:27] Speaker 03: He said, if you waive your appeal, the decision will be final. [00:04:32] Speaker 03: If you don't, it will not be final that day. [00:04:35] Speaker 03: I mean, that seems to be in a very layman's term explaining the process. [00:04:40] Speaker 04: You're exactly right, Your Honor. [00:04:41] Speaker 04: That's what the IJ said. [00:04:42] Speaker 04: But that's not sufficient. [00:04:44] Speaker 04: It doesn't explain or explore the consequences. [00:04:48] Speaker 04: Nor does it explain what an appeal is. [00:04:50] Speaker 04: So for example, the IJ should have said, an appeal is where a higher court decides whether my decision was unfair for any reason and can reject the deportation order. [00:05:01] Speaker 04: An appeal is free. [00:05:02] Speaker 04: You have a right to counsel on appeal. [00:05:04] Speaker 04: And you can choose to give up this right, in which case, [00:05:09] Speaker 04: your case will end, you will be deported, and you will have no opportunity for other judges to review the decision. [00:05:17] Speaker 04: That would have been sufficient, and the IJ did not say any of those things during the hearing or specifically to Mr. Nunez. [00:05:24] Speaker 02: So this is applicable to your argument if we accept that it would be applicable to everybody at that hearing, at least for those who we have the transcript for. [00:05:37] Speaker 04: Yes, Your Honor. [00:05:38] Speaker 04: I don't recall specifically all of the individual colloquies that occurred and whether the IJ went in depth as to appellate rights during those colloquies. [00:05:47] Speaker 04: Based on my recollection, he did not. [00:05:49] Speaker 04: And so the inadequate advisor regarding the right to appeal would affect all of those other individuals as well, although a number of them were ultimately represented by counsel at a later date. [00:06:03] Speaker 04: And so that is an additional factor [00:06:05] Speaker 04: that affected Mr. Nunez in this hearing, not only was he uncounseled, but the government has not established that he ever waived his right to counsel, let alone that such a waiver was considered and intelligent. [00:06:19] Speaker 04: The government points to a portion of the transcript that says that, in which the IJ, giving a mass advisor, asks whether everyone would like to waive their right to counsel. [00:06:32] Speaker 04: The transcript states that the interpreter responds [00:06:35] Speaker 04: Yes. [00:06:37] Speaker 02: But what that means is the interpreter is, I mean, the only logical explanation for what that means is that the interpreter is saying that everyone has indicated in the courtroom, yes, presumably many of the people in Spanish. [00:06:55] Speaker 04: Your Honor, that's not the inference that can be made. [00:07:00] Speaker 04: And this court has addressed transcript issues like this before. [00:07:05] Speaker 04: Zarate Martinez, the transcript specifically said that the interpreter said, everyone answers yes. [00:07:13] Speaker 04: This is something that happens on the record throughout courts. [00:07:18] Speaker 04: The judge or the interpreter could have said, I see everyone has answered yes. [00:07:24] Speaker 04: On the other hand, as occurred in this case, this court's opinion in Lopez Vasquez at footnote four, where the interpreter said, yeah, [00:07:35] Speaker 04: in response to a question, this court noted that the record does not reveal whether Lopez Vasquez joined in the response. [00:07:42] Speaker 04: The government again has a burden to establish by clear and convincing evidence that these fundamental rights have been waived. [00:07:50] Speaker 04: And so here, when [00:07:53] Speaker 01: Judge Gould, I have a question for you on a point that may or may not be relevant. [00:07:58] Speaker 01: So if it's irrelevant, just tell me. [00:08:02] Speaker 01: This is an illegal reentry case. [00:08:06] Speaker 01: So there must have been a prior legal court proceeding in which your client was ordered to be deported. [00:08:20] Speaker 01: And I wondered if the record tells us what he was told about an appeal at that time. [00:08:29] Speaker 04: Your honor, if I'm understanding your question correctly, he had a single immigration proceeding. [00:08:39] Speaker 04: Before the immigration proceeding, he had a criminal conviction. [00:08:45] Speaker 04: Based on what's in the record, it doesn't appear that there was an appeal as part of that. [00:08:50] Speaker 04: conviction, but this was the only circumstance in which he appeared before the immigration agency in removal proceedings. [00:09:00] Speaker 04: At this time, there were future proceedings, but in 2010 this was [00:09:04] Speaker 02: the first time he had appeared in immigration court. [00:09:06] Speaker 02: Well, although going to Judge Gould's question at ER 85 is the record from the Superior Court of Los Angeles, I guess from his plea, where he was advised by counsel. [00:09:16] Speaker 02: I mean, he was represented by counsel. [00:09:21] Speaker 02: And it lists, actually, at ER 85, all of the things that he was told, et cetera, and told, in fact, if you're not a citizen, the offense for which you have been charged will have the consequences of deportation. [00:09:33] Speaker 02: So he certainly was not a novice in legal proceedings, right? [00:09:37] Speaker 04: I don't think that's necessarily the case, Your Honor. [00:09:40] Speaker 04: And I would note that the government has not made any arguments whatsoever that his experience in state criminal court would affect whether [00:09:49] Speaker 04: they can establish that his appellate waiver in immigration proceedings was considered an intelligent, but he had a single criminal case. [00:09:58] Speaker 04: We don't know what he was counseled in that case. [00:10:01] Speaker 04: We don't know what his lawyer told him about his right to appeal or whether he understood what his lawyer had explained to him. [00:10:07] Speaker 04: And so I don't believe that has any effect and nor has the government argued that it has any effect on his 2010 removal proceedings. [00:10:15] Speaker 04: I see that I'm out of time and I'd like to reserve whatever I have left. [00:10:19] Speaker 04: Thank you. [00:10:22] Speaker 01: We'll give you one minute for rebuttal so you can plan on that. [00:10:31] Speaker 01: We'll now hear from the government. [00:10:33] Speaker 00: Good morning and may it please the court, Laura Alexander for the United States. [00:10:38] Speaker 00: This court should affirm the district court's denial of defendant's motion to dismiss his indictment under [00:10:44] Speaker 00: Section 1326D, because defendant failed to demonstrate and cannot now demonstrate that he exhausted his administrative remedies, that he was deprived of the opportunity for judicial review, and that the entry of his deportation order was fundamentally unfair. [00:11:01] Speaker 00: I want to first turn to the issue that's really at the heart of this appeal that's been addressed by Council Alden in his turn. [00:11:10] Speaker 00: whether the defendant's waiver of his appellate rights was considered an intelligent. [00:11:16] Speaker 00: That's really what's important here. [00:11:17] Speaker 00: Defendant cannot establish that he satisfied 1326D1 or D2 because the record clearly establishes that he waived his right to appeal at his 2010 deportation proceedings and that this waiver was both considered and intelligent. [00:11:36] Speaker 00: I want to get now into the facts of the group colloquy and the individual colloquy at the defendant's 2010 deportation proceedings. [00:11:45] Speaker 00: First, during the group advisement, which proceeded in both English and Spanish, [00:11:51] Speaker 00: The IJ told the defendant and the other aliens that were present during that group colloquy, at the end of your hearing, I'm going to make a decision. [00:12:01] Speaker 00: If you disagree with that decision, you have the right to appeal it to a higher court called the Board of Immigration Appeals. [00:12:09] Speaker 00: And Your Honors, I'm looking now at ER 35 to 36. [00:12:14] Speaker 00: After he told them about this right to appeal his decision to a different court to essentially get a second bite at the apple, he went on to explain what the consequences of a waiver of that appellate right would be. [00:12:28] Speaker 00: He stated, and Judge Lee pointed this out, if you say no, meaning you don't want to appeal and that you accept the decision, it will be final on that day. [00:12:42] Speaker 00: If you say yes, meaning that you do want to appeal and that you don't accept the decision, it will not be final on that day. [00:12:51] Speaker 00: He even went on to tell the aliens, including the defendant, approximately how many days they would have to file their appeal. [00:12:59] Speaker 00: And then during the individual advisement, defendant affirmatively requested that the individual colloquy proceed in English. [00:13:09] Speaker 00: And I.J. [00:13:09] Speaker 00: Rohl stated, I'm going to deny your request for voluntary departure and instead order you deported to Mexico. [00:13:16] Speaker 00: Do you want to appeal that decision? [00:13:19] Speaker 00: Defendant answered, no. [00:13:23] Speaker 00: Here, I.J. [00:13:23] Speaker 00: Rohl did everything that the law requires. [00:13:26] Speaker 00: And I'm turning to Estrada versus Torres, which said that exactly what I.J. [00:13:32] Speaker 00: Rohl did here by [00:13:34] Speaker 00: going through the appellate rights and the group colloquy, and then later during the individual colloquy, having an interaction with the defendant and asking him directly and affirmatively whether he waived that right to appeal, that's sufficient under the law. [00:13:49] Speaker 02: How do you distinguish Val de Villas if I'm pronouncing that correctly? [00:14:01] Speaker 00: Yes, Your Honor. [00:14:03] Speaker 00: Valdivia Soto, the backdrop is important, I believe, in Valdivia Soto. [00:14:09] Speaker 00: In that case, the defendant at issue had a major neurological disorder. [00:14:15] Speaker 00: He was evaluated by a psychologist and that psychologist determined that the defendant had an extremely difficult ability to understand information that he received. [00:14:28] Speaker 00: He also only spoke Spanish and he did not read or write in any language. [00:14:34] Speaker 00: And against that backdrop of the defendant's specific mental condition, there was an affirmative misrepresentation in that case in that [00:14:45] Speaker 00: The translation errors by the translator that was present at that defendant's deportation proceeding misinterpreted information regarding the defendant's and the other alien's right to counsel. [00:14:58] Speaker 00: Essentially, the interpreter used a word in Spanish that meant to hire, and it affirmatively misled that defendant into believing that in order to be entitled to counsel, he had to hire counsel or essentially pay for counsel. [00:15:14] Speaker 00: And unlike this case here where the defendant speaks English, has no neurological disorder or mental condition issues, doesn't ask for clarification of his appellate rights in any way, in Valdivia Soto, he, in his responses, expressed confusion as to what his rights were when it came to his right to counsel and his right to appeal the IJ's decision. [00:15:40] Speaker 00: And when it came to the misrepresentation by the interpreter, she also said that the defendant would only be entitled to counsel on appeal if he hired that counsel. [00:15:53] Speaker 00: So the misrepresentation extended not just from the right to counsel, but also a right to counsel on appeal. [00:16:00] Speaker 00: That's what's really different from this case here. [00:16:02] Speaker 00: There is no misrepresentation here. [00:16:04] Speaker 00: No one is leading this defendant astray. [00:16:09] Speaker 00: And it makes sense under the Ross versus Blake framework that we would create an exception, if you will, or deem 1326D1 satisfied in these very, very narrow circumstances where a defendant is being affirmatively misled by officials. [00:16:28] Speaker 02: Council, the way I read the transcript, and perhaps the government reads it differently, is the IJ was essentially saying, [00:16:39] Speaker 02: I'm not giving anybody voluntary departure who has a criminal record. [00:16:43] Speaker 02: Is that a fair reading of what I.J. [00:16:46] Speaker 02: Rule or Rule East said? [00:16:50] Speaker 00: Not the government's reading, Your Honor. [00:16:52] Speaker 00: The government believes that I.J. [00:16:54] Speaker 00: Rule was essentially expressing an internal policy, if you will, that it wasn't I.J. [00:17:01] Speaker 00: Rule stating that he would not consider [00:17:04] Speaker 00: any other factors present in every alien's individual colloquy in terms of mitigating circumstances. [00:17:11] Speaker 00: Here, I.J. [00:17:11] Speaker 00: Rohl received information that the defendant first came to the United States in 1992 as a child. [00:17:18] Speaker 00: He knew that the defendant had a U.S. [00:17:20] Speaker 00: citizen fiance. [00:17:22] Speaker 00: at a two-year-old that was also a US citizen. [00:17:25] Speaker 00: So he received information and considered that information when it came to the defendant's mitigating circumstances. [00:17:31] Speaker 00: But it's not contrary to the law for an immigration judge to have an internal [00:17:38] Speaker 02: policy when it comes to certain criminal offenses and the exercise of their discretion with respect to... What about where the judge says at ER 68, not going to give you voluntary departure, sir, because you can't emigrate or immigrate because of your drug conviction, so it wouldn't do you any good. [00:18:01] Speaker 02: Is that a correct statement of the law by the IJ? [00:18:07] Speaker 00: It is, Your Honor. [00:18:08] Speaker 00: A controlled substance offense subject to a few specific exceptions does bar an alien from lawfully immigrating into the United States under the INA. [00:18:22] Speaker 00: However, here, I.J. [00:18:23] Speaker 00: Rowe is essentially expressing that in his discretion, he believes that if he were to even grant voluntary departure, it would essentially be futile. [00:18:33] Speaker 00: He wouldn't receive any benefit from it. [00:18:36] Speaker 00: And again, [00:18:37] Speaker 00: The government reads the transcript here as showing not that he disregarded other factors, but this was simply one of those factors that he considered. [00:18:50] Speaker 00: His criminal background, the fact that he had a conviction just four years prior to the 2010 deportation proceedings, [00:18:57] Speaker 00: for possessing methamphetamine with a firearm. [00:19:01] Speaker 00: So yes, this in the government's view is just a proper exercise of judge rules discretion when it came to pre-conclusion voluntary departure. [00:19:11] Speaker 03: You briefly addressed this, but [00:19:14] Speaker 03: however you reckon, there's a little bit of tension between the Supreme Court's Palomar-Santiago decision and our more recent decisions, Valdivia's Soto and Portia Gonzalez. [00:19:27] Speaker 03: So what you're advocating is that our decision should be interpreted as creating a narrow exception just for misrepresentation by the government or the IJ? [00:19:39] Speaker 00: Yes, Your Honor. [00:19:40] Speaker 00: Palomar Santiago, Portillo Gonzalez, and Valdivia Soto all referenced the Ross versus Blake framework. [00:19:48] Speaker 00: Ross versus Blake essentially found that the PLRA, which this court found in Valdivia Soto is very similar to the 1326D context, that it's a statutory exhaustion regime, and it's mandatory. [00:20:04] Speaker 00: But there's one textual exception to that mandatory exhaustion regime. [00:20:10] Speaker 00: And that textual exception is that those administrative remedies in 1326D1 actually be available. [00:20:17] Speaker 00: And Ross versus Blake enunciated three special circumstances where those remedies wouldn't be available. [00:20:24] Speaker 00: One of those that is the most relevant in the 1326 context is that administrative officials or here immigration officials are not affirmatively awarding a defendant's attempt to benefit from those administrative remedies through machination, through intimidation, or through misrepresentation. [00:20:44] Speaker 00: That's the narrow circumstance here that Valdivia Soto recognized. [00:20:49] Speaker 00: That translation error affirmatively misled the defendant in that case, and that's simply not present here on these facts. [00:20:58] Speaker 00: I see that I'm low on time, so if your honors have no further questions, the government respectfully requested this court affirm the district court's order. [00:21:06] Speaker 00: Thank you. [00:21:07] Speaker 01: You're out of time. [00:21:09] Speaker 01: That clock is the amount of time you've gone off. [00:21:13] Speaker 00: Apologies, Your Honor. [00:21:14] Speaker 01: Well, that's OK. [00:21:15] Speaker 01: I was going to give you an extra minute, because we're giving an extra minute to the appellant, too. [00:21:25] Speaker 01: OK, so thank you. [00:21:26] Speaker 00: Thank you. [00:21:28] Speaker 01: And now we'll hear one minute of rebuttal. [00:21:31] Speaker 01: And I apologize. [00:21:33] Speaker 01: We'll have to keep the rebuttal to that one minute because of our schedule today. [00:21:41] Speaker 04: Thank you, Your Honor. [00:21:42] Speaker 04: I'd like to discuss two things very briefly. [00:21:44] Speaker 04: First, with respect to voluntary departure, the government in its briefing did not argued one thing in support of the IJ's decision that Mr. Nunez was statutorily ineligible for post-conclusion voluntary departure. [00:21:58] Speaker 04: Our argument is with respect to pre-conclusion voluntary departure. [00:22:01] Speaker 04: Now, that argument argues something else, and that what it argues today is wrong under this Court's recent Zamorano versus Garland decision, which is addressed in the briefing. [00:22:13] Speaker 04: With respect to the Blake Ross versus Blake case, in this context, where an IJ is responsible for advising someone, an affirmative representation is no different from an omission. [00:22:24] Speaker 04: And this court, en banc, has held in the PRLA context that failure to advise or omission can prevent a prisoner from seeking further review. [00:22:35] Speaker 04: The case is Albino versus Baca, 747, F3rd, 1162. [00:22:41] Speaker 04: Ninth Circuit 2014, and it's since been recited post Ross versus Blake for that very reason. [00:22:49] Speaker 01: Hey, thank you, counsel. [00:22:50] Speaker 01: Thank you. [00:22:51] Speaker 01: I want to say I appreciate very much the flexibility of counsel on both sides to appear remotely because of the tragic fires in Los Angeles area. [00:23:10] Speaker 01: That's very helpful. [00:23:13] Speaker 01: You've both made excellent arguments and the court will now submit the Sanchez case and you'll hear from us in due course. [00:23:26] Speaker 01: Thank you, Your Honor.