Petition for Writ of Certiorari — Carlos Javier Pedroza-Rocha, Petitioner v. United States
Supreme Court briefNov 6, 2019
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No. _________________
In the Supreme Court of the United States
October Term, 2019
CARLOS JAVIER PEDROZA-ROCHA, PETITIONER,
V.
UNITED STATES OF AMERICA
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MAUREEN SCOTT F RANCO
Federal Public Defender
KRISTIN M. KIMMELMAN
Assistant Federal Public Defender
Western District of Texas
727 E. César E. Chávez Blvd., B-207
San Antonio, Texas 78206-1205
(210) 472-6700
(210) 472-4454 (Fax)
Counsel of Record for Petitioner
i
QUESTIONS PRESENTED FOR REVIEW
Carlos Javier Pedroza-Rocha, like many noncitizen defendants, was ordered removed by an immigration judge after being served a document titled
“notice to appear” that did not tell Mr. Pedroza when to appear for removal
proceedings. The statute requires that noncitizens facing removal proceedings
be served a notice to appear with a hearing time. 8 U.S.C. § 1229(a)(1)(G)(i).
The government is trying to prosecute Mr. Pedroza for illegal reentry based on
that putative removal order.
The questions presented are:
1. Did the immigration court lack authority to remove Mr. Pedroza because
he was not served a notice to appear that had a hearing time?
2. In an illegal reentry prosecution, can the defendant attack the jurisdictional basis for a removal order outside the 8 U.S.C. § 1326(d) requirements for a collateral attack? If not, is § 1326(d) unconstitutional?
3. Is the § 1326(d)(1) requirement to exhaust administrative remedies excused when the appeal waiver is not considered or intelligent? If not, is
§ 1326(d) unconstitutional?
No. _________________
In the Supreme Court of the United States
October Term, 2019
CARLOS JAVIER PEDROZA-ROCHA, Petitioner,
V.
UNITED STATES OF AMERICA
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
Petitioner, Carlos Javier Pedroza-Rocha asks that a writ of certiorari
issue to review the opinion and judgment entered by the United States
Court of Appeals for the Fifth Circuit on August 8, 2019.
PARTIES TO THE PROCEEDING
The caption of this case names all parties to the proceeding in the
court whose judgment is sought to be reviewed.
RELATED PROCEEDINGS
All proceedings directly related to the case are as follows:
• United States v. Pedroza-Rocha, No. 3:18-CR-01286-DB (W.D. Tex.
Sept. 21, 2018) (dismissing illegal reentry indictment)
• United States v. Pedroza-Rocha, No. 18-50828 (5th Cir. Aug. 8,
2019) (reversing judgment of the district court)
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ........................................ i
PARTIES TO THE PROCEEDING ..................................................... ii
RELATED PROCEEDINGS................................................................. ii
TABLE OF AUTHORITIES ..................................................................v
OPINION BELOW .................................................................................1
JURISDICTION OF THE SUPREME COURT OF THE UNITED
STATES ..................................................................................................1
CONSTITUTIONAL, STATUTORY, AND REGULATORY
PROVISIONS INVOLVED....................................................................1
STATEMENT .........................................................................................1
REASONS FOR GRANTING THE WRIT ............................................5
I. The decision below is incorrect and violates the separation of
powers. ..............................................................................................5
II. The circuit split over the hearing time requirement for the
notice to appear has revealed deep confusion about agency
authority. ..........................................................................................8
A. Two circuits hold that the statutory definition of a notice
to appear applies to starting a removal proceeding, but
eight circuits and the BIA hold that the regulatory
definition does. ...................................................................9
B. Four circuits and the BIA believe that a notice to appear
is a jurisdictional requirement, but five circuits
disagree. .......................................................................... 11
III. The Fifth Circuit’s restrictions on collaterally attacking
removal orders in illegal reentry prosecutions conflict with this
Court’s precedent and violate due process. ................................. 12
iv
A. Due process requires a defendant be allowed to
challenge the jurisdictional basis of the administrative
order being used to prosecute him. ................................ 12
B. The Fifth Circuit’s rule that an appeal waiver
automatically forecloses a collateral attack conflicts with
this Court’s precedent. .................................................... 14
IV. These issues recur and are exceptionally important............ 16
V. Mr. Pedroza’s case is an ideal vehicle to decide these
issues. ............................................................................................ 18
CONCLUSION .................................................................................... 19
APPENDIX A
United States v. Pedroza-Rocha,
933 F.3d 490 (5th Cir. 2019)
APPENDIX B
U.S. Const. amend. V (Due Process Clause)
8 U.S.C. § 1229
8 U.S.C. § 1326
8 C.F.R. § 1003.13
8 C.F.R. § 1003.14
8 C.F.R. § 1003.15
8 C.F.R. § 1003.18
v
TABLE OF AUTHORITIES
Cases
Ali v. Barr,
924 F.3d 983 (8th Cir. 2019) ..................................................... 10, 11
Banegas Gomez v. Barr,
922 F.3d 101 (2d Cir. 2019) ...................................................... 10, 11
Bowles v. Russell,
551 U.S. 205 (2007) ........................................................................... 6
City of Arlington v. F.C.C.,
569 U.S. 290 (2013) ........................................................................... 5
Estep v. United States,
327 U.S. 114 (1946) ................................................................... 12, 13
Goncalves Pontes v. Barr,
938 F.3d 1 (1st Cir. 2019) ......................................................... 10, 11
Hernandez-Perez v. Whitaker,
911 F.3d 305 (6th Cir. 2018) ..................................................... 10, 11
Karingithi v. Whitaker,
913 F.3d 1158 (9th Cir. 2019) ................................................... 10, 11
Lopez v. Barr,
925 F.3d 396 (9th Cir. 2019) ........................................................... 10
Lopez-Munoz v. Barr,
__ F.3d __, No. 19-9510, 2019 WL 5691870
(10th Cir. Nov. 4, 2019)................................................................... 11
Matter of Bermudez-Cota,
27 I. & N. Dec. 441 (BIA 2018) ................................................. 10, 11
Nkomo v. U.S. Att’y Gen.,
930 F.3d 129 (3d Cir. 2019) ...................................................... 10, 11
vi
Ortiz-Santiago v. Barr,
924 F.3d 956 (7th Cir. 2019) ................................................. 9, 10, 11
Pereira v. Sessions,
138 S. Ct. 2105 (2018) ..............................................................passim
Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148 (11th Cir. 2019) ................................................... 9, 11
Pierre-Paul v. Barr,
930 F.3d 684 (5th Cir. 2019) ............................................. 4, 7, 10, 11
Santos-Santos v. Barr,
917 F.3d 486 (6th Cir. 2019) ........................................................... 10
United States v. Cortez,
930 F.3d 350 (4th Cir. 2019) ..................................................... 10, 11
United States v. Cotton,
535 U.S. 625 (2002) ........................................................................... 6
United States v. Mendoza-Lopez,
481 U.S. 828 (1987) ....................................................... 12, 14, 15, 16
United States v. Pedroza-Rocha,
933 F.3d 490 (5th Cir. 2019) ............................................... 1, 4, 5, 14
United States v. Sosa,
387 F.3d 131 (2d Cir. 2004) ............................................................ 15
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) ........................................................................... 8
Constitutional Provision
U.S. Const. amend. V (Due Process Clause) ....................................... 1
Statutes
8 U.S.C. § 1225(b)(1) ............................................................................. 6
8 U.S.C. § 1228(b) ................................................................................. 6
vii
8 U.S.C. § 1229 .................................................................................. 1, 7
8 U.S.C. § 1229(a) ............................................................................. 3, 4
8 U.S.C. § 1229(a)(1) ....................................................................passim
8 U.S.C. § 1229(a)(1)(G)(i) ............................................................. i, 2, 5
8 U.S.C. § 1229b(d)(1) ........................................................................... 4
8 U.S.C. § 1231(a)(5) ............................................................................. 3
8 U.S.C. § 1326 .......................................................................... 1, 14, 15
8 U.S.C. § 1326(a) ......................................................................... 12, 13
8 U.S.C. § 1326(d) ........................................................................passim
8 U.S.C. § 1326(d)(1) .......................................................................... i, 5
18 U.S.C. § 3231 .................................................................................... 3
28 U.S.C. § 1254(1) ............................................................................... 1
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 § 309(c)(2), Pub. L. No. 104-208, 110 Stat 3009 (1996) .......... 7
Rule
Sup. Ct. R. 13.1 ..................................................................................... 1
Regulations
8 C.F.R. § 1003.13 ......................................................................... 1, 2, 7
8 C.F.R. § 1003.14 ................................................................................. 1
8 C.F.R. § 1003.14(a)..................................................................... 2, 4, 7
8 C.F.R. § 1003.15 ................................................................................. 1
8 C.F.R. § 1003.15(b)......................................................................... 6, 8
viii
8 C.F.R. § 1003.15(c) ............................................................................. 8
8 C.F.R. § 1003.18 ............................................................................. 1, 8
8 C.F.R. § 1003.18(b)............................................................................. 6
8 C.F.R. § 1239.1 ................................................................................... 7
Other Authorities
Immigration and Naturalization Service and EOIR,
Proposed Rules, Inspection and Expedited Removal of Aliens,
62 Fed. Reg. 444-01, 1997 WL 1514 (Jan. 3, 1997) ..................... 7, 8
TRAC-Immigration, Immigration Prosecutions for 2019
(Oct. 31, 2019) ................................................................................. 17
U.S. Dep’t of Justice, Executive Office for Immigration Review,
Statistics Yearbooks (2004, 2009, 2014, 2018) .............................. 17
U.S. Dep’t of Justice, U.S. Marshals Service, FY 2020 Performance
Budget: Federal Prisoner Detention Appropriation (Mar. 2019) . 18
U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses
(Fiscal Year 2018) ........................................................................... 17
1
OPINION BELOW
A copy of the opinion of the court of appeals, United States v.
Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019), is attached to this
petition as Appendix A.
JURISDICTION OF THE SUPREME COURT OF THE
UNITED STATES
The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on August 8, 2019. This
petition is filed within 90 days after entry of judgment. See Sup.
Ct. R. 13.1. The Court has jurisdiction to grant certiorari under 28
U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY, AND REGULATORY
PROVISIONS INVOLVED
The texts of the following constitutional, statutory, and regulatory provisions involved are reproduced in Appendix B:
• U.S. Const. amend. V (Due Process Clause)
• 8 U.S.C. §§ 1229, 1326
• 8 C.F.R. §§ 1003.13, 1003.14, 1003.15, 1003.18
STATEMENT
Putative removal proceedings. In 2003, Mr. Pedroza entered the United States without permission. Immigration authorities detained him and gave him a document titled “Notice to Appear” alleging he was inadmissible.
2
The statute requires that noncitizens in removal proceedings
be served with a notice to appear specifying the “time and place at
which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i).
The regulations further provide that “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when” the Department of Homeland Security files a notice to appear with the
immigration court. 8 C.F.R. § 1003.14(a); see also 8 C.F.R.
§ 1003.13.
But the document given to Mr. Pedroza and filed in immigration court lacked a hearing time. It stated he must appear before
an immigration judge “on a date to be set at a time to be set[.]” The
court later issued a notice of hearing on May 23, 2003, setting the
removal hearing for May 27, 2003.
Mr. Pedroza, who was detained and did not speak English, appeared at the removal hearing without counsel. The immigration
judge did not explain jurisdictional requirements or the scope of
his authority. The judge did not ask if Mr. Pedroza had received a
copy of his appeal rights but said, “If I make a decision that you
disagree with, you have the right to appeal my decision to a higher
court called the Board of Immigration Appeals.” The judge did not
explain Mr. Pedroza could appeal whether the judge had power to
3
decide his case or that the statute requires the notice to appear to
have a hearing time.
The immigration judge found Mr. Pedroza could be deported as
charged. When asked if he wanted to appeal, Mr. Pedroza accepted
the deportation. The judge entered an order removing Mr. Pedroza
to Mexico, and immigration officers took him to Mexico later that
day.
Illegal reentry proceedings. In May 2018, Mr. Pedroza was
charged with illegal reentry. 1 The indictment alleged he was previously removed from the United States on January 7, 2016—when
the 2003 putative removal order was reinstated. See 8 U.S.C.
§ 1231(a)(5).
In June 2018, this Court issued Pereira v. Sessions, holding
that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a
‘notice to appear under section 1229(a)’ and therefore does not trigger the stop-time rule.” 138 S. Ct. 2105, 2113–14 (2018). Noncitizens across the country began litigating whether the lack of a hearing time has consequences outside the context of the rule for cancellation of removal that the period of physical presence ends when
1 The district court exercised jurisdiction under 18 U.S.C. § 3231.
4
the noncitizen is served a notice to appear under § 1229(a). See 8
U.S.C. § 1229b(d)(1).
Mr. Pedroza moved to dismiss the illegal reentry indictment,
arguing the 2003 removal proceedings were flawed because no notice to appear started the proceedings. He argued, based on Pereira, that the putative notice to appear issued in his case failed to
vest jurisdiction with the immigration judge. See § 1229(a)(1); 8
C.F.R. § 1003.14(a). Thus, he was not “removed” as a matter of law
and could meet the requirements to collaterally attack the putative
removal order. The district court granted the motion.
Pedroza was released, and immigration officials took him to
Mexico. The government appealed.
The Fifth Circuit reversed. The court held that the omission of
the hearing time did not make the notice to appear defective because the regulatory definition of the notice to appear (which does
not require a hearing time), not the statutory definition (which
does), controls. Pedroza-Rocha, 933 F.3d at 497 (citing Pierre-Paul
v. Barr, 930 F.3d 684, 689–90 (5th Cir. 2019)). Even if the notice
to appear was defective, the later notice of hearing cured it. Pedroza-Rocha, 933 F.3d at 497. And the regulation requiring a notice
to appear to be filed with the immigration court was not jurisdictional. Id. at 497–98. The court also held that a void removal order
5
can be challenged only through § 1326(d), and that Pedroza cannot
satisfy § 1326(d)(1)’s requirement to exhaust administrative remedies because the immigration judge advised him of his right to
appeal, and he did not appeal. Id. at 498.
REASONS FOR GRANTING THE WRIT
I. The decision below is incorrect and violates the
separation of powers.
An agency’s power to act comes from Congress. City of Arlington v. F.C.C., 569 U.S. 290, 298 (2013). Courts must “tak[e] seriously, and apply[ ] rigorously, in all cases, statutory limits on agencies’ authority.” Id. at 307.
The notice to appear is such a limit. Congress specified that the
notice to appear must be served on every noncitizen in removal
proceedings. § 1229(a)(1). It also required that a notice to appear
must have a hearing time. § 1229(a)(1)(G)(i). The omission of a
hearing time cannot be cured; without it, the document is not a
notice to appear. Pereira, 138 S. Ct. at 2116.
Without a notice to appear, the immigration court lacks authority to remove a noncitizen. § 1229(a)(1). That is because service
of the notice to appear is necessary for subject matter jurisdiction—the immigration judge’s authority to preside over cases. See
6
United States v. Cotton, 535 U.S. 625, 630 (2002) (describing subject matter jurisdiction as “the court’s statutory or constitutional
authority to hear the case” (cleaned up)).
Immigration judges only have authority to decide cases in
which the Department of Homeland Security chooses to serve a
notice to appear. § 1229(a)(1). In contrast, immigration officials—
not judges—can rule on a noncitizen’s deportability and inadmissibility through certain expedited procedures when no notice to appear is filed. See, e.g., 8 U.S.C. §§ 1225(b)(1), 1228(b). The notice to
appear confers subject matter jurisdiction by defining the cases
over which immigration judges preside. See Bowles v. Russell, 551
U.S. 205, 213 (2007) (“the notion of subject-matter jurisdiction obviously extends to classes of cases ... falling within a court’s adjudicatory authority” (cleaned up)).
The government sought to avoid this straightforward application of § 1229(a)(1) and Pereira by arguing that the regulatory definition of a notice to appear, not the statutory one, applies to the
notice to appear required to start the removal proceeding. The regulations do not require a hearing time. 8 C.F.R. §§ 1003.15(b),
1003.18(b).
The Fifth Circuit agreed. By ignoring the jurisdictional import
of § 1229(a)(1) and finding “no glue” between the regulations and
7
§ 1229(a)(1), the Fifth Circuit distinguished Pereira and approved
a two-step procedure: first a notice to appear with no hearing time,
and then a notice of hearing. Pierre-Paul, 930 F.3d at 691.
But there is glue binding the statute to the regulations. Congress’s transitional instructions recognize the jurisdictional significance of the notice to appear. Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, § 309(c)(2), Pub. L.
No. 104-208, 110 Stat 3009 (1996) (making certain documents
“valid as if provided under [§ 1229] (as amended by this subtitle)
to confer jurisdiction on the immigration judge”). And the regulations incorporate the statutory jurisdictional limit by providing
that a charging document such as a notice to appear vests jurisdiction with the immigration court. §§ 1003.13, 1003.14(a); see 8
C.F.R. § 1239.1.
The agency even acknowledged the need to “implement[ ] the
language of the amended Act indicating that the time and place of
the hearing must be on the Notice to Appear” and committed to
providing a hearing time in the notices to appear “as fully as possible by April 1, 1997[.]” Immigration and Naturalization Service
and EOIR, Proposed Rules, Inspection and Expedited Removal of
Aliens, 62 Fed. Reg. 444-01, 1997 WL 1514 (Jan. 3, 1997). But the
agency created an exception that hearing times could be omitted if
8
providing them was not practicable, such as when “automated
scheduling [is] not possible … (e.g., power outages, computer
crashes/downtime).” Id. at 449; see 8 C.F.R. §§ 1003.15(b), (c);
1003.18.
Two decades later, “almost 100 percent of notices to appear
omit the time and date of proceeding[.]” Pereira, 138 S. Ct. at 2111
(cleaned up). The “where practicable” regulatory exception swallowed the statutory rule of including the hearing time in the notice
to appear. And the Fifth Circuit sanctioned the agency’s attempt
to rewrite the statute. This violates the separation of powers. Utility Air Regulatory Group v. EPA, 573 U.S. 302, 327 (2014) (agencies cannot “revise clear statutory terms that turn out not to work
in practice”).
II. The circuit split over the hearing time requirement for
the notice to appear has revealed deep confusion about
agency authority.
Eleven circuits, as well as the Board of Immigration Appeals
(BIA), have weighed in on the proper definition of a “notice to appear” and the effect of a putative notice missing a hearing time.
The circuits are split on whether the statutory or regulatory definition of a notice to appear governs, and whether a notice to appear
is a jurisdictional requirement or a claims-processing rule.
9
A. Two circuits hold that the statutory definition of a
notice to appear applies to starting a removal
proceeding, but eight circuits and the BIA hold that
the regulatory definition does.
The Seventh and Eleventh Circuits, applying this Court’s reasoning in Pereira, interpret § 1229(a)(1) as requiring the notice to
appear used to begin removal proceedings to have a hearing time.
The Seventh Circuit rejects as “absurd” the government’s argument that the notice to appear referenced in the regulations is not
the same notice to appear defined in the statute. Ortiz-Santiago v.
Barr, 924 F.3d 956, 961–62 (7th Cir. 2019). The Eleventh Circuit
explains that, per § 1229(a)(1), Congress intended for service of the
notice to appear to “operate as the point of commencement for removal proceedings[,]” and “the agency was not free to redefine the
point of commencement[.]” Perez-Sanchez v. U.S. Att’y Gen., 935
F.3d 1148, 1154 (11th Cir. 2019).
The First, Second, Third, Fourth, Fifth, Sixth, Eighth, and
Ninth Circuits find that the regulatory definition of a notice to appear, which does not require a hearing time, applies for beginning
10
removal proceedings. 2 Several circuits also hold that a later notice
of hearing cures any statutory defect. See Pierre-Paul, 930 F.3d at
690; but see Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019) (a
defective § 1229(a)(1) notice to appear cannot be cured by a notice
of hearing for the stop-time rule).
In finding that the regulatory definition controls, the First,
Sixth, and Ninth Circuits specifically defer to the BIA’s reasoning.
Goncalves Pontes, 938 F.3d at 7; Karingithi, 913 F.3d at 1161; Hernandez-Perez v. Whitaker, 911 F.3d 305, 312 (6th Cir. 2018). The
BIA interpreted Pereira narrowly, limiting it to the stop-time rule,
and approved the two-step process of notice to appear without a
hearing time followed by a notice of hearing. Matter of BermudezCota, 27 I. & N. Dec. 441, 443–47 (BIA 2018). The Seventh Circuit,
however, sharply criticized reliance on the BIA’s decision, which it
found “brushed too quickly over the Supreme Court’s rationale in
Pereira” and failed to consider significant legislative history. OrtizSantiago, 924 F.3d at 962.
2 See Goncalves Pontes v. Barr, 938 F.3d 1, 6–7 (1st Cir. 2019); Bane-
gas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019); Nkomo v. U.S.
Att’y Gen., 930 F.3d 129, 133–34 (3d Cir. 2019); United States v. Cortez,
930 F.3d 350, 363 (4th Cir. 2019); Pierre-Paul, 930 F.3d at 690; SantosSantos v. Barr, 917 F.3d 486, 490–91 (6th Cir. 2019); Ali v. Barr, 924
F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158,
1161–62 (9th Cir. 2019).
11
B. Four circuits and the BIA believe that a notice to
appear is a jurisdictional requirement, but five
circuits disagree.
The Second and Eighth Circuits hold that a notice to appear,
as defined by the regulations, confers “jurisdiction” on the immigration court. Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at
112. The Sixth and Ninth Circuits adopt similar reasoning after
deferring to the BIA. Hernandez-Perez, 911 F.3d at 314–15; Karingithi, 913 F.3d at 1161; see Bermudez-Cota, 27 I. & N. Dec. at
447.
The Fourth and Fifth Circuits disagree and find the regulations provide a claims-processing, not jurisdictional, rule. Cortez,
930 F.3d at 362; Pierre-Paul, 930 F.3d at 692. The Seventh and
Eleventh Circuits also hold that the statutory time requirement is
a claims-processing, not a jurisdictional rule. Perez-Sanchez, 935
F.3d at 1154; Ortiz-Santiago, 924 F.3d at 963. Similarly, the Tenth
Circuit holds that neither the statute nor the regulations provide
a jurisdictional rule. Lopez-Munoz v. Barr, __ F.3d __, No. 19-9510,
2019 WL 5691870 at *2–4 (10th Cir. Nov. 4, 2019).
The First and Third Circuits reject that § 1229(a)(1) has jurisdictional significance but do not decide whether the regulations do.
Goncalves Pontes, 938 F.3d at 7 n.3; Nkomo, 930 F.3d at 134.
12
In light of the fractured reasoning of the circuits’ decisions on
the jurisdictional significance of the statutory and regulatory definitions of “Notice to Appear,” certiorari should be granted.
III. The Fifth Circuit’s restrictions on collaterally attacking
removal orders in illegal reentry prosecutions conflict
with this Court’s precedent and violate due process.
The offense of illegal reentry depends on a determination made
in an administrative proceeding. § 1326(a); United States v. Mendoza-Lopez, 481 U.S. 828, 837–38 (1987). The government must
prove the defendant is a noncitizen who “has been … removed”
from the United States and later reenters the United States without permission. § 1326(a). Section 1326(d) provides that a defendant “may not challenge the validity of the deportation order … unless” the defendant shows exhaustion of administrative remedies,
deprivation of judicial review, and fundamental unfairness.
A. Due process requires a defendant be allowed to
challenge
the
jurisdictional
basis
of
the
administrative order being used to prosecute him.
This Court considered the use of an administrative order to impose criminal sanctions when selective service registrants, whose
military inductions were ordered by local boards, were prosecuted
for refusing to be inducted into the military. Estep v. United States,
327 U.S. 114 (1946). Even though the statute did not specify that
defendants could collaterally attack those induction orders, the
13
Court could not “believe that Congress intended that criminal
sanctions were to be applied to orders issued by local boards no
matter how flagrantly they violated the rules and regulations
which define their jurisdiction.” Id. at 121. The Court refused to
resolve any statutory ambiguity against the accused, noting that
“[w]e are dealing here with a question of personal liberty.” Id. at
122.
Here, too, we are dealing with a question of personal liberty
and an administrative agency that acted outside the authority defining its jurisdiction. Congress limits any challenge to the “validity of the deportation order” in § 1326(d), but that cannot be read
to remove the government’s burden to prove that a defendant has
been removed. § 1326(a). Just as a notice to appear without a hearing time is not a notice to appear, Pereira, 138 S. Ct. at 2116, a
removal order entered without jurisdiction is not removal order.
Alternatively, § 1326(d) is unconstitutional if it prevents a defendant from challenging the jurisdictional validity of the removal
order. To comport with due process, Mr. Pedroza must be able to
challenge whether the immigration court lacked jurisdiction even
if he cannot satisfy the § 1326(d) criteria. The Fifth Circuit’s decision to the contrary conflicts with this Court’s precedent in Estep.
14
B. The Fifth Circuit’s rule that an appeal waiver
automatically forecloses a collateral attack conflicts
with this Court’s precedent.
The Fifth Circuit mechanically found that an appeal waiver
meant that Mr. Pedroza failed to exhaust administrative remedies
and could not collaterally attack his removal order. Pedroza-Rocha, 933 F.3d at 498. That conflicts with Mendoza-Lopez.
Mendoza-Lopez addressed a former version of § 1326 that
lacked a provision for collateral attack of the removal order. 481
U.S. at 835–36. This Court held that “a collateral challenge to the
use of a deportation proceeding as an element of a criminal offense
must be permitted where the deportation proceeding effectively
eliminates the right of the alien to obtain judicial review[.]” Id. at
839. Otherwise, the statute offends due process. Id. at 838–39.
The Court found that the Mendoza-Lopez noncitizens did not
have an opportunity for judicial review—even though they were
informed of their right to appeal and waived appeal. Id. at 840. 3
The appeal waivers were not “considered or intelligent” because
the immigration judge “failed to advise respondents properly of
their eligibility to apply for suspension of deportation.” Id. They
did not know what they were giving up by failing to appeal. The
3 See also Mendoza-Lopez, 481 U.S. at 845 (Rehnquist, C.J., dissent-
ing); id. at 849 (Scalia, J., dissenting).
15
Court held that the “Government may not, therefore, rely on those
orders as reliable proof of an element of a criminal offense.” Id.
Congress tried to codify Mendoza-Lopez in § 1326(d). United
States v. Sosa, 387 F.3d 131, 136 (2d Cir. 2004). Section 1326(d)
does not state that invalid appeal waivers—ones not considered or
intelligent—excuse the exhaustion requirement. But that is not
the end of the story. Cf. id. at 837 (“That Congress did not intend
the validity of the deportation order to be contestable in a § 1326
prosecution does not end our inquiry.”). Such an exception is necessary for § 1326(d) to comport with due process. Id. at 840.
As the Second Circuit explains, “[t]here was almost certainly
no administrative exhaustion in Mendoza-Lopez itself, yet the
Court held that collateral review of the underlying deportation order was constitutionally required.” Sosa, 387 F.3d at 136. It “would
offend the principles enunciated in Mendoza-Lopez not to excuse
the administrative exhaustion requirement” when a noncitizen
waived appeal without being informed of his right to apply for relief. Id. at 137.
Here, the only information Mr. Pedroza received about his
right to appeal was from the immigration judge’s oral explanation
that, “If I make a decision that you disagree with, you have the
right to appeal my decision to a higher court called the Board of
16
Immigration Appeals.” The judge did not advise Pedroza that he
could appeal the judge’s action of simply presiding over the removal proceeding even though the putative notice to appear filed
lacked a hearing time. Without knowing that the judge lacked jurisdiction, or that Mr. Pedroza could make such an argument, the
appeal waiver was “not the result of considered judgment[.]” Mendoza-Lopez, 481 U.S. at 840.
Because the appeal waiver was not considered or intelligent,
Mr. Pedroza must be allowed to challenge the putative removal order in this criminal proceeding. The Fifth Circuit’s decision failing
to analyze the validity of Mr. Pedroza’s waiver conflicts with Mendoza-Lopez and due process.
IV. These issues recur and are exceptionally important.
For decades, immigration authorities ignored the statutory requirement to include a hearing time in the notice to appear. In the
past two decades, well over 200,000 notices to appear were filed on
17
average per year. 4 Most of those notices lacked hearing times. Pereira, 138 S. Ct. at 2111. As a result, millions of people have been
deported by an agency without authority to do so.
Many of those removed came back unlawfully. Illegal reentry
continues to be the most prosecuted federal felony. 5 In fiscal year
2018, over 18,000 people were sentenced for illegal reentry. 6 In the
Western District of Texas alone, at least 136 defendants have challenged their illegal reentry prosecutions in the last year because
the underlying putative notice to appear lacked a hearing time.
Many others chose to forgo motions to dismiss and plead guilty.
4 See U.S. Dep’t of Justice, Executive Office for Immigration Review
(EOIR), Statistics Yearbook FY 2018, at 7, https://www.justice.gov/eoir/file/1198896/download; U.S. Dep’t of Justice, EOIR, FY
2013 Statistics Yearbook, at A7 (Apr. 2014), https://www.justice.gov/sites/default/files/eoir/legacy/2014/04/16/fy13syb.pdf; U.S. Dep’t
of Justice, EOIR, FY 2008 Statistical Year Book, at B1 (Mar. 2009),
https://www.justice.gov/sites/default/files/eoir/legacy/2009/03/27/fy08syb.pdf; U.S. Dep’t of Justice, EOIR, FY 2003 Statistical Year Book, at B2 (Apr. 2004), https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/18/fy03syb.pdf.
5 TRAC-Immigration, Immigration Prosecutions for 2019 (Oct. 31,
2019), https://tracfed.syr.edu/results/9x705dbb47e5a0.html.
6 U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses
(Fiscal Year 2018), https://www.ussc.gov/sites/default/files/pdf/researchand-publications/quick-facts/Illegal_Reentry_FY18.pdf.
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These prosecutions not only cost defendants their liberty, taxpayers pay approximately $27,000 to detain a defendant for the average 10-month sentence. 7
The number affected militates against leaving the agency’s deliberate decades-long violation of a congressional directive unchecked. Otherwise agencies will continue to ignore Congress and
upend the separation and balance of powers.
V. Mr. Pedroza’s case is an ideal vehicle to decide these
issues.
Mr. Pedroza challenged his prior removal order from the beginning of this criminal case, and the district court and the Fifth Circuit addressed the questions presented. His case presents an ideal
opportunity to review these issues that affect the liberty of countless defendants.
7 Id.; U.S. Dep’t of Justice, U.S. Marshals Service, FY 2020 Perfor-
mance Budget: Federal Prisoner Detention Appropriation 19 (Mar.
2019), https://www.justice.gov/jmd/page/file/1144161/download (daily
non-federal facility cost in fiscal year 2018 was $90.17).
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CONCLUSION
FOR THESE REASONS, Mr. Pedroza requests that this Honorable
Court grant a writ of certiorari.
Respectfully submitted.
MAUREEN SCOTT FRANCO
Federal Public Defender
Western District of Texas
727 E. César E. Chávez Blvd., B-207
San Antonio, Texas 78206
Tel.: (210) 472-6700
Fax: (210) 472-4454
s/ Kristin M. Kimmelman
KRISTIN M. KIMMELMAN
Assistant Federal Public Defender
Counsel of Record for Petitioner
DATED: November 6, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.