Argued and Submitted, San Francisco, California March
Appeal from the United States District Court for the Northern District of California. D.C. No. 5:11-cr-00744-DLJ-1. D. Lowell Jensen, Senior District Judge, Presiding.
Reversing a criminal judgment, the panel remanded with instructions to dismiss an indictment and vacate the defendant's conviction for illegal reentry.
The panel held that if an Immigration and Customs Enforcement 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. The panel held that an ICE agent therefore obtained an invalid waiver of the defendant's right to counsel, in violation of due process, when he advised the defendant that an attorney would not have been able to help her when she was facially eligible for a U-visa, a form of hardship relief available to a person convicted of an aggravated felony.
The panel further held that the defendant was prejudiced by the due process violation because it was plausible that she would have obtained a U-visa had she applied for one, notwithstanding the fact that she had already been placed in administrative removal proceedings.
Dissenting, District Judge Silver wrote that the district court made credibility findings, and that deference to the district court's determination that the defendant was not credible is required; that the law governing administrative removal proceedings would have prevented the defendant from staying, vacating, or converting the proceedings; and that the defendant has not carried the burden to establish she plausibly would have been granted a U-visa.
Varell Laphalle Fuller (argued), Assistant Federal Public Defender, Federal Public Defender's Office, San Jose, California, for Defendant-Appellant.
Barbara Valliere, Chief, Appellate Division, Anne M. Voigts (argued), Assistant United States Attorney, Office of the United States Attorney, San Francisco, California, for Plaintiff-Appellee.
Before: William A. Fletcher and Morgan Christen, Circuit Judges and Roslyn O. Silver,[*] Senior District Judge.
W. FLETCHER, Circuit Judge:
Xochitl Cisneros-Rodriguez (" Cisneros" ), an undocumented alien, was convicted in 2009 of violating California narcotics laws and was subsequently placed in administrative removal proceedings. She was told by the Immigration and Customs Enforcement (" ICE" ) agent who conducted the proceeding that, because she had been convicted of an aggravated felony, an attorney could not help her. She was ordered removed in 2010. When Cisneros returned to the United States without permission in 2011, she was criminally charged with illegal reentry. She moved in the district court to dismiss the indictment on the ground that her 2010 removal order was fundamentally unfair because her due process rights had been violated. The district court denied the motion and Cisneros was convicted of illegal reentry.
We hold that the ICE agent who conducted Cisneros's administrative removal proceeding violated her due process rights by telling her that an attorney would not have been able to help her when she was facially eligible for a U-visa, a form of hardship relief available to a person convicted of an aggravated felony. We further hold that Cisneros was prejudiced by the due process violation because it was plausible that Cisneros would have obtained a U-visa had she applied for one in 2010, notwithstanding the fact that she had already been placed in administrative removal proceedings. We therefore reverse and remand with instructions to dismiss the indictment and vacate the conviction.
A. Factual Background
Xochitl Cisneros-Rodriguez is a 32-year-old Mexican national who was brought to the United States as a child and has lived here, undocumented, for most of her life. She is married and has two sons. Her husband and sons are all United States citizens.
As a young adult, Cisneros had several encounters with the criminal justice system. She has been convicted of a number of California state misdemeanors. She has also been convicted of felony and misdemeanor fraud.
In 2006, Cisneros's car was stolen by a woman named Monalisa Rodriguez. Cisneros reported the theft, and Rodriguez was convicted of larceny and served time in prison. One night in October 2008, after Rodriguez had been released from prison, she came to Cisneros's home with a knife. She called Cisneros a " snitch" and claimed she would hurt Cisneros's family if Cisneros did not " pay her back" by helping her sell methamphetamine. Over the next three months, until January 2009, Cisneros helped Rodriguez sell methamphetamine in and around San Jose, California. Rodriguez repeatedly threatened Cisneros during this period, hitting her on three separate occasions and telling her that if she did not cooperate, Rodriguez would hurt members of her family.
In January 2009, Cisneros and Rodriguez were arrested and charged with possession of methamphetamine for sale. The two women were both incarcerated at the Elmwood Correctional Facility in Santa Clara County. While incarcerated, Rodriguez repeatedly threatened Cisneros with violence, both to extort money and to dissuade her from testifying against Rodriguez. Approximately a week after the arrest, Rodriguez instructed Cisneros to call her mother and tell her to wire $300 to Rodriguez's prison commissary account. If Cisneros did not do so, Rodriguez said, Cisneros would get " beat up." When Cisneros's mother did not send the money, Rodriguez took Cisneros to a bathroom in the prison and assaulted her. Cisneros's mother then sent the money. Rodriguez then demanded that she send an additional $300.
In February, the jail staff moved Cisneros into another dormitory in the jail, and later moved her into protective custody. Rodriguez continued to harass Cisneros, sending her threatening notes through other inmates. One note instructed Cisneros to " keep saying the dope was yours in court." Another instructed her to tell her mother to send additional money, adding, " Or. do I need some one [sic] to go see your brother?" The harassment continued into the fall. In September, jail staff observed inmates " striking [Cisneros] in the head multiple times with both fists." A report from that incident states that Cisneros suffered " multiple contusion[s] [to the] back of [her] head." When shown a photograph of Rodriguez by an investigator, Cisneros said, unprompted, " Oh my god, she scares me." She said that Rodriguez made her " go through hell."
Around May 2009, as a result of reports by Cisneros and her mother, the Santa Clara County Sheriff's Office referred the case to the District Attorney. In December 2009, Cisneros testified at a preliminary hearing on extortion and other criminal charges brought against Rodriguez. The other witnesses at the hearing were Cisneros's mother and an investigating officer. At the close of the hearing, the judge found probable cause to issue an information charging Rodriguez with one felony count of extortion, one felony count of dissuading a witness by use of force, and one count of misdemeanor battery. Cisneros was listed as the victim of all three crimes. In February 2010, Rodriguez entered a plea of nolo contendere to the charges and was sentenced to a year in prison, in addition to any sentence imposed on the methamphetamine charges.
Cisneros ultimately pled guilty to two counts of possessing a controlled substance for sale in violation of California Health and Safety Code § 11378, arising out of the January 2009 arrest and a prior arrest in November 2008. She was sentenced to one year of incarceration for each count.
B. Immigration Proceedings
On January 20, 2009, the day after she and Rodriguez were arrested, Cisneros was referred to ICE. She was interviewed at the Elmwood Correctional Facility by ICE Agent Steven Contreras. Contreras recorded on a form that Cisneros had been born in Mexico; that she had entered the United States without inspection; and that she was married. In October 2009, after Cisneros had pled guilty to violating California narcotics laws, ICE Agent Jose Linares reopened her file in order to prepare for removal proceedings. He recommended that ICE place Cisneros into administrative removal proceedings. Administrative removal proceedings are conducted by ICE agents rather than Immigration Judges.
On May 20, 2010, Cisneros was transferred to an ICE facility, where she was placed in an administrative removal proceeding conducted by Agent Linares. Part of what occurred on May 20 is disputed. Specifically, the parties dispute what Linares told Cisneros about her right to hire an attorney and whether he told her that an attorney would not help her. But the following facts are undisputed. Linares served Cisneros with an arrest warrant and a Notice of Intent to Issue a Final Administrative Removal Order. Cisneros signed the notice, admitting the charge of removability and waiving her right to contest it. She then signed a form admitting to having entered the United States unlawfully in 1994 and waiving her right to an attorney. Linares testified that the entire proceedings likely took somewhere between ten and fifteen minutes. Cisneros testified that the proceedings took about ten minutes.
Cisneros was removed to Mexico on the following day pursuant to a final administrative order of removal.
C. District Court Proceedings
Cisneros returned to the United States without permission sometime in 2011. She was arrested in October 2011 and criminally charged with illegal reentry in violation of 8 U.S.C. § 1326. In December 2011, represented by counsel, Cisneros filed an application with U.S. Citizenship and Immigration Services (" USCIS" ) for a U-visa, a form of hardship relief available to victims of crimes who have suffered mental or physical abuse and are helpful to law enforcement officials in prosecuting or investigating the crime. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464, 1533. As part of her application, Cisneros was required to obtain certification from a law enforcement officer that she had assisted in prosecuting a qualifying crime. A detective from the Santa Clara County Sheriff's Office certified that Cisneros had assisted in prosecuting Rodriguez for extortion.
In district court, Cisneros moved to dismiss the indictment on the ground that her due process rights had been violated in the administrative removal proceeding on May 20, 2010. She argued that her waivers of her rights to appeal and to counsel had not been " knowing and voluntary" because Agent Linares had not followed ICE procedures and had affirmatively misadvised her about her right to counsel and about the help an attorney could have provided. The district judge noted that he generally resolved motions to dismiss an indictment in a § 1326 case " on the basis of affidavits," but that in this circumstance he would hold an evidentiary hearing. In the hearing that followed, Cisneros and Linares testified about the circumstances of Cisneros's removal.
Cisneros testified that on May 20 Agent Linares had instructed her to sign forms without indicating to her what they were. According to Cisneros, when Linares handed her the notice on which she admitted her removability, he had folded over the first page which contained the charge itself, and he had pre-checked the boxes admitting the charge and waiving her right to contest it. She testified that Linares did not translate the charges or allegations into Spanish, and that he did not tell her she had the right to rebut or contest the allegations or to appeal his decision. She also testified that, had he told her these things, she would have contested her removal. She testified that Linares had told her " that if I wanted to leave in the plane that was about to leave that I would have to sign this [notice]." She described Linares's tone as " Just harsh. Quick. Rude."
Cisneros testified that Agent Linares had affirmatively misadvised her about whether she could speak to an attorney, and about whether an attorney would help her. ICE is required by regulation to provide aliens in removal proceedings with a list of free legal services. See 8 C.F.R. § 238.1(b)(2)(iv). She testified that she was " certain" that Linares had not provided her with such a list. Cisneros further testified that Linares did not tell her that she had a right to hire an attorney and told her that because she " had big charges" she " could not see a judge." In her affidavit filed in the district court, Cisneros testified that Linares told her that " a lawyer would not help me, so I did not ask for an attorney."
Cisneros testified on direct examination that she had told Agent Linares during the May 20 interview that she " had an extortion case in which I had been a victim." On cross examination, however, the government sought clarification because Cisneros's written declaration seemed to indicate that she had not told Linares about her extortion case. Cisneros clarified that she had mentioned her extortion case to someone other than Linares:
Q: So going back to your declaration, it states that you explained to an officer, and the way the declaration is written, it appears to be someone other than Agent Linares. You explained that you had an extortion case.
A: Okay. That question that you asked . . ., when I was looking at the immigration people that were present, I remember that he interviewed me in January, but it was -- well, it was another person who came when I was already under protection. It wasn't the same person.
Cisneros testified further that she had mentioned her extortion case to someone other than Contreras.
Q: So it was not either of the two gentleman [sic] you saw [in court] on Thursday [Agent Linares or Agent Contreras]?
A. The first one was -- I don't remember, his name is like Contreras. All right. He went to see me when I was already in the dorms, but it wasn't him I said to -- well, that I speak ...