United States v. Ramirez-Cortinas, No. 19-50182 (Clement, Elrod, Duncan)

8 U.S.C. § 1326(a) makes it a crime for certain non-citizens who have been previously deported to reenter the U.S. unlawfully. Section 1326(d) permits a non-citizen to collaterally attack the underlying deportation order if he can show that:

  1. he exhausted administrative remedies;
  2. the deportation proceedings at issue improperly deprived him of the opportunity for judicial review; and
  3. the entry of the order was fundamentally unfair.

The Fifth Circuit has added an actual prejudice requirement to that list. See United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999). Actually, the Fifth Circuit's actual prejudice requirement predates the current version of section 1326(d). As the Court explained in Benitez-Villafuerte, Congress amended section 1326 in 1996 to add the current version of 1326(d), which I have paraphrased above. The Fifth Circuit described that amendment as "effectively codifying" its existing standard, which it described as follows:

In order successfully to collaterally attack a deportation order in a § 1326 prosecution, the alien must show (1) that the deportation hearing was fundamentally unfair, (2) that the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the deportation, and (3) the procedural deficiencies caused him actual prejudice.

It appears that one way or the other, however, the standard came to be viewed as a four-part test that demanded the non-citizen demonstrate both fundamental unfairness and actual prejudice. If I had more time, I'd follow this rabbit trail to the end. Unfortunately, I have to keep moving. Maybe someone reading this can explain what's going on here. If so, please let me know!

Anyway, to show actual prejudice, the non-citizen must show that “‘there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported.’” Benitez-Villafuerte, 186 F.3d at 658-59 (5th Cir. 1999) ). “If the alien fails to establish one prong of the three-part test, the court need not consider the others.” United States v. Cordova–Soto, 804 F.3d 714, 719 (5th Cir. 2015) (quoting United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003)).

In Ramirez-Cortinas, the panel reversed a district court order dismissing an indictment charging Ramirez-Cortinas with illegal reentry because the district court applied a "watered down" version of this actual-prejudice requirement. Because there was no reasonable likelihood that but for the claimed errors in Ramirez-Cortinas's underlying deportation proceedings, Ramirez-Cortinas wouldn't have been deported, the Court reversed and remanded.

Lavery v. Barr, No. 18-60244 (5th Cir. 2019) (Jones, Smith, Haynes)

Judge Jones's opinion for the Court summarizes its decision this way:

The Court explained that as a VWP participant, Lavery was limited to contesting his removal "on the basis of an application for asylum." 8 U.S.C. § 1187(b)(2). Lavery didn't seek asylum, however, and, as a result, the Fifth Circuit lacked jurisdiction to consider the merits of his challenge to his summary removal. It was true, as Lavery argued, that 8 C.F.R. § 103.5 permits "a party affected by a decision issued by a Department of Homeland Security ... officer, which includes an ICE officer," to "file a motion to reopen a proceeding," but the Court agreed with the Government that section 103.5 "only applies to aliens requesting immigration benefits and is not applicable to aliens challenging a VWP order of removal."

The Court explained that 8 C.F.R. § 217 controls VWP proceedings and makes no mention of a motion to reopen:

The Court added this seemingly important footnote:

United States v. Noria, No. 19-20286 (Higginbotham, Stewart, Engelhardt)

This important case addresses a question of first impression (for the Fifth Circuit at least) under the Confrontation Clause. Here's how Judge Higginbotham summarizes the Court's decision:

Those interested in the Confrontation Clause and the Rules of Evidence will want to give it a close read. Because those topics aren't my focus here, I'm going to move on the next case.

Martinez-Lopez v. Barr, No. 18-60393 (5th Cir. 2019) (Jolly, Smith, Costa) (per curiam)

In this case, the Fifth Circuit denies Martinez-Lopez's petition for review of a BIA decision affirming the denial of her and her son's requests for asylum, withholding of removal, and protection under the Convention Against Torture. Like so many opinions addressing similar issues, this one is difficult to read because Martinez-Lopez's story is tragic but ultimately does not entitle her to the relief she seeks. In terms of novel points of law, the most interesting part of the opinion, in my view, is footnote 1, which I reproduce here:

A petition for certiorari has been filed in Pierre-Paul. See Pierre-Paul v. Barr, No. 19-779, here.

Chavez-Mercado v. Barr, 17-60212 (5th Cir. 2020) (Owen, Dennis, Southwick)

Chavez entered the U.S. illegally in 1999 and adjusted to permanent resident status in 2005. In 2014, he was convicted of two Texas offenses: evading arrest with a motor vehicle and burglary of a habitation. In 2015, while he was in custody, DHS served Chavez with a notice to appear charging him with removability for having been convicted of an aggravated felony--namely, a crime of violence as defined under 18 U.S.C.  § 16(b), for which the term of imprisonment is at least one year. See 8 U.S.C.  § 1101(a)(43)(F). The sole conviction listed in the NTA was Chavez's 2014 conviction for evading arrest with a vehicle. The IJ held that the evading arrest with a vehicle conviction qualified as a crime of violence and thus an aggravated felony, and ordered Chavez removed. The BIA terminated the proceedings against Chavez, however, in light of the Fifth Circuit's then-existing panel opinion in United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), which held that § 16(b)’s definition of a crime of violence was unconstitutionally vague (SCOTUS later confirmed that section 16(b) was unconstitutionally vague in Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018)).

Rather than seek reconsideration of the BIA's decision, DHS issued a second NTA against Chavez based on his other 2014 conviction--the one for burglary of a habitation--claiming it, too, qualified as an aggravated felony. The IJ ruled that the burglary of a habitation conviction qualified as a crime of violence under 8 U.S.C. § 1101(a)(43)(F) and that Chavez was therefore removable as an aggravated felon. (Notably, Quarles v. United States, 139 S. Ct. 1872 (2019), confirms that Chavez’s conviction for burglary of a dwelling under § 30.02(c)(2) constitutes a crime of violence under § 1101(43)(F)).

Chavez argued that res judicata barred DHS from initiating new charges against him based on an alleged aggravated felony conviction that existed at the time of his first removal proceedings. The IJ rejected that argument, and the BIA affirmed, concluding that Chavez's removability based on his burglary conviction had never been litigated and, as such, that res judicata didn't apply. Chavez petitioned for review, and the Fifth Circuit denied the petition in part and dismissed in part for lack of jurisdiction.

The panel began by explaining the basic res judicata standard:

...

The panel agreed with the Second and Eighth Circuit's approach and explained why, applying that standard in Chavez's case, meant res judicata didn't apply:

Chavez had also argued that 8 C.F.R. § 1240.10(e) barred DHS from filing a second NTA in his case. Section 1240.10(e) permits DHS to pursue certain charges over others or substitute or amend pleadings, but not to initiate a second removal proceeding after failing to advance a charge of removability in the first. The Fifth Circuit held that it lacked jurisdiction to consider this argument because Chavez had failed to raise it on appeal.

Fifth Circuit Immigration Update
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