Petition for Writ of Certiorari — Luis Fernando Ramirez, Petitioner v. United States

No. _________________

In the Supreme Court of the United States

LUIS FERNANDO RAMIREZ, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MAUREEN SCOTT F RANCO

Federal Public Defender

BRADFORD W. BOGAN

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

Luis Fernando Ramirez was ordered removed by an immigration judge after being served a document titled “notice to appear” that did not tell him when

to appear for removal proceedings, contrary to a statute that requires this information. See 8 U.S.C. § 1229(a)(1)(G)(i). Here, the Government relied on that

removal to prosecute Ramirez for illegal reentry based on that putative removal order. The district court denied Ramirez’s motion to dismiss the indictment and found him guilty, and the court of appeals affirmed the conviction.

The questions presented are:

1. Did the immigration court lack authority to remove Ramirez 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?

No. _________________

In the Supreme Court of the United States

LUIS FERNANDO RAMIREZ, Petitioner,

V.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

Petitioner, Luis Fernando Ramirez 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 March 6, 2020.

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.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........................................ i

PARTIES TO THE PROCEEDING ..................................................... ii

TABLE OF AUTHORITIES ..................................................................v

OPINION BELOW .................................................................................1

JURISDICTION OF THE SUPREME COURT OF THE UNITED

STATES ..................................................................................................1

CONSTITUTIONAL PROVISION, STATUTES, AND

REGULATIONS 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. ...................................................................8

B. Four circuits and the BIA believe that a notice to appear

is a jurisdictional requirement, but five circuits

disagree. .......................................................................... 10

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. .................................. 11

IV. These issues recur and are exceptionally important............ 13

iv

CONCLUSION .................................................................................... 16

v

TABLE OF AUTHORITIES

Cases

Ali v. Barr,

924 F.3d 983 (8th Cir. 2019) ....................................................... 9, 10

Banegas Gomez v. Barr,

922 F.3d 101 (2d Cir. 2019),

cert. denied, 140 S. Ct. 954 (2020) ............................................. 9, 10

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. (1st. Cir. 2019) ............................................................10, 11

Hernandez-Perez v. Whitaker,

911 F.3d 305 (6th Cir. 2018) ............................................................ 10

Karingithi v. Barr,

913 F.3d 1158 (9th Cir. 2019),

cert. denied, 140 S. Ct. 1106 (2020)................................................ 10

Lopez-Munoz v. Barr,

941 F.3d 1013 (10th Cir. 2019) ........................................................11

Matter of Bermudez-Cota,

27 I. & N. Dec. 441 (BIA 2018) ....................................................... 10

Nkomo v. U.S. Att’y Gen.,

930 F.3d 129 (3d Cir. 2019),

cert. denied (U.S. May 4, 2020) (No. 19-957) ..............................9, 11

Ortiz-Santiago v. Barr,

924 F.3d 956 (7th Cir. 2019) ..................................................9, 10, 11

vi

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 (2019),

cert. denied (U.S. Apr. 27, 2020) (No. 19-779) ....................4, 6, 9, 11

Santos-Santos v. Barr,

917 F.3d 486 (6th Cir. 2019) ............................................................ 9

United States v. Cortez,

930 F.3d 350 (4th Cir. 2019) ....................................................... 9, 10

United States v. Cotton,

535 U.S. 625 (2002) ........................................................................... 5

United States v. Mendoza-Lopez,

481 U.S. 828 (1987) ..........................................................................11

United States v. Pedroza-Rocha,

933 F.3d 490 (5th Cir. 2019),

cert. denied (U.S. May 18, 2020) (No. 19-6588) ............................... 4

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ........................................................................... 8

Constitutional Provisions

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

8 U.S.C. § 1229 .................................................................................. 1, 7

8 U.S.C. § 1229(a) ................................................................................. 3

vii

8 U.S.C. § 1229(a)(1)(G)(i) ................................................................. i, 5

8 U.S.C. § 1326 .................................................................................. 1, 3

8 U.S.C. § 1326(a) ..........................................................................11, 13

8 U.S.C. § 1326(d) ........................................................................passim

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) ...................................... 6

Rules

Sup. Ct. R. 13.1 ..................................................................................... 1

Sup. Ct. R. 13.5 ..................................................................................... 1

Regulations

8 C.F.R. § 1003.13 ............................................................................. 1, 7

8 C.F.R. § 1003.14 ................................................................................. 1

8 C.F.R. § 1003.14(a) ......................................................................... 3, 7

8 C.F.R. § 1003.15 ................................................................................. 1

8 C.F.R. § 1003.15(b) ......................................................................... 6, 7

8 C.F.R. § 1003.15(c) ............................................................................. 7

8 C.F.R. § 1003.18 ............................................................................. 1, 7

8 C.F.R. § 1003.18(b) ............................................................................. 6

8 C.F.R. § 1239.1 ................................................................................... 7

viii

Other Authorities

Dep’t of Justice, U.S. Marshals Service,

FY 2020 Performance Budget: Federal Prisoner Detention

Appropriation (Mar. 2019) .............................................................. 15

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

TRAC-Immigration, Immigration Prosecutions for 2019 (Oct. 31,

2019) ................................................................................................ 14

U.S. Dep’t of Justice, Executive Office for Immigration Review,

Statistics Yearbook .......................................................................... 14

U.S. Sentencing Comm’n, Quick Facts: Illegal Reentry Offenses

(Fiscal Year 2018) ............................................................................ 14

1

OPINION BELOW

A copy of the opinion of the court of appeals, United States v.

Ramirez, No. 19-50525 (5th Cir. Mar. 6, 2020) (per curiam) (unpublished), is attached to this petition as Pet. App. 1a–2a.

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 March 6, 2020. On

March 19, 2020, the Court extended the deadline for filing a petition for writ of certiorari due after that date to 150 days from the

date of the lower court’s judgment. See also Sup. Ct. R. 13.1, 13.5.

This petition is filed within that time. The Court has jurisdiction

to grant certiorari under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION, STATUTES, AND

REGULATIONS INVOLVED

The following are reproduced at Pet. App. 3a–19a:

•

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

Ramirez is a citizen of Mexico. In January 2013, immigration

authorities served him with a document titled “Notice to Appear”

alleging that he was removable from the United States as an alien

2

who had entered the country at an unknown place and unknown

date and had not been admitted or paroled into the country after

inspection by an immigration officer, and that he had been convicted of possession of a controlled substance in state court. The

notice ordered him “to appear before an immigration judge of the

United States Department of Justice at: TEXAS DOC—

HUNTSVILLE 7405 C-2 Highway 75 Huntsville TEXAS 77340 on

a date to be set at a time to be set to show why you should not be

removed from the United States based on the charge(s) set forth

above.” Ramirez was in the custody of the Texas Department of

Criminal Justice when he was served with the NTA. On July 9,

2013, an immigration judge held a removal hearing by video conference. The judge found that, based on Ramirez’s admissions, he

was removable as charged in the NTA. For that reason, the judge

ordered that Ramirez be removed to Mexico. The order reflects that

Ramirez “made no application for relief from removal” and that he

waived appeal. Ramirez was removed to Mexico on July 16, 2013.

The removal order was reinstated in 2016, after Ramirez served a

sentence for illegal reentry.

On September 26, 2018, Border Patrol agents found Ramirez

in Brewster County, in the Western District of Texas. He had not

received permission from the Attorney General or the Secretary of

3

Homeland Security to reapply for admission to the United States.

Ramirez was charged in a one-count indictment with illegally reentering the United States after having been removed, in violation of

8 U.S.C. § 1326.

Ramirez moved to dismiss the indictment. Relying on the Supreme Court’s decision in Pereira v. Sessions, he argued that the

notice to appear did not vest the immigration court with jurisdiction because it did not include the date and time of the removal

proceedings, as required by statute. See Pereira v. Sessions, 138 S.

Ct. 2105, 2113–14 (2018) (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 [8

U.S.C. §] 1229(a)”); 8 C.F.R. § 1003.14(a) (“Jurisdiction vests, and

proceedings before an Immigration Judge commence, when a

charging document is filed with the Immigration Court[.]”). For

that reason, Ramirez’s removal proceedings were void ab initio and

he was not “removed” as a matter of law. He also argued he could

meet the requirements to collaterally attack the putative removal

order under 8 U.S.C. § 1326(d).

The district court denied Ramirez’s motion to dismiss. The

court assumed, without deciding, that the defect in the NTA af-

4

fected the immigration court’s jurisdiction in the 2013 removal proceedings. But the court also concluded that, even if the NTA was

jurisdictionally defective, Ramirez could not satisfy the remaining

requirements for collaterally attacking a removal under 8 U.S.C.

§ 1326(d).

Ramirez pleaded guilty conditionally, expressly reserving his

right to appeal the district court’s denial of his motion to dismiss.

The court sentenced him to 46 months’ imprisonment and three

years’ supervised release.

Ramirez appealed. The Fifth Circuit summarily affirmed

Ramirez’s conviction, based on its decisions in United States v.

Pedroza-Rocha, 933 F.3d 490 (2019), cert. denied (U.S. May 18,

2020) (No. 19-6588); and Pierre-Paul v. Barr, 930 F.3d 684 (2019),

cert. denied (U.S. Apr. 27, 2020) (No. 19-779). Pet. App. 1a–2a. In

Pedroza-Rocha, the Fifth Circuit held that that the notice to appear was not rendered deficient because it did not specify a date

for the hearing, that any such alleged deficiency had not deprived

the immigration court of jurisdiction, and that Pedroza-Rocha

could not collaterally attack his notice to appear without first exhausting his administrative remedies. 933 F.3d at 496–98.

5

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 Arling-

ton 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 v. Sessions, 138 S. Ct. 2105, 2116 (2018).

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 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—

6

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)).

In Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), cert. denied

(U.S. Apr. 27, 2020) (No. 19-779), the Fifth Circuit held 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). In finding “no glue” between the regulations and § 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.

7

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

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

8

(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. Util-

ity 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.

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) to require a hearing time

in a notice to appear for removal proceedings. The Seventh Circuit

rejects as “absurd” the government’s argument that the notice to

9

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 in

§ 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 hold that the regulatory definition of a notice to appear, which does not require a hearing time, applies for beginning

removal proceedings. 1 Several circuits also hold that a later notice

of hearing cures any statutory defect. See Pierre-Paul, 930 F.3d at

690.

1 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), cert. denied, 140

S. Ct. 954 (2020); Nkomo v. U.S. Att’y Gen., 930 F.3d 129, 133–34 (3d

Cir. 2019), cert. denied (U.S. May 4, 2020) (No. 19-957); United States v.

Cortez, 930 F.3d 350, 363 (4th Cir. 2019); Pierre-Paul, 930 F.3d at 690;

Santos-Santos v. Barr, 917 F.3d 486, 490–91 (6th Cir. 2019); Ali v. Barr,

924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Barr, 913 F.3d 1158,

1161–62 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020).

10

In finding that the regulatory definition controls, the First,

Sixth, and Ninth Circuits defer to the BIA’s reasoning. Goncalves

Pontes, 938 F.3d at 7; Karingithi, 913 F.3d at 1161; HernandezPerez 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 Bermudez-Cota,

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.

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; Ka-

ringithi, 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,

11

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, 941 F.3d 1013, 1016–17

(10th Cir. 2019).

The First and Third Circuits also agree that § 1229(a)(1) is not

jurisdictional, but have not decided whether the regulations are.

Goncalves Pontes, 938 F.3d at 7 n.3; Nkomo, 930 F.3d at 134.

Given 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. Men-

doza-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 defend-

12

ant “may not challenge the validity of the deportation order … unless” the defendant shows exhaustion of administrative remedies,

deprivation of judicial review, and fundamental unfairness.

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

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

13

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, a defendant 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.

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

14

average per year. 2 Most of those notices lacked hearing times. Pe-

reira, 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. 3 In fiscal year

2018, over 18,000 people were sentenced for illegal reentry. 4 These

prosecutions not only cost defendants their liberty, taxpayers pay

2 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.

3 TRAC-Immigration, Immigration Prosecutions for 2019 (Oct. 31,

2019), https://tracfed.syr.edu/results/9x705dbb47e5a0.html.

4 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.

15

approximately $27,000 to detain a defendant for the average 10month sentence. 5

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.

Id.;

U.S. Dep’t of Justice, U.S. Marshals Service,

FY 2020 Performance 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).

5

16

CONCLUSION

FOR THESE REASONS, Ramirez asks this Honorable Court to

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/ Bradford W. Bogan

BRADFORD W. BOGAN

Assistant Federal Public Defender

Counsel of Record for Petitioner

DATED: August 3, 2020