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Pride Without Prejudice: New Decision Reduces Ability for Immigrants to be Made Whole Following Violation of Rights

It appears the federal courts are trying to follow the recent dichotomy that has arisen in the news. For instance, the federal government remains shut down due to the inability of the two parties and the two chambers of the United States Congress to agree on a budget. However, ObamaCare continues to move forward. Moreover, over the weekend, United States Special Forces engaged in special operations to capture alleged terrorist operatives, but while the operation in Libya was successful, the operation in Somalia was not. The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), the western federal appeals court that hears appeals from various federal district courts within its jurisdiction and that hears petitions for review of final orders of removal by the Board of Immigration Appeals regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, now has entered this developing yin-yang fray by issuing today a decision that at first appears to contradict itself.

The decision, United States v. Gomez, concerned a Mexican-citizen man who had been physically deported from the United States on January 20, 2006 because of his not having lawful status in the United States at the time. Although the man also had a couple of criminal convictions, United States Immigration and Customs Enforcement (“ICE”) removed any reference of those in the charging documents it brought against the man to seek his removal from the United States, something that is not unusual when someone is removable anyway regardless of his/her criminal history. The man requested that he see an immigration judge but then subsequently, and according to him without his full knowledge, signed a waiver of rights and agreement to be deported. The man then returned to the United States after having been deported and was located by ICE following his being arrested for yet another criminal matter.

ICE then brought federal criminal charges against the man for illegally reentering the United States after deportation. In federal district court, the Mexican-citizen man argued that he could not be convicted for illegally reentering after deportation because one of the requirements for such a conviction is his having been previously and validly ordered removed. The man’s reasoning was that his removal order was not validly issued because it resulted from a violation of his rights, including his right to see an immigration judge and his right to appeal his removal order. While the federal district court did not agree with the man, the Ninth Circuit on appeal did, at least in part. The Ninth Circuit found that the actions taken by ICE, i.e., first receiving from the man a request to see an immigration judge as was his right but then having him sign a waiver of that right despite his initial request, amounted to the previous removal order’s being invalid.

Nevertheless, and this is the part that continues the pattern of binary events, the Ninth Circuit still upheld the denial of the man’s motion to dismiss the criminal proceeding against him because the violation that led to his previous removal order did not prejudice him, meaning he would have been ordered removed anyway even had he been permitted to see an immigration judge and had he been permitted to appeal his removal order. The case is a classic example of harmless error, i.e., ICE did the man wrong but the end result would have been the same had ICE done the man right.Some would find that such a decision only incentivizes ICE to trample people’s rights in similar situations, but others would find that the decision’s reasoning is an efficient of way of dealing with harmless-error due-process issues.Either way, the decision shows that a simple violation of one’s rights will not pave a way to victory. Victory in immigration cases requires a great deal of effort and precision, and although it may hurt one’s pride to do so, seeking expert assistance may be the only way to achieve it.