United States v. Valdivias-Soto

112 F.4th 713

UNITED STATES of America, Plaintiff-Appellant, v. Rosendo VALDIVIAS-SOTO, Defendant-Appellee.

No. 20-10415

United States Court of Appeals, Ninth Circuit

Argued and Submitted March 28, 2023 San Francisco, California

Filed August 9, 2024

Appeal from the United States District Court for the Northern District of California, Beth Labson Freeman, District Judge, Presiding, D.C. No. 5:18-cr-00505-BLF-1

Merry J. Chan (argued), Assistant United States Attorney; Matthew M. Yelovich, Chief, Appellate Section, Criminal Division; Stephanie M. Hinds, Acting United States Attorney; Ismail J. Ramsey, United States Attorney; Department of Justice, Office of the United States Attorney, San Francisco, California; Scott Simeon, Assistant United States Attorney, Department of Justice, Office of the United States Attorney, San Jose, California; for Plaintiff-Appellant.

Dejan M. Gantar (argued), Graham Archer, and Lara S. Vinnard, Assistant Federal Public Defenders; Jodi Linker, Federal Public Defender; Geoffrey A. Hansen, Acting Federal Public Defender; Federal Public Defenders Office, Northern District of California, San Jose, California; for Defendant-Appellee.

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and Edward R. Korman,^* District Judge.

Opinion by Judge Korman;

Dissent by Judge Ikuta.

OPINION

KORMAN, District Judge:

Rosendo Valdivias-Soto ("Valdivias") was indicted for illegally reentering the United States after he had previously been removed. This appeal presents the issue of whether he may successfully raise errors in his removal proceeding as a defense to his indictment. The district court held that he could and dismissed the indictment. It held that translation errors and misstatements by the immigration judge ("IJ") about Valdivias's rights to be represented by counsel and to an appeal violated due process. We affirm.

I. Background

Valdivias, a 45-year-old native and citizen of Mexico, first entered the United States illegally in 1999, at the age of 19. In 2011, he was convicted of conspiring to cultivate marijuana in violation of California Penal Code § 182—a felony at the time, but a misdemeanor in California today.

A. Removal Proceedings

While incarcerated for that offense, Valdivias appeared without counsel via teleconference in removal proceedings before an IJ. He speaks only Spanish and is unable to read or write in Spanish or English. The IJ spoke to Valdivias, along with other respondents at the proceedings, through a Spanish interpreter. Throughout the hearing, the interpreter translated the IJ's statements about the right to counsel using the verb "contratar," meaning "to hire."¹ For example, the IJ advised the group: "At this and every hearing, gentlemen, you can have an attorney, but the government will not pay for your attorney.... [I]f you want an attorney, you must find one for yourself at no expense to the government." This was translated as: "[I]n this proceeding and any other one that you have with immigration, you can hire an attorney. The government does not pay for the service of an attorney. Each one who, then, wants to hire an attorney goes and hires one at his own expense." The IJ then said, as translated: "[T]o each one who would like to look for an attorney to hire one, a list of local legal services has been provided. When the people signed up on the list, those attorneys indicate[d] to the judge that they can do cases free of charge and others for a low fee." The IJ explained, again, as translated, that "if anyone would like to hire an attorney," the IJ would postpone their case for a later date. Valdivias then waived his right to counsel and opted to represent himself.

Next, the IJ informed the group about their right to appeal any decision in their case. The IJ explained, as translated, that if they "need[ed] an attorney to help" with the appeal process, they could (once again) "hire one." Valdivias stated that he understood his right to appeal and, after a brief dialogue, admitted the Government's allegations. The IJ then found him removable.

The IJ also told Valdivias that his crime of conviction was an aggravated felony and that he was therefore "ineligible for any relief or remedy."² When asked if he would like to appeal the IJ's decision to the Board of Immigration Appeals ("BIA"), Valdivias inquired whether, if he did, he would be "let ... go on the same date." The IJ replied, as translated: "After that, yes, but ... to prison they send you over here to the immigration authorities, Ok? They take you ... out." Valdivias said he did not want to appeal, but, when asked again later, sought clarification: "Well, like, I don't have any chance there ... from what I'm hearing." The IJ responded, as translated: "[Y]ou have to see if you have opportunities or not. I already told you what your rights are." Valdivias then confirmed that he did not wish to appeal. He was subsequently deported in February 2012 pursuant to a removal order.

B. District Court Proceedings

In February 2015, Valdivias was found in the United States and was indicted for illegal reentry in violation of 8 U.S.C. § 1326. To support his defense to the indictment, he was evaluated by a neuropsychologist and diagnosed with major neurocognitive disorder stemming from a history of traumatic brain injury dating back to his childhood. The doctor rated Valdivias's "understanding of what he is told" as "extremely low" and concluded that he lacked "the attentional focus and working memory to understand complex information." The doctor also concluded that Valdivias's cognitive profile was consistent with brain damage caused by skull fractures he incurred during an assault in 2002 "superimposed upon an already vulnerable brain" due to "a severe traumatic brain injury around the age of twelve."

Valdivias moved to dismiss the indictment on the ground that the removal order underlying his illegal reentry charge was invalid. In so doing, he relied on United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), which held that defendants charged with illegal reentry have a due process right to mount such a collateral challenge if "defects in" their removal proceeding "foreclose[d] judicial review of that proceeding." Id. at 838-39, 107 S.Ct. 2148. That right is reflected in § 1326, which Congress amended in 1996 by adding a new subsection (d) that expressly authorizes collateral challenges to the extent required by Mendoza-Lopez. Subsection (d) provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b)[³] unless the alien demonstrates that—

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d).

Valdivias argued that his waiver of the right to be represented by counsel in his immigration proceedings and his waiver of the right to appeal his removal order were both defective because he had been misinformed by the IJ and misled by translation errors at his removal hearing about the content of both rights. Consequently, the subsequent entry of his removal order was "fundamentally unfair," and he satisfied the exhaustion and deprivation of judicial review requirements of § 1326(d)(1) and (2). The district court agreed.

First, it concluded that Valdivias's waiver of his right to counsel had not been knowing and voluntary because the interpreter at his removal hearing erroneously translated his right to counsel as the right to "hire" an attorney. The district court also found that Valdivias was inadequately advised about the availability of pro bono legal services at the immigration court, as required by 8 C.F.R. § 1240.10(a)(2). Second, the district court concluded that Valdivias's waiver of his right to appeal his removal order had not been considered and intelligent because the IJ erroneously advised Valdivias that he was "ineligible for any relief or remedy" by virtue of his conviction when, in fact, he was plausibly eligible for a U-visa. Such a visa, or U nonimmigrant status, is an immigration benefit available to certain victims of crime who have suffered mental or physical abuse and are helpful to law enforcement officials in investigating or prosecuting the crime. See 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14(b). Valdivias was plausibly eligible for this benefit because, in 2002, he was assaulted while walking in East Palo Alto at night and subsequently gave information to a police officer investigating the crime.

Next, the district court held that Valdivias was prejudiced by his invalid waivers of the right to counsel and the right to appeal. Had Valdivias been able to pursue a counseled appeal of his removal order, the district court found that he could plausibly have obtained a U-visa and thereby prevented his deportation. Individuals with such a visa have temporary nonimmigrant status and a pathway to lawful permanent residency. See 8 U.S.C. § 1255(m); 8 C.F.R. § 245.24. Moreover, U.S. Immigration and Customs Enforcement ("ICE") policy is to seek the termination of removal proceedings against a noncitizen who has obtained a U-visa, even after a removal order has been issued.⁴

The district court also agreed that Valdivias satisfied § 1326(d)(1) and (2). It held that Valdivias was "deemed to have exhausted all the administrative remedies available to him and to have been deprived of the opportunity for judicial review" because the entry of his removal order was "fundamentally unfair." United States v. Cisneros-Rodriguez, 813 F.3d 748, 756 (9th Cir. 2015).

Accordingly, the district court dismissed the indictment against Valdivias. The United States timely appealed, and we have jurisdiction under 28...