Reply Brief — Jesus Leonardo Castillo-Martinez, Petitioner v. United States

No. 21-7762

In the

Supreme Court of the United States

JESUS LEONARDO CASTILLO-MARTINEZ,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

______________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

______________________________________

REPLY TO BRIEF FOR THE UNITED STATES IN OPPOSITION

______________________________________

Zainabu Rumala

Federal Defender Office

Assistant Federal Public Defender

51 Sleeper Street, 5th Floor

Boston, MA 02210

Tel: 617-223-8061

Attorney for Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

REPLY TO BRIEF FOR THE UNITED STATES IN OPPOSITION .......................... 1

I.

This Court Should Grant Review To Clarify Whether Counsel’s Failure To

Recognize And Raise Potentially Favorable And Controlling Issues Of Law

Constitutes Deficient Performance In This Case And To Resolve The Split

In The Lower Courts On The Interplay Between Ineffective Assistance

Claims And § 1326(d) Collateral Attacks. .................................................... 1

A. Certiorari Should Be Granted To Determine Whether Immigration

Counsel Was Deficient In Failing To Recognize And Raise A

Determinative Issue Of Law Pending Before This Court. ...................... 1

B. Certiorari Should Be Granted To Resolve The Circuit Conflict As To A

Noncitizen’s Burden Of Proving Prejudice In A § 1326(d) Collateral

Attack........................................................................................................ 5

C. Certiorari Should Be Granted To Resolve The Conflict As To The

Procedures Necessary To Satisfy § 1326(d)(1) And (d)(2). ...................... 8

D. Certiorari Should Be Granted Because This Case Presents A

Compelling Vehicle To Resolve The Circuit Conflicts And The

Questions Presented............................................................................... 11

II.

This Court Should Grant Review To Reconcile The Lower Courts’

Inconsistent Analyses Concerning Incomplete Notices To Appear, And

Provide Necessary Clarification On Whether The Service Of An Undated

NTA Vests The Immigration Court With Jurisdiction. ............................ 12

i

CONCLUSION............................................................................................................. 14

ii

TABLE OF AUTHORITIES

Page

CASES

Allabani v. Gonzales,

402 F.3d 668 (6th Cir. 2005) .............................................................................. 2

Andrus v. Texas,

140 S. Ct. 1875 (2020) ........................................................................................ 5

Batanic v. INS,

12 F.3d 662 (7th Cir. 1993) ................................................................................ 1

Bridges v. United States,

991 F.3d 793 (7th Cir. 2021) ........................................................................... 3-4

Bridges v. Wixon,

326 U.S. 135 (1945) ............................................................................................ 1

Calderon-Rosas v. Att’y Gen.,

957 F.3d 378 (3d Cir. 2020) ............................................................................... 2

Coleman v. Thompson,

501 U.S. 722 (1991) ............................................................................................ 2

Dakane v. Att’y Gen.,

399 F.3d 1269 (11th Cir. 2005) ........................................................................... 2

Flores-Rivera v. United States,

16 F.4th 963 (1st Cir. 2021) ................................................................................ 4

Garza v. Idaho,

139 S. Ct. 738 (2019) .......................................................................................... 5

Hinton v. Alabama,

571 U.S. 263 (2014) ............................................................................................. 3

Iavorski v. INS,

232 F.3d 124 (2d Cir. 2000) ................................................................................ 2

Jensen v. United States,

369 F.3d 237 (3rd Cir. 2004) ............................................................................... 3

iii

Lee v. United States,

137 S. Ct. 1958 (2017) ........................................................................................ 5

Lozada v. INS,

857 F.2d 10 (1st Cir. 1988) ................................................................................. 2

Mai v. Gonzales,

473 F.3d 162 (5th Cir. 2006) ............................................................................... 2

Moncrieffe v. Holder,

569 U.S. 184 (2013) ...................................................................................... 4-5, 7

Muyubisnay-Cungachi v. Holder,

734 F.3d 66 (1st Cir. 2013) ................................................................................ 2

Nehad v. Mukasey,

535 F.3d 962 (9th Cir. 2008) ............................................................................... 2

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ....................................................................................... 13

Osei v. INS,

305 F.3d 1205 (10th Cir. 2002) ........................................................................... 2

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ................................................................................. 12-13

Rehaif v. United States,

No. 17-9560................................................................................................... 13-14

Rehaif v. United States,

139 S. Ct. 2191 (2019) ....................................................................................... 13

Reno v. Flores,

507 U.S. 292 (1993) ............................................................................................ 1

Ross v. Blake,

578 U.S. 632 (2016) ............................................................................................ 9

Santana v. Holder,

731 F.3d 50 (1st Cir. 2013) ................................................................................ 9

Strickland v. Washington,

466 U.S. 668 (1984) ............................................................................................ 2

iv

United States v. Arias-Ordonez,

597 F.3d 972 (9th Cir. 2010) ............................................................................ 11

United States v. Bastide-Hernandez,

39 F.4th 1187 (9th Cir. 2022) ........................................................................... 13

United States v. Camacho-Lopez,

450 F.3d 928 (9th Cir. 2006) ............................................................................... 7

United States v. Castellanos-Avalos,

22 F.4th 1142 (9th Cir. 2022) ........................................................................... 10

United States v. Cerna,

603 F.3d 32 (2d Cir. 2010) ................................................................................ 10

United States v. Freeman,

24 F.4th 320 (4th Cir. 2022) ............................................................................... 3

United States v. Lopez-Chavez,

757 F.3d 1033 (9th Cir. 2014) ....................................................................... 3, 10

United States v. Martinez,

786 F.3d 1227 (9th Cir. 2015) ............................................................................. 8

United States v. Martinez-Hernandez,

932 F.3d 1198 (9th Cir. 2019) ............................................................................ 7

United States v. Ochoa-Oregel,

904 F.3d 682 (9th Cir. 2018) ............................................................................... 8

United States v. Palomar-Santiago,

141 S. Ct. 1615 (2021) ................................................................................... 9-11

STATUTES AND RULES

8 U.S.C. § 1182(a)(9)(A)(ii) .......................................................................................... 11

8 U.S.C. § 1229(a)(1) ............................................................................................... 12-13

8 U.S.C. § 1229a(b)(4) .................................................................................................... 1

§ 1326(d) ................................................................................................................passim

§ 1326(d)(1)................................................................................................................ 8-11

v

§ 1326(d)(2).......................................................................................................... 8, 10-11

§ 1326(d)(3)..................................................................................................................... 5

REGULATIONS

8 C.F.R. § 1003.2(d) ....................................................................................................... 9

8 C.F.R. § 1003.15 ........................................................................................................ 12

8 C.F.R. § 1003.18(b).................................................................................................... 12

8 C.F.R. § 1003.23(b)(1) ................................................................................................. 9

OTHER

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) ........................................................................... 12

Prison Litigation Reform Act of 1995 ........................................................................... 9

vi

REPLY TO BRIEF FOR THE UNITED STATES IN OPPOSITION

I.

This Court Should Grant Review To Clarify Whether Counsel’s Failure To

Recognize And Raise Potentially Favorable And Controlling Issues Of Law

Constitutes Deficient Performance In This Case And To Resolve The Split In

The Lower Courts On The Interplay Between Ineffective Assistance Claims

And § 1326(d) Collateral Attacks.

A. Certiorari Should Be Granted To Determine Whether Immigration Counsel

Was Deficient In Failing To Recognize And Raise A Determinative Issue Of

Law Pending Before This Court.

The government begins with an assertion that there is no right to appointed

counsel in immigration proceedings. Gov. Br. at 13-14. 1 But the civil nature of such

proceedings does not efface all other constitutional protections. “Though deportation is

not technically a criminal proceeding, it visits a great hardship on the individual and

deprives him of the right to stay and live and work in this land of freedom. That

deportation is a penalty—at times a most serious one—cannot be doubted. Meticulous

care must be exercised lest the procedure by which he is deprived of that liberty not

meet the essential standards of fairness.” Bridges v. Wixon, 326 U.S. 135, 154 (1945).

To this end, “the Fifth Amendment entitles aliens to due process of law in deportation

proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). Noncitizens also hold a

statutory right to be represented by counsel of their own choosing at their expense.

8 U.S.C. § 1229a(b)(4). That right of choice and representation is “‘an integral part of

the procedural due process to which the alien is entitled.’” Batanic v. INS, 12 F.3d 662,

667 (7th Cir. 1993) (citation omitted).

Citations are as follows: “Pet.” refers to the petition for writ of certiorari, “Pet. App.” refers to

the appendices to the petition, and “Gov. Br.” refers to the government’s brief in opposition.

1

1

As a number of courts of appeals have recognized, due process includes the right

to effective assistance of counsel where a noncitizen is represented by counsel. See

Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988); Iavorski v. INS, 232 F.3d 124, 128-29

(2d Cir. 2000); Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 384-85 (3d Cir. 2020);

Allabani v. Gonzales, 402 F.3d 668, 676 (6th Cir. 2005); Nehad v. Mukasey, 535 F.3d

962, 967 (9th Cir. 2008); Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002); Dakane v.

Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005); cf. Mai v. Gonzales, 473 F.3d 162, 165

(5th Cir. 2006) (“[The Fifth Circuit] has repeatedly assumed without deciding that an

alien’s claim of ineffective assistance may implicate due process concerns under the

Fifth Amendment.”). The government fails to address this majority consensus or argue

that these cases were wrongly decided.

Instead, the government argues that a noncitizen is bound by the errors of his

selected counsel. Gov. Br. at 14 (citing Coleman v. Thompson, 501 U.S. 722, 752-753

(1991)). The government fails to include Coleman’s caveat. Coleman states, “So long

as a defendant is represented by counsel whose performance is not constitutionally

ineffective under the standard established in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), we discern no inequity in requiring him to bear

the risk of attorney error that results in a procedural default.” 2 501 U.S. at 752

(emphasis added).

2 While the Strickland standard does not apply in immigration proceedings, there is a due

process right to effective assistance of counsel as noted above. Strickland involves a Sixth Amendment

framework, but the same requisites of deficient performance and a reasonable probability of prejudice

apply in the immigration context. See Muyubisnay-Cungachi v. Holder, 734 F.3d 66, 72 (1st Cir. 2013).

2

Here, Castillo-Martinez did not receive effective assistance of counsel. As noted

in the petition for certiorari, ineffective assistance claims in the immigration context

require proof of both deficient performance and prejudice. Pet. at 11 n.3. Thus,

contrary to the government’s contention, Gov. Br. at 17-18, Castillo-Martinez does not

argue that “conceding an issue pending before the Supreme Court automatically

constitutes ineffective assistance of counsel” or seek adoption of “an inflexible rule.”

But there are criteria for assessing deficiency and employing baseline standards for

attorney performance does not run afoul of the case-by-case analysis required in

evaluating ineffective assistance claims. Indeed, in Hinton v. Alabama, 571 U.S. 263

(2014), this Court stated that ignorance of law fundamental to a case combined with

the failure to perform basic research on that point “is a quintessential example of

unreasonable performance.” Id. at 274. Other courts have also found the failure to

research and present favorable arguments on potentially controlling issues to

constitute deficient performance by counsel. See e.g., United States v. Freeman, 24

F.4th 320, 326, 330-331 (4th Cir. 2022) (en banc) (quoting Hinton, court held counsel’s

waiver of meritorious objections at sentencing made without complete investigation

constituted deficient performance); Bridges v. United States, 991 F.3d 793, 797-98, 803

(7th Cir. 2021) (quoting Hinton, court found that effective counsel would have found

and considered issue undecided in circuit but decided in defendant’s favor in another

circuit); United States v. Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir. 2014) (deficient

performance where counsel failed to raise controlling open question on which there was

circuit split); Jensen v. United States, 369 F.3d 237, 243-44 (3rd Cir. 2004) (ineffective

assistance where counsel failed to raise an argument accepted in two other circuits and

3

rejected by a third at the time of sentencing that would have reduced defendant’s base

offense level; court noted decisions “were readily available”). In Bridges, supra, 991

F.3d at 804, the court also noted that while defense attorneys “are generally not

obliged to anticipate changes in the law . . . there are some circumstances where they

may be obliged to make, or at least to evaluate, an argument that is sufficiently

foreshadowed in existing case law.”

In challenging deficiency, the government describes counsel’s actions as “electing

to focus on one defense to removal rather than another,” Gov. Br. at 17 (quoting panel

majority below at Pet. App. A at 22), but the record does not support the government’s

contention that concession was a strategic choice; rather, the facts demonstrate that

counsel could only have been under the misimpression that it was the only choice. It

could only have been based on an unfamiliarity with then-current legal developments

that ultimately would have a direct impact on the removal proceedings. Counsel was

tasked with fighting the removal, and regardless of his client’s other criminal

convictions, counsel was faced with a Notice To Appear (NTA) on which, as Moncrieffe

v. Holder, 569 U.S. 184 (2013), indicates, Castillo-Martinez could not lawfully be

removed. Basic research would have revealed the potential defects and there was no

strategic reason to fail to challenge a deficient charging document. Raising the issue

provided the potential to avoid deportation on the only basis alleged in the NTA and

advancing the Moncrieffe claim would not have undermined the Convention Against

Torture arguments. See Flores-Rivera v. United States, 16 F.4th 963, 969 (1st Cir.

2021) (“Forgoing an argument is not a reasonable strategic decision when ‘there is

absolutely no downside’ to objecting to an error.”) (citation omitted).

4

Nor was it reasonable to intentionally waive the Moncrieffe claim simply to start

the clock on an alternative and tenuous avenue of relief that would not be potentially

available until two decades later. See Gov. Br. at 18 (citing panel majority below at

Pet. App. A at 22 n.7. which stated, “An alien previously ordered removed because of

an aggravated felony conviction is not eligible to seek readmission for 20 years. . . . Any

delay in removal [from litigating the Moncrieffe issue] would also delay the running of

Castillo-Martinez’s 20-year absence requirement.”). Under the facts and circumstances

of this case, Castillo-Martinez maintains that immigration counsel’s failure to

recognize and raise a determinative issue pending in a case argued in, and awaiting

decision by, this Court was deficient performance of counsel. 3

B. Certiorari Should Be Granted To Resolve The Circuit Conflict As To A

Noncitizen’s Burden Of Proving Prejudice In A § 1326(d) Collateral Attack.

Turning to prejudice, 4 the government asserts that the court of appeals correctly

held that Castillo-Martinez must demonstrate “he would have avoided removal if his

marijuana conviction had not been classified as an aggravated felony.” Gov. Br. at 1920. The government’s argument, and the First Circuit’s holding on this point, rest on

the assumption that the government could have amended the NTA to provide another

basis for a mandatory removal, or amended the statutory provision cited in the NTA

The government appears to suggest that any challenge to the adequacy of counsel’s

performance is a fact-specific argument that would not warrant this Court’s review. Gov. Br. at 18. But

all evaluations of the adequacy of counsel’s performance require looking at the facts of the case, and this

process has not precluded this Court from granting certiorari in and deciding ineffective assistance of

counsel cases. See, e.g., Andrus v. Texas, 140 S. Ct. 1875 (2020); Garza v. Idaho, 139 S. Ct. 738 (2019);

Lee v. United States, 137 S. Ct. 1958 (2017).

3

4 Castillo-Martinez contests the First Circuit’s finding of lack of prejudice for both his Fifth

Amendment ineffective assistance of counsel claim and the fundamental unfairness required under §

1326(d)(3). The panel majority addressed both in the context of § 1326(d)(3) and viewed both as

permitting an evaluation of more than what was listed in the NTA. Pet. App. A at 18-19, 23-26.

5

and sought removal based on his status as a controlled-substance offender for the

marijuana offense. Gov. Br. at 21. The First Circuit also placed the burden on

Castillo-Martinez to demonstrate he would not have been removed following those

hypothetical proceedings. But while a prejudice inquiry generally focuses on the

reasonable likelihood that the result of the proceedings would have been different, and

whether a noncitizen was prevented from reasonably presenting his case, it does not

require a noncitizen to show that they would also defeat removal based on grounds not

pursued by the government. Indeed, such an approach is precarious. As discussed by

the dissent below,

[M]ust a defendant -- or a court -- in an unlawful reentry proceeding

anticipate and refute every conceivable legal ground that the government

could have attempted to predicate an order of removal on when seeking

the removal of that individual, notwithstanding that “the order” of

removal that was actually entered and that is the only one that “is

outstanding” at the time of the alleged unlawful reentry is the product of

constitutionally deficient legal assistance? And if not, what are the limits

on either the defendant’s or the court’s obligation to account for those

possibilities?

Pet. App. A at 56.

To avoid engaging in such time-consuming, hypothetical, and unnecessary

inquiries, Pet. App. A at 56, this Court should reject an approach to evaluating

prejudice on the basis of guesswork as to whether “orders never entered might have

been lawful.” Pet. App. A at 54. It should focus on the reasonable likelihood that the

result of the proceeding actually brought would be different and whether the

noncitizen was prevented from reasonably presenting his case against the charge

actually made. This type of analysis “ensures that a consequence as serious as

6

expulsion from the country follows from an actual lawful order and not merely a

hypothetical one that was never entered at all.” Pet. App. A at 56.

Here, Castillo-Martinez has shown that he would not have been removed on the

basis of the removal order actually entered because his marijuana offense was not an

aggravated felony, i.e., a different result, and has shown he was prevented by counsel’s

performance from reasonably presenting his case. See Pet. App. A at 52, 55 (in dissent,

Judge Barron concluding that “Castillo-Martinez can show that his counsel’s failure to

raise the Moncrieffe-related argument did prevent him from reasonably presenting the

case that it would be unlawful to order him removed on the sole ground on which his

order of removal rested . . . [and] Moncrieffe makes clear that the only removal order

that was entered could not have been lawfully entered”).

The Ninth Circuit has employed the prejudice analysis advanced by CastilloMartinez—focusing on the NTA actually brought or the removal order actually

entered—and it conflicts with the First Circuit’s speculative and expansive practice.

The government’s attempts to minimize the conflict between the Ninth Circuit’s

approach and that employed by the First Circuit, Gov. Br. at 21-23, should be rejected.

For example, in United States v. Martinez-Hernandez, 932 F.3d 1198 (9th Cir. 2019),

while the court evaluated whether the conviction on which removal had been based

could still qualify as an aggravated felony under a different section of the same statute

previously invoked, id. at 1205, it noted that the government was not offering a

different conviction or factual allegations not referenced in the NTA as support for a

finding of no prejudice. Id. at 1204-05. In United States v. Camacho-Lopez, 450 F.3d

928 (9th Cir. 2006), the court concluded that the defendant suffered prejudice where

7

the NTA charged removability only for having committed an aggravated felony and his

prior conviction did not fit that definition. Id. at 930 and n.1. In United States v.

Martinez, 786 F.3d 1227 (9th Cir. 2015), the court looked to the offense set out in the

NTA and found (1) it did not qualify as an aggravated felony as charged and (2) the

government could not demonstrate that the defendant was removed pursuant to a

valid removal order. Id. at 1230, 1233 n.2. And in United States v. Ochoa-Oregel, 904

F.3d 682 (9th Cir. 2018), the court stated, “[E]ven if the government might have been

able to remove him on other grounds through a formal removal proceeding, his removal

on illegitimate grounds is enough to show prejudice.” Id. at 685-86.

The government attempts to distinguish Ochoa-Oregel as “limited to the case

where an alien is erroneously removed in absentia and did not have a meaningful

opportunity to contest the order . . . .” Gov. Br. at 23 (quoting 904 F.3d at 685 n.1).

However, here, Castillo-Martinez also lacked a meaningful opportunity to contest

removal as immigration counsel’s uninformed concession deprived Castillo-Martinez of

the opportunity to present his case that he was not eligible for mandatory deportation

based on the allegations in the NTA.

C. Certiorari Should Be Granted To Resolve The Conflict As To The Procedures

Necessary To Satisfy § 1326(d)(1) And (d)(2).

Despite satisfying both the deficiency and prejudice prongs of his ineffective

assistance of counsel claim, the government contends that Castillo-Martinez did not

employ the proper procedural mechanisms to advance the claim. The government

maintains that Castillo-Martinez’s ineffective assistance allegation could not satisfy

the exhaustion requirement of § 1326(d)(1) because such a claim can be raised, but was

not, in a motion to reopen in the Board of Immigration Appeals. Gov. Br. at 15.

8

However, it ignores the limitations of that provision. A noncitizen is required to

“exhaust[ ] any administrative remedies that may have been available to seek relief

against the order.” § 1326(d)(1) (emphasis added). This Court’s definition of

availability recognizes an inherent practical element. As stated in Ross v. Blake, 578

U.S. 632 (2016), in addressing the exhaustion requirements of the Prison Litigation

Reform Act of 1995:

An inmate [] must exhaust available remedies, but need not exhaust

unavailable ones. . . . [T]he ordinary meaning of the word “available” is

“‘capable of use for the accomplishment of a purpose,’ and that which ‘is

accessible or may be obtained.’” Accordingly, an inmate is required to

exhaust those, but only those, grievance procedures that are “capable of

use” to obtain “some relief for the action complained of.”

Id. at 642 (citations omitted). As evidenced by this Court’s discussion of Ross v. Blake

in United States v. Palomar-Santiago, 141 S. Ct. 1615, 1621 (2021), this Court

continues to view exhaustion requirements through a pragmatic lens.

Here, if required, a motion to reopen was not practically available. Immigration

regulations prohibit the filing of a motion to reopen by one who has already been

removed. See 8 C.F.R. § 1003.2(d) (“A motion to reopen . . . shall not be made by or on

behalf of a person who is the subject of . . . removal proceedings subsequent to his or

her departure from the United States.”); 8 C.F.R. § 1003.23(b)(1) (same). While the

First Circuit has held this post-departure bar does not apply to motions timely filed

within 90 days of the final administrative decision, see Santana v. Holder, 731 F.3d 50

(1st Cir. 2013), the court did not address the bar’s effect on untimely motions. In

addition, Castillo-Martinez was removed to the Dominican Republic on April 16, 2013;

Moncrieffe was decided on April 23, 2013, after he was deported. At that time he had

no counsel. It is unreasonable to expect that an uncounseled and removed noncitizen

9

would be aware of legal developments in the United States occurring after his removal,

and then be able to effectively use that information to litigate his claim in the United

States, particularly within 90 days of the March 2013 final administrative decision.

Thus, a motion to reopen was not available within the meaning of § 1326(d)(1).

Moreover, this Court has not yet defined what procedures would satisfy the

requirements of § 1326(d)(1) and (d)(2). Nor has it held that a motion to reopen is

required to satisfy the exhaustion requirement where a removed noncitizen alleges he

did not receive effective assistance of counsel in his removal proceedings. This case is

the vehicle in which it should resolve those questions.

In doing so, this Court can resolve the circuit split as to whether ineffective

assistance of counsel can satisfy the requirements of § 1326(d)(1) and (d)(2). As noted

in the petition for certiorari, both the Second and Ninth Circuits have held that a

meritorious ineffective assistance claim satisfies or excuses compliance with §

1326(d)(1) and (d)(2). See Pet. at 13 (citing United States v. Lopez-Chavez, 757 F.3d

1033, 1044 (9th Cir. 2014), and United States v. Cerna, 603 F.3d 32, 40-42 (2d Cir.

2010)). While, as the government states, neither court has reaffirmed those decisions

since Palomar-Santiago, Gov. Br. at 16, the split remains. Both cases remain

precedential in their respective circuits and are in clear conflict with the panel

majority’s decision below. Nor does the Ninth Circuit’s subsequent questioning of

Palomar-Santiago’s impact on its § 1326(d) analysis eliminate the conflicting

approaches among the courts. See United States v. Castellanos-Avalos, 22 F.4th 1142

(9th Cir. 2022) (questioning, but not addressing, the viability of its § 1326(d) analysis

post-Palomar-Santiago). Again, it illustrates that there is a still a question to be

10

resolved. And Palomar-Santiago left open the question posed here—the interplay

between an ineffective assistance claim and the requirements of § 1326(d)(1) and (d)(2).

D. Certiorari Should Be Granted Because This Case Presents A Compelling

Vehicle To Resolve The Circuit Conflicts And The Questions Presented.

Despite the circuit conflicts present in this case, the government argues that this

case is an inadequate vehicle for review of the first question presented because the

question is of limited significance to Castillo-Martinez. Gov. Br. at 25. But questions

implicating the validity of a conviction—here, an illegal re-entry conviction—are not

insignificant. In addition, the completion of a sentence does not remove the collateral

consequences faced by a defendant. Moreover, if the initial 2013 removal is held

invalid, the re-entry bar under 8 U.S.C. § 1182(a)(9)(A)(ii) that generally applies after

successive removals would also be impacted. See United States v. Arias-Ordonez, 597

F.3d 972, 978 (9th Cir. 2010) (noting reinstatement orders are invalid by operation of

law if the original removal was not legally sound). As outlined above, CastilloMartinez has established ineffective assistance of immigration counsel at his removal

proceedings and the unlawfulness of the 2013 removal order. 5

Furthermore, the issues in this case have a significance broader than the

personal ramifications for Castillo-Martinez; given the prevalence of deportation

proceedings triggered by a criminal conviction and the prevalence of illegal re-entry

prosecutions, clarity surrounding the substantive rights and procedural gateways

5 While a petitioner need not show a likelihood of prevailing in order to obtain this Court’s

review of important issues, cf. Gov. Br. at 23-24, Castillo-Martinez has done so here.

11

involved in such proceedings is vital. In light of the conflict among the courts and the

important questions presented in the case, certiorari is warranted.

II.

This Court Should Grant Review To Reconcile The Lower Courts’

Inconsistent Analyses Concerning Incomplete Notices To Appear, And

Provide Necessary Clarification On Whether The Service Of An Undated

NTA Vests The Immigration Court With Jurisdiction.

The government contends that a Notice to Appear is sufficient to confer

jurisdiction even absent date and time information. Gov. Br. at 26. This position relies

on the regulations promulgating the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), see 8 C.F.R. §§ 1003.15 (listing NTA contents) &

1003.18(b) (time and place information necessary “where practicable”), but is wholly

divorced from the statute, see 8 U.S.C. § 1229(a)(1) (initiation of removal proceedings

requires notice to appear containing time and place of proceeding). Section 1229(a)(1)

clearly requires that removal proceedings be initiated by a dated NTA. The

regulations cannot unilaterally do away with this requirement.

The government does not explain why the statute can be ignored rather than

read in conjunction with the regulations. Nor does it address the fact that the

regulations mirror the two-step system that Congress jettisoned. In addition, the

government fails to recognize that treating the time and place requirement as nonjurisdictional ignores concerns that noncitizens were being stripped of their right to

proper notice of removal proceedings, and as a result, their ability to obtain

representation for those proceedings. If time and date information is essential and

critical, and this Court has stated that it is, Pereira v. Sessions, 138 S. Ct. 2105 (2018),

it follows that jurisdiction vests only when the charging document contains that

12

essential and critical information. Finally, the government does not address why a

subsequent notice of hearing cures the initial defective NTA when it fails in several

respects to meet the requirements of § 1229(a)(1).

The government highlights that this Court has rejected a number of certiorari

petitions raising the issue of whether an NTA without date and time information

confers jurisdiction on the immigration court, and that no circuit has held that

jurisdiction cannot vest in the absence of a statutorily-compliant NTA. 6 Gov. Br. at 12,

28-29. However, those facts do not preclude this Court from reaching the issue at this

time. As just one example, this Court granted review in Rehaif v. United States, 139 S.

Ct. 2191 (2019), despite a lengthy history of certiorari denials on the same issue

presented in the Rehaif petition. See Rehaif v. United States, No. 17-9560, Gov. Br. at

6 This does not mean that all circuit court judges agree that the jurisdictional question has been

definitively or properly resolved. Recently, in United States v. Bastide-Hernandez, 39 F.4th 1187 (9th

Cir. 2022) (en banc), Judge Friedland wrote:

Although our court today holds that service of an NTA is not required to confer

jurisdiction on the immigration court, there are strong arguments for the contrary

position. The Supreme Court may therefore hold that jurisdiction vests over removal

proceedings only upon service of a single, statutorily compliant NTA.

...

Given that the Supreme Court has on two occasions [Pereira and Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021)] strictly enforced the statutory NTA requirements, and given that

there is evidence that Congress intended an NTA to be necessary for jurisdiction over

removal proceedings, the Supreme Court may eventually disagree with out court’s

holding today.

...

At oral argument before our court, the Government admitted that, despite progress in

this area, some NTAs will continue to have a placeholder reading “to be determined” or

“to be set” instead of the time and date of the hearing. This admission shows that, more

than a year after the Supreme Court’s warning in Niz-Chavez, the Government is not

“turning square corners” when it issues NTAs.

Id. at 1194-97 (Friedland, J., concurring) (citation omitted).

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7 (government arguing against the grant of the writ, noting that “this Court has

repeatedly declined requests to review the question presented and similar questions,

including in cases involving arguments that support the position petitioner presses”).

Nor did it matter that a series of decisions from the circuit courts of appeals had

previously decided the issue against the petitioner’s position in Rehaif. See Rehaif v.

United States, No. 17-9560, Gov. Br. at 5-6 (government noting the absence of any

circuit split and that for over 30 years, every circuit to consider the knowledge of status

issue had determined that it was not required). And here, confusion abounds in the

lower courts on the appropriate treatment of defective NTAs (some courts holding

jurisdiction vests with an undated NTA; others holding a subsequent dated hearing

notice triggers jurisdiction; and still others holding the date and time requirement is a

non-jurisdictional claim processing rule). See Pet. at 21-25. This case serves as an

ideal vehicle for this Court to evaluate the differing approaches and provide a single

standard for lower courts to follow to eliminate the legal clashing.

CONCLUSION

For the reasons set forth above and in Castillo-Martinez’s petition, CastilloMartinez respectfully requests that the Court grant the writ of certiorari.

Respectfully submitted,

/s/ Zainabu Rumala

Zainabu Rumala

Assistant Federal Public Defender

Federal Defender Office

51 Sleeper Street, 5th Floor

Boston, MA 02210

(617) 223-8061

Date: September 16, 2022

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