Argued and Submitted, Pasadena, California June 2, 2015.
Appeal from the United States District Court for the Central District of California. D.C. No. 2:12-cr-00843-DMG-1. Dolly M. Gee, District Judge, Presiding.
The panel vacated a conviction and sentence for illegal reentry after deportation or removal in violation of 8 U.S.C. § 1326 and remanded for the district court to consider whether the defendant was prejudiced by the deprivation of his due process rights in his removal proceeding.
The panel rejected the contention that the defendant's due process rights were violated because his first degree robbery conviction did not qualify as an " aggravated felony" when his immigration proceedings began in 1995, and therefore the immigration judge (" IJ" ) erred in finding him deportable based on that offense. The panel held that the new definition set forth in § 321(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (" IIRIRA" ), making theft offenses aggravated felonies so long as the defendant was sentenced to one year or more in prison, rather than five years or more, applied when the IJ acted in 1999 by entering a removal order.
The panel held that the IJ erred when she failed to advise the defendant of the possibility of relief under 8 U.S.C. § 1182(c). The panel explained that § 440(d) of the Antiterrorism and Effective Death Penalty Act was not effective as to proceedings, such as the defendant's, that had commenced prior to the date of the Act's enactment. In addition, the provision of IIRIRA that eliminated relief under § 1182(c) did not apply to aliens, like the defendant, whose proceedings had commenced before the enactment of IIRIRA. The panel vacated the defendant's conviction and sentence and remanded for the district court to consider whether he was prejudiced by the deprivation of his due process rights in his 1999 removal proceeding. The panel stated that if the defendant was not prejudiced, then the district court could reinstate his conviction and sentence. If the defendant was prejudiced, then the district court must dismiss the indictment.
The panel held that the IJ did not err or deprive the defendant of due process when she failed to advise him of the possibility of relief under 8 U.S.C. § 1182(h).
Judge Fisher concurred in Parts A and B of the opinion. Dissenting from Part C, he wrote that in addition to informing the defendant about his eligibility for relief under § 1182(c), the IJ should have advised him of his apparent eligibility for § 1182(h) relief.
James H. Locklin (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender, Federal Public Defender's Office, Los Angeles, California, for Defendant-Appellant.
Cassie D. Palmer (argued), Assistant United States Attorney, General Crimes Section; Stephanie Yonekura, Acting United States Attorney; Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division, Office of the United States Attorney, Los Angeles, California, for Plaintiff-Appellee.
Before: Ferdinand F. Fernandez, Raymond C. Fisher, and Carlos T. Bea, Circuit Judges. Opinion by Judge Fernandez; Partial Concurrence and Partial Dissent by Judge Fisher.
Ferdinand F. Fernandez, Circuit Judge:
Raul Guzman-Ibarez appeals his conviction and sentence for illegal reentry after deportation or removal. See 8 U.S.C. § 1326. Specifically, he asserts that his indictment should have been dismissed by the district court because he was denied due process at his deportation hearing on August 25, 1999, which precludes use of the deportation order in a criminal proceeding. See id. § 1326(d). We vacate his conviction and sentence and remand.
Guzman was born in Mexico, but came to the United States in 1979, when he was about six years old. He became a Legal Permanent Resident (" LPR" ) on July 13, 1989. He was far from being a perfect peregrine; rather, he committed numerous crimes and on December 21, 1995, a deportation proceeding was initiated against him. Undeterred, he committed a robbery in California, was convicted of first degree robbery on February 14, 1997, and was sentenced to four years' imprisonment as a result. Because state criminal proceedings necessitated a delay in the deportation proceeding, it was administratively closed in 1997. Guzman served his term, and the deportation proceeding was reopened. On August 12, 1999, the robbery conviction was added to the charges supporting his deportation. On August 25, 1999, the immigration judge (IJ) found that he was deportable as an alien convicted of an aggravated felony (8 U.S.C. § 1227(a)(2)(A)(iii)) and a firearm offense (8 U.S.C. § 1227(a)(2)(C)), and that he was ineligible for discretionary relief based upon his robbery conviction. Guzman waived his right to appeal. He was deported.
Guzman paid no more attention to the laws of the United States than he paid to the laws of the State of California; he reentered and was deported again in 2000, 2002, 2004 and 2010 based on the initial 1999 deportation. But ours is a patient polity, and it was not until Guzman was found here in July of 2012 that the current ...