Petition for Writ of Certiorari — Eric Romero-Lobato, Petitioner v. United States

Supreme Court briefMay 8, 2024

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No. _______

In the

Supreme Court of the United States

Eric Romero-Lobato,

Petitioner,

United States of America,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Petition for a Writ of Certiorari

Rene Valladares

Federal Public Defender, District of Nevada

*Amy B. Cleary

Appellate Chief

Office of the Federal Public Defender

411 E. Bonneville Ave., Ste. 250

Las Vegas, NV 89101

(702) 388-6577

Amy_Cleary @fd.org

*Counsel for Petitioner Eric Romero-Lobato

Questions Presented for Review

Whether the minority status of a noncitizen at the time an in absentia

deportation order is issued falls among the compelling circumstances

sufficient to warrant rescission of that order under 8 U.S.C. §

1252b(c)(3)(A) (1994).

II.

Whether the presumption of regularity doctrine can be applied despite

the absence of regularity.

Related Proceedings

The United States District Court for the District of Nevada denied Petitioner

Eric Romero-Lobato’s motion to dismiss the indictment on April 1, 2019. App. 7a–

14a. The Ninth Circuit affirmed in an unpublished decision on November 3, 2023

(App. 2a–6a) and denied rehearing on February 9, 2024 (App. 1a).

Table of Contents

Questions Presented for Review .................................................................................... i

Related Proceedings....................................................................................................... ii

Table of Contents .......................................................................................................... iii

Table of Authorities ....................................................................................................... v

Petition for a Writ of Certiorari .................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Relevant Provisions ....................................................................................................... 2

Introduction ................................................................................................................... 3

Statement of the Case ................................................................................................... 3

Statutory Background ..................................................................................... 3

Factual and Procedural Background .............................................................. 5

Immigration Detainer .................................................................................. 5

Orders to Show Cause.................................................................................. 5

Notice of Hearing ......................................................................................... 6

Order to Report for Deportation .................................................................. 6

Collateral Challenge to Deportation Order ................................................ 7

Ninth Circuit Court of Appeals ................................................................... 9

Split Ninth Circuit Decision ...................................................................... 12

Rehearing denied ....................................................................................... 16

Reasons for Granting the Petition .............................................................................. 16

iii

The Ninth Circuit impermissibly limited the compelling circumstances

that may be considered to rescind a deportation order under 8 U.S.C.

§ 1252b(c)(3) (1994). ......................................................................................... 17

Compelling circumstances under 8 U.S.C § 1252b(c)(3)(A) (1994) should

include the youth of the noncitizen............................................................... 17

The Ninth Circuit’s decision is incorrect. ..................................................... 22

This important issue warrants the Court’s review. ..................................... 23

II.

The Ninth Circuit has impermissibly expanded the presumption of

regularity beyond its capabilities. .................................................................... 24

The presumption of regularity doctrine. ...................................................... 24

The Ninth Circuit misapplied the presumption of regularity, splitting

from the Second and Third Circuits. ............................................................ 26

It is important for this Court correct the Ninth Circuit’s opinion. ............. 27

III.

This case presents an ideal vehicle for review. ................................................ 27

Conclusion .................................................................................................................... 28

Table of Authorities

Federal Cases

Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) ..................................................... 19, 21

Barrios v. Att’y Gen. of U.S., 399 F.3d 272 (3d Cir. 2005) ........................................ 20

Bellotti v. Baird, 443 U.S. 622 (1979) ....................................................................... 21

Bridges v. Wixon, 326 U.S. 135 (1945) ...................................................................... 17

Busquets-Ivars v. Ashcroft, 333 F.3d 1008 (9th Cir. 2003) ...................................... 15

Clough v. Comm’r, 119 T.C. 183 (2002) .................................................................... 25

Cones v. Wilkie, 825 F. App’x 841 (Fed. Cir. 2020) ................................................... 26

Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019) ................................................... 24

Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978) ...................................................... 17

Eddings v. Oklahoma, 455 U.S. 104 (1982) ........................................................ 21, 22

Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) ........................................ 19

Follum v. Comm’r, 128 F.3d 118 (2d Cir. 1997) ....................................................... 25

Iturribarria v. I.N.S., 321 F.3d 889 (9th Cir. 2003) ........................................... 19, 21

Jerezano v. I.N.S., 169 F.3d 613 (9th Cir. 1999) ................................................. 20, 22

Johnson v. Texas, 509 U.S. 350 (1993) ...................................................................... 22

Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007) ..................................................... 11

Llanos-Fernandez v. Mukasey, 535 F.3d 79 (2d Cir. 2008) ...................................... 19

Marbury v. Madison, 5 U.S. 137 (1803) .................................................................... 23

Mardones v. McElroy, 197 F.3d 619 (2d Cir. 1999) ............................................ 19, 21

May v. Anderson, 345 U.S. 528 (1953) ................................................................ 21, 22

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) .................. 20

Nazarova v. I.N.S., 171 F.3d 478 (7th Cir. 1999) ......................................... 20, 21, 22

Ortiz v. Barr, 819 F. App’x 546 (9th Cir. 2020) ........................................................ 19

O’Rourke v. United States, 587 F.3d 537 (2d Cir. 2009) ..................................... 25, 26

Plyler v. Doe, 457 U.S. 202 (1982) ............................................................................. 17

Romero v. Tran, 33 Vet. App. 252 (2021) .................................................................. 26

Roper v. Simmons, 543 U.S. 551 (2005) .............................................................. 21, 22

Santana Gonzalez v. Att’y Gen. of U.S., 506 F.3d 274 (3d Cir. 2007) ................ 25, 26

Sembiring v. Gonzales, 499 F.3d 981 (9th Cir. 2007) ......................................... 11, 26

Singh v. I.N.S,, 213 F.3d 1050 (9th Cir. 2000) ......................................................... 18

Snyder v. McDonough, 1 F.4th 996 (Fed. Cir. 2021) .................................... 25, 26, 27

Thompson v. Oklahoma, 487 U.S. 815 (1988) ........................................................... 21

U.S. Postal Serv. v. Gregory, 534 U.S. 1 (2001) ........................................................ 24

United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) ................................. 13

United States v. Chem. Found., Inc., 272 U.S. 1 (1926) ........................................... 25

United States v. Garcia-Martinez, 228 F.3d 956 (9th Cir. 2000) ............................... 4

United States v. Melendez-Castro, 671 F.3d 950 (9th Cir. 2012) ............................. 12

United States v. Mendoza-Lopez, 481 U.S. 828 (1987) ................................................. 3

United States v. Morgan, 313 U.S. 409 (1941) .......................................................... 24

United States v. Orozco-Orozco, 94 F.4th 1118 (9th Cir. 2024) ................................. 3

United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. 2004) ..................................... 3

United States v. Palomar-Santiago, 593 U.S. 321 (2021) .................................... 3, 10

United States v. Romero-Lobato, Case No. 3:18-cr-00047-LRH-CBC,

2019 WL 1446975 (D. Nev. Apr. 1, 2019) ............................................................... 1

United States v. Romero-Lobato, Case No. 22-10091,

2023 WL 7271091 (9th Cir. Nov. 3, 2023) .............................................................. 1

United States Constitution

Fifth Amendment to the United States Constitution ................................................ 2

Federal Statutes

8 U.S.C. § 1182(h) (1994) .............................................................................................. 8

8 U.S.C. § 1252b (1994) ........................................................................................... 2, 4

8 U.S.C. § 1252b(a)(2) (1994) ................................................................................ 13, 18

8 U.S.C. § 1252b(a)(2)(A) (1994) .................................................... 4, 6, 7, 9, 12, 13, 25

8 U.S.C. § 1252b(c)(1) (1994) ...................................................................................... 18

8 U.S.C. § 1252b(c)(3)(A) (1994) ...................i, 4, 8, 10, 13, 14, 16 17, 18, 20, 23, 24, 27

8 U.S.C.§ 1252b(c)(3)(B) (1994) ........................................................................... 4, 9, 13

8 U.S.C. § 1252b(f)(1) (1994) ....................................................................... 4, 6, 7, 9, 12

8 U.S.C. § 1252b(f)(2) (1994) ...................................................... 4, 8, 18, 20, 23, 24, 27

8 U.S.C. § 1326 (1996) .................................................................................... 16, 17, 18

8 U.S.C. § 1326(a) (1996) ......................................................................................... 3, 7

8 U.S.C. § 1326(d) (1996) ................................................................................. 2, 3, 7, 9

8 U.S.C. § 1326(d)(1) (1996)......................................................................................... 10

8 U.S.C. § 1326(d)(2) (1996)........................................................................................ 10

8 U.S.C. § 1326(d)(3) (1996).................................................................................... 9, 10

28 U.S.C. § 1254(1) (1988) ............................................................................................ 1

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 .................... 4

Immigration and Nationality Act § 212(h) ................................................................... 8

Immigration and Nationality Act § 242B ..................................................................... 4

Immigration and Nationality Act § 242.24 ............................................................... 19

Federal Regulations

8 C.F.R. § 103.5a .......................................................................................................... 4

8 C.F.R. § 242.24 .......................................................................................................... 4

vii

Supreme Court Rules

S. Ct. R. 13.1 .................................................................................................................. 1

Secondary Sources

Alien Files (A-Files), https://www.archives.gov/research/immigration /aliens ......... 12

Merriam-Webster.com, https://www.merriam-webster.com/ thesaurus/compelling. 20

Unauthorized Immigrant Population: National and State Trends, Pew Research

Center (2010), https://www.pewresearch.org/raceandethnicity/2011/02/01/

unauthorized-immigrant-population-brnational-and-state-trends-2010/ ............ 17

viii

Petition for Writ of Certiorari

Petitioner Eric Romero-Lobato respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Ninth Circuit.

Opinions Below

The district court’s order denying Romero-Lobato’s motion to dismiss is

unpublished but electronically available at United States v. Romero-Lobato, Case

No. 3:18-cr-00047-LRH-CBC, 2019 WL 1446975 (D. Nev. Apr. 1, 2019). App. 7a–14a.

The Ninth Circuit’s memorandum affirming the district court is unpublished

but electronically available at United States v. Romero-Lobato, Case No. 22-10091,

2023 WL 7271091 (9th Cir. Nov. 3, 2023). App. 2a–6a.

The Ninth Circuit’s order denying rehearing and en banc review is

unpublished but available on the Ninth Circuit’s electronic docket at United States

v. Romero-Lobato, Case No. 22-10091, Dkt. No 47 (9th Cir. Feb. 9, 2024). App. 1a.

Jurisdiction

The Ninth Circuit entered final judgment denying rehearing on February 9,

2024. App. 1a. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). This

petition is timely. Sup. Ct. R. 13.1.

Relevant Provisions

The Fifth Amendment to the United States Constitution provides, in

part, that “[n]o person shall be . . . deprived of life, liberty, or property, without due

process of law.”

Title 8, Section 1326 of the United States Code (1996) provides, in

relevant part:

(d) Limitation on collateral attack on underlying deportation order

In a criminal proceeding under this section, an alien may not

challenge the validity of the deportation order described in

subsection (a)(1) or subsection (b) unless the alien demonstrates

that—

(1) the alien exhausted any administrative remedies that may

have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued

improperly deprived the alien of the opportunity for judicial review;

and

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

Title 8, Section 1252b of the United States Code (1994) (repealed 1996)

is provided in the Appendix. See App. 15a–20a.

Introduction

This case raises important concerns about the procedures that must be

followed to deport a noncitizen from the United States and the proper judicial

review to assess those procedures.

Statement of the Case

Statutory Background

A noncitizen who is criminally charged with being found in the United States

after being previously deported under 8 U.S.C. § 1326(a) (1996) has a Fifth

Amendment right to collaterally attack the validity of the underlying deportation

order.1 United States v. Orozco-Orozco, 94 F.4th 1118, 1122 (9th Cir. 2024). To

successfully lodge a collateral attack, the noncitizen must show: (1) exhaustion of

available administrative remedies; (2) deprivation of the opportunity for judicial

review; and 3) fundamental unfairness in the entry of the order because of a due

process violation and prejudice from that violation. 18 U.S.C. § 1326(d) (1996).

The issue here involves the fundamental unfairness prong of § 1326(d). A

prior deportation order is fundamentally unfair when the “(1) [noncitizen’s] due

process rights were violated by defects in the underlying deportation proceeding,

and (2) he suffered prejudice as a result.” United States v. Ortiz-Lopez, 385 F.3d

1202, 1203–04 (9th Cir. 2004) (per curiam) (cleaned up). To establish prejudice, the

1 Congress codified the right to collaterally challenge a prior deportation

order in response to this Court’s decision in United States v. Mendoza-Lopez, 481

U.S. 828, 837 (1987), rev’d on other grounds by United States v. Palomar-Santiago,

593 U.S. 321 (2001). Mendoza made clear that, “at a minimum,” “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 [noncitizen] to obtain judicial review.” Id. at 839.

noncitizen “must demonstrate plausible grounds for relief from deportation.” United

States v. Garcia-Martinez, 228 F.3d 956, 963 (9th Cir. 2000).

Romero-Lobato’s immigration proceedings commenced before April 1, 1997,

and his in absentia deportation order was entered in July 1996. This case is

therefore governed by the law in effect before the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), e.g., the Immigration and

Nationality Act (INA), § 242B, as amended, 8 U.S.C. § 1252b (1994); and 8 C.F.R. §§

103.5a, 242.24.

Under 8 U.S.C. § 1252b(c)(3) (1994), a deportation order may be rescinded:

(A) upon a motion to reopen filed within 180 days after the date of the

order of deportation if the alien demonstrates that the failure to

appear was because of exceptional circumstances (as defined in

subsection (f)(2) of this section), or

(B) upon a motion to reopen filed at any time if the alien demonstrates

that the alien did not receive notice in accordance with subsection

(a)(2) of this section or the alien demonstrates that the alien was in

Federal or State custody and did not appear through no fault of the

alien.

The term “exceptional circumstances” as used in § 1252b(c)(3)(A) refers to

those circumstances beyond the control of the noncitizen, “such as serious illness” of

the noncitizen, the death of his immediate relative, or equally compelling

circumstances. 8 U.S.C. § 1252b(f)(2).

The statutory service methods refenced in § 1252b(c)(3)(B) are limited to

either personal service or certified mail service, § 1252b(a)(2)(A), with a “return

receipt requested,” id. § 1252b(f)(1).

Factual and Procedural Background

In 1986, when Eric Romero-Lobato was just six or seven years old, his

mother, a legal permanent resident (LPR), brought him to the United States from

Mexico. App. 7a. He spent his childhood living in Reno, Nevada, with his mother

and his siblings, some of whom are U.S. citizens. 2-ER-162, 198.2 When he was just

16 years old, the United States deported Romero-Lobato to Mexico, separating him

from his mother and siblings. The following summarizes the underlying deportation

proceedings.

Immigration Detainer

In September 1995, at age 15, Romero-Lobato came to the attention of the

Immigration and Nationalization Service (INS)3 following his arrest by Reno police.

2-ER-1, 196. He was placed in INS custody but later detained and charged at a local

juvenile facility. App. 7a. INS subsequently issued an immigration detainer for

Romero-Lobato. App. 7a.

Orders to Show Cause

Also in September 1995, INS issued an Order to Show Cause (OSC) charging

Romero-Lobato with entering the United States without inspection. App. 7a.

However, the 1995 OSC failed to identify the date, time, or location of RomeroLobato’s deportation hearing. App. 7a–8a; 2-ER-209. The 1995 OSC also lacked

Romero-Lobato’s thumbprint or signature to demonstrate he received personal

2 ER citations refer to the Ninth Circuit’s Excerpts of Record.

3 “INS ceased to function in 2003” and “most of its law enforcement

responsibilities were transferred to Immigration and Customs Enforcement

(“ICE”).” App. 7a.

service of the OSC. App. 7a–8a; 2-ER-210. Lacking proof that INS served the 1995

OSC on Romero-Lobato, INS declined to pursue deportation. 2-ER-166–167.

In January 1996, Nevada declared Romero-Lobato a ward of the court and

placed him on juvenile probation. App. 8a. INS again attempted to serve RomeroLobato with an OSC in 1996. App. 8a. But the 1996 OSC also failed to identify the

date, time, or location of his deportation hearing and used an incorrect mailing

address for Romero-Lobato. App. 8a; 2-ER-213. Indeed, INS records contain only

copies of “certified mail receipts” for the 1996 OSC signed by someone who provided

a misspelled and incomplete signature for an “Eric Lovato.” App. 8a; 2-ER-208.

Notice of Hearing

In March 1996, and again using an incorrect mailing address, INS issued a

notice of hearing for Romero-Lobato identifying a date and time for his July 1996

deportation hearing. App. 8a; 2-ER-217. There is no evidence or admission that INS

served the 1996 notice of hearing on Romero-Lobato (or his guardian mother) by

personal service or by certified mail return receipt requested—the only two statutory

service methods then permitted. 2-ER-216; 8 U.S.C. § 1252b(a)(2)(A), (f)(1) (1994).

When Romero-Lobato did not appear for the scheduled deportation hearing, an

immigration judge entered an in absentia order of deportation against him in July

1996. App. 8a; 2-ER-186.

Order to Report for Deportation

In September 1996, INS issued an order for Romero-Lobato to report for

deportation, once again using an incorrect mailing address for him. App. 8a; 2-ER221. The order also incorrectly advised: “A review of your file indicates there is no

administrative relief which may be extended to you, and it is now incumbent upon

this Service to enforce your departure from the United States.” 2-ER-221 (emphasis

added). Romero-Lobato did not appear for deportation at the time and location

indicated in the order. App. 8a.

In November of 1996, INS located and deported Romero-Lobato to Mexico.

App. 8a. Romero-Lobato was barely 16 at the time of his deportation. 2-ER-164.

Collateral Challenge to Deportation Order

Romero-Lobato subsequently reentered the United States, leading to

reinstatement of the 1996 in absentia deportation order in 1998, 1999, and 2002.

App. 7a.

In 2018, Romero-Lobato was federally indicted with one count of unlawfully

reentering the United States under 8 U.S.C. § 1326(a) (1996). App. 7a. RomeroLobato moved to dismiss the indictment, collaterally challenging his immigration

proceedings as fundamentally unfair under 8 U.S.C. § 1326(d) (1996). App. 7a–14a.

Among his collateral challenges, Romero-Lobato argued two defects in his

immigration proceedings rendered his in absentia deportation order fundamentally

unfair, each of which satisfied § 1326(d)’s relief requirement: (1) lack of statutory

notice of the July 1996 deportation hearing as required by 8 U.S.C. § 1252b(a)(2)(A),

(f)(1) (1994);4 and (2) the affirmatively misleading September 1996 advisement that

no relief from deportation existed for him. App. 7a–14a. Because Romero-Lobato

4 Romero-Lobato also challenged the various service defects in the 1995 and

1996 OSCs such as the use of incorrect mailing addresses and the INS’s failure to

serve his mother as his guardian with any of the immigration documents, though he

does not pursue those challenges here. See App. 3a.

had multiple avenues of relief from deportation available to him had he been

properly advised,5 each of these fundamental due process violations prejudiced him.

App. 12a. Romero-Lobato was thus eligible for rescission of the in absentia

deportation order as he did not appear at the deportation hearing due to exceptional

circumstances through no fault of his own. See 8 U.S.C. § 1252b(c)(3)(A), (f)(2).

The district court denied Romero-Lobato’s motion to dismiss. App. 7a–14a.

The district court did so by finding effective service of the notice of deportation

hearing without reaching the prejudice inquiry. App. 8a–12a. The court based its

service finding on the notice of hearing having been “sent” in a “mailing” to the

same incorrect address used in the 1996 OSC. App. 3a (referencing 8a–12a). The

district court, however, “made no finding as to whether the notice of hearing was

personally served or sent by certified mail” to Romero-Lobato, and no evidence

suggested such service was made. App. 5a. The district also concluded that “even

assuming” the order to report violated his due process rights because of its

erroneous advisement as to available relief, Romero-Lobato did not demonstrate

prejudice as it was not plausible his in absentia deportation removal order could be

reopened under 8 U.S.C. § 1252b(c)(3) (1994). App. 13a–14a.

Following the district court’s denial, Romero-Lobato entered a conditional

guilty plea that preserved his right to appeal the denial. 2-ER-35–49. The district

court then sentenced Romero-Lobato to 57 months’ imprisonment and three years’

5 For example, Romero-Lobato could have petitioned to obtain legal

permanent resident status, sought a waiver under INA § 212(h) and 8 U.S.C. §

1182(h), sought Special Immigrant Juvenile Status, or sought voluntary departure.

App. 12a.

supervision, concurrent with a separate sentence imposed in United States v.

Romero-Lobato, No. 3:18-cr-00049-LRH-CLB (D. Nev.). 1-ER-2–4.

Ninth Circuit Court of Appeals

Romero-Lobato timely appealed the district court’s decision to the Ninth

Circuit, arguing his immigration proceedings were fundamentally unfair under 8

U.S.C. § 1326(d) (1996). App. 2a–6a. Among his challenges, he raised two due

process claims, each of which establishes the fundamental unfairness of his

immigration proceedings under 8 U.S.C. § 1326(d)(3).

First, the July 1996 notice of deportation hearing violated due process by

failing to reasonably apprise Romero-Lobato of the hearing and an opportunity to

contest deportation. App. 2a–3a; 8 U.S.C. § 1326(d)(3) (1996). In support, RomeroLobato relied on the complete lack of record evidence demonstrating that INS either

served or attempted to serve him with the notice of deportation hearing by personal

service or certified mail—the only two statutorily available service methods under 8

U.S.C. § 1252b(a)(2)(A), (f)(1) (1994). This service failure rendered Romero-Lobato

eligible for rescission of his in absentia deportation order under § 1252b(c)(3)(B).

Second, the INS affirmatively misled Romero Lobato by advising in the

September 1996 order to report for deportation that no relief from deportation was

available to him. App. 3a–4a; 8 U.S.C. § 1326(d)(3) (1996). Contrary to this

advisement, the law provided Romero-Lobato an opportunity to reopen the in

absentia deportation order.6 Romero-Lobato’s status as a 15-year-old unmarried

6 See supra, n.5.

minor at the time of the immigration proceedings constituted an exceptional

circumstance warranting rescission of the deportation order under § 1252b(c)(3)(A).

Because Romero-Lobato had multiple, plausible grounds for relief from the

deportation order,7 he argued any purported waiver of review was invalid and

effectively eliminated the availability of administrative remedies and judicial

review. See 8 U.S.C. § 1326(d)(1), (d)(2). However, because the district court did not

address § 1326(d)(1) or (d)(2),8 he requested reversal and remand with instructions

that the district court evaluate whether he also satisfied the administrative

exhaustion and judicial review requirements warranting relief under § 1326(d)

pursuant to Palomar-Santiago, 141 S. Ct. 1615.

In response the government argued, for the first time, that the Ninth Circuit

should apply the “presumption of regularity” doctrine to find the INS complied with

due process in serving the notice of deportation hearing. This doctrine, the

government claimed, permitted the Ninth Circuit to presume INS officials properly

discharged their duties to effectively serve the notice of hearing on Romero-Lobato

despite the lack of evidence to support such a presumption. And while the

government conceded the INS incorrectly advised Romero-Lobato as to available

relief in the September 1996 order to report for deportation, it claimed the general

7 See id.

8 The district court issued its decision before this Court’s decision in United

States v. Palomar-Santiago, 593 U.S. 321 (2021). Palomar-Santiago overruled prior

Ninth Circuit precedent and held a collateral attack on a prior deportation order

must satisfy all three prongs of § 1326(d), not simply the third fundamental

unfairness prong in § 1326(d)(3). 593 U.S. at 325–26. The district court therefore

never addressed whether Romero-Lobato satisfied § 1326(d)(1), or (d)(2).

information contained in the OSCs—issued before and containing contrary

information to the order to report for deportation—were sufficient to notify RomeroLobato of his avenues for relief to seek rescission of an in absentia deportation

order.

Romero-Lobato offered four reasons why the presumption of regularity

should not be applied. First, the government waived the presumption by seeking its

application for the first time on appeal. Second, the presumption “only comes into

play” after the proponent makes a “prima facie showing” the agency complied with

the challenged requirement, but the government never attempted to make that

showing in either the district court or appellate court. Kohli v. Gonzales, 473 F.3d

1061, 1068 (9th Cir. 2007). Third, even if applied, Romero-Lobato rebutted the

presumption because the record lacks any evidence of regularity: there was no

indicia of personal service or a certified mailing, return receipt requested. Fourth,

the unrefuted declaration of Romero-Lobato’s mother asserts she would have

ensured her son attended immigration court if INS had actually served the

deportation hearing notice on him as she had already initiated proceedings for him

to receive LPR status.9

9 Indeed, as Romero-Lobato’s mother petitioned for him to obtain LPR status

before the July 1996 deportation hearing notice issued, Romero-Lobato thus had

every motivation to attend the hearing. See Sembiring v. Gonzales, 499 F.3d 981,

988–89 (9th Cir. 2007) (finding presumption of regularity overcome where petitioner

sought asylum before removal hearing, affirmatively “bringing herself to the

attention of the government” and demonstrating her motivation to attend

immigration proceedings).

Romero-Lobato also explained that, even if INS had properly served the

OSCs on him (a contention he contested), the later-issued order to report for

deportation issued in September 1996 negated the initial advisement to the extent

it advised him “that he did not qualify” for relief from deportation. See United States

v. Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (“A reasonable person in

Melendez-Castro’s position would have been discouraged from applying for

voluntary departure to an extent that it is as if he was told that he did not qualify

for this relief. Melendez-Castro knew he had a criminal record, and heard the

[immigration judge] state without qualification that he would not get this relief. It

is no wonder that he did not formally apply.”).

At oral argument the government made a critical concession: “RomeroLobato’s A-file10 did not contain any evidence indicating the record related to

Romero-Lobato’s notice of [deportation] hearing includes evidence of mailing” that

notice to him as statutorily required under 8 U.S.C. § 1252b(a)(2)(A), (f)(1) (1994)—

“no certified mail receipts, no mailing envelope, no signature, and no postage.” App.

4a. Nor did the government identify any evidence that INS personally served

Romero-Lobato with the notice of hearing.

Split Ninth Circuit Decision

A three-judge panel of the Ninth Circuit issued a split opinion on November

3, 2023. App. 2a–6a. The panel disagreed whether the July 1996 notice of

10 “A-Files contain all records of any active case of an alien not yet

naturalized as they passed through the United States immigration and inspection

process.” Alien Files (A-Files), https://www.archives.gov/research/immigration

/aliens (accessed Apr. 26, 2024).

deportation hearing violated Romero-Lobato’s due process rights. And while the

panel agreed the September 1996 order to report for deportation violated RomeroLobato’s due process rights, it disagreed whether Romero-Lobato’s youth at the time

of deportation constituted an “exceptional circumstance” for purposes of seeking

rescission of the in absentia deportation order under 8 U.S.C. § 1252b(c)(3)(A) to

establish prejudice from either of the due process violations.

Panel Majority

As to the due process violation that Romero-Lobato asserted arose from the

INS’s flawed service of the notice of deportation hearing, the majority readily

acknowledged “the record does not contain evidence that the notice of hearing was

served in the manner required by section 1252b(a)(2).” App. 4a (citing United States

v. Arias-Ordonez, 597 F.3d 972, 977 (9th Cir. 2010) (“We have long held there is a

violation of due process when the government affirmatively misleads an alien as to

the relief available to him.”)). Yet the majority concluded the district court could

permissibly find Romero-Lobato did not show he would have been able to

“demonstrate[ ]” inadequate notice so as to be entitled to rescission.” App. 4a. In

other words, even though the record contains no evidence INS attempted service as

statutorily mandated under § 1252b(a)(2)(A), the majority believed the lack of

evidence favored the government, not Romero-Lobato, for purposes of rescission

under § 1252b(c)(3)(B). See App. 4a–5a. In this way “[t]he majority suggest[ed]” the

statement of Romero-Lobato’s trial counsel that the notice was “sent” in a “mailing”]

is sufficient for the presumption of regularity to apply” and conclude the statutory

service requirements were met. App. 4.

As to the mis-advisement of available relief in the 1996 order to report for

deportation, the majority concluded Romero-Lobato established a due process

violation. App. 4a. The majority, however, did not believe Romero-Lobato’s youth at

the time of deportation qualified as an exceptional circumstance sufficient to seek

rescission of the deportation order under 8 U.S.C. § 1252b(c)(3)(A) to demonstrate

prejudice from the mis-advisement. App. 3a.

Panel Dissent

The dissent agreed with the majority that “Romero-Lobato’s order to report

for deportation affirmatively misled him by telling him that ‘there is no

administrative relief which may be extended to you,’” violating due process. App. 4a.

The dissent, however, concluded it was “unreasonable for the district court to expect

Romero-Lobato to determine that the order to report’s representation about his

rights at the time of his removal was in fact incorrect.” App. 5a. This is because,

“[t]he “immigration laws are complex, [and] minors face a substantial risk of error

in navigating the system.” App. 5a.

The dissent also parted ways with the majority on two issues “related to

Romero-Lobato’s notice of hearing.” App. 4a–5a. The dissent would have

“remand[ed] for the district court to consider”: (1) “whether Romero-Lobato’s due

process rights were also violated by the service of his notice of hearing”; and (2)

whether “for purposes of prejudice” analysis “Romero-Lobato’s notice of hearing was

sent consistent with statutory requirements such that he has a plausible ground for

relief from deportation.” App. 4a–5a. The dissent explained remand was necessary

to evaluate whether the notice of hearing violated Romero-Lobato’s due process

rights on multiple fronts.

As a matter of law, the “the majority confuse[d] the standards for whether

there is a due process violation and whether there is prejudice.” App. 5a. The due

process inquiry asks if “notice was ‘reasonably calculated’” to reach Romero-Lobato.

App. 5a. The prejudice inquiry asks if Romero-Lobato “received notice consistent

with statutory requirements.” App. 5a. “[M]ere mailing [of the notice of hearing] is

insufficient” to resolve the prejudice inquiry in the government’s favor, and “the

majority reache[d] a contrary conclusion by neglecting the statutory requirements.”

App. 5a.

The dissent concluded, no evidence demonstrates the July 1996 notice of

hearing comported with due process by serving the notice on Romero-Lobato either

personally or by certified mail. App. 4a–5a. As a result, the presumption of

regularity suggested by the majority to presume INS’s compliance with its statutory

obligation to serve the notice of hearing personally on Romero-Lobato or by certified

mail does not apply. App. 4a–5a. The “invocation of a presumption of notice requires

the INS to prove that the notice (1) was properly addressed; (2) had sufficient

postage; and (3) was properly deposited in the mails.” App. 4a (quoting BusquetsIvars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir. 2003)). The presumption is thus illfated absent this statutory showing by the government, especially where the

government concedes (as it did here) that no evidence of statutory service exists.

App. 4a–5a.

Rehearing denied

Romero-Lobato timely petitioned for panel rehearing and rehearing en banc.

Ninth Cir. Dkt. 46. Though the dissent voted to grant the petition for rehearing and

rehearing en banc, the petition was denied. App. 1a.

Reasons for Granting the Petition

This Court should grant review to correct the Ninth Circuit’s erroneous belief

that juvenile status cannot constitute a basis to seek rescission of an in absentia

order under 8 U.S.C. § 1252b(c)(3)(A) (1994). This provision allows deported

noncitizens to move to reopen the detention hearing and seek rescission of the in

absentia deportation order more than 180 days after its issuance by showing they

failed to appear at the hearing because of either compelling circumstances or failure

to receive the required statutory notice of the deportation hearing. 8 U.S.C.

§ 1252b(c)(3). Failure to comply with this process, in turn, allows criminal

defendants to collaterally attack the in absentia deportation order in a criminal

prosecution for unlawful reentry under 8 U.S.C. § 1326.

The Ninth Circuit, in a split decision, erroneously: (1) limited the compelling

circumstances sufficient to seek rescission, flatly excluding juvenile status as a

qualifying circumstance; and (2) ignored the statutory service requirements INS

must undertake to serve a deportation hearing notice and improperly presumed

service occurred. The Ninth Circuit’s rejection of juvenile status as a compelling

circumstance cannot be squared with this Court’s historical tradition of considering

minor status as a compelling basis to treat minors differently than adults under our

laws. And the Ninth Circuit’s application of the presumption regularity doctrine

conflicts with the approach applied by the Second and Third Circuits. As the Ninth

Circuit reviews the national majority of deportation decisions and criminal

prosecutions for unlawful reentry under 8 U.S.C. § 1326, it is important that the

Ninth Circuit honor this Court’s historical tradition of protecting minors and

properly apply the presumption of regularity doctrine. This Court should grant the

petition for a writ of certiorari and reverse.

The Ninth Circuit impermissibly limited the compelling

circumstances that may be considered to rescind a deportation

order under 8 U.S.C. § 1252b(c)(3) (1994).

Compelling circumstances under 8 U.S.C § 1252b(c)(3)(A)

(1994) should include the youth of the noncitizen.

It is estimated there are more than 1.1 million undocumented minors in the

United States.11 However, the undocumented minor of today “may well be the legal

alien of tomorrow.” Plyler v. Doe, 457 U.S. 202, 207 (1982) (quoting Doe v. Plyler,

458 F. Supp. 569, 577 (E.D. Tex. 1978)). Undocumented minors, however, face

incredible obstacles to obtaining legal status through no fault of their own as they

are especially vulnerable to the United States’ complex maze of immigration policies

and procedures. Sadly, their failure to successfully navigate this maze may result in

their deportation to an unfamiliar country, completely separated from their families

and “the loss of all that makes life worth living.” Bridges v. Wixon, 326 U.S. 135,

147 (1945) (cleaned up). To compound this hardship, once deported, these minors

11 Unauthorized Immigrant Population: National and State Trends, Pew

Research Center (2010), https://www.pewresearch.org/raceandethnicity

/2011/02/01/unauthorized-immigrant-population-brnational-and-state-trends-2010/

(accessed May 4, 2024).

are forever subject to criminal prosecution and punishment if they return to the

United States without authorization. See 8 U.S.C. § 1326.

Despite the deleterious impact of deportation, Congress permits deportation

orders to be issued in absentia if the INS “establishe[d] by clear, unequivocal, and

convincing evidence that”: (1) it provided written notice of the deportation hearing

to the minor in accord with the statutory procedural requirements; and (2) the

minor is deportable. 8 U.S.C. § 1252b(a)(2), (c)(1).

At the same time, Congress also provided avenues for relief from in absentia

deportation orders. 8 U.S.C. § 1252b(c)(3). For example, noncitizens long ago

ordered deported in absentia may move to reopen their deportation hearings and

rescind the deportation order by demonstrating their “failure to appear” was due to

“compelling” circumstances” “beyond their control.” 8 U.S.C. § 1252b(c)(f)(2)

(defining exceptional circumstances), (c)(3)(A) (permitting rescission of deportation

order more than 180 days after its issuance upon showing of exceptional

circumstances). Congress provided non-exclusive examples of circumstances beyond

a deported noncitizen’s control—the minor suffered a “serious illness,” the “death of

immediate relative” of the minor, or other “compelling circumstances.” Id. To assess

the existence of such circumstances, court must “look[] to the particularized facts

presented in each case.” Singh v. I.N.S., 213 F.3d 1050, 1052 (9th Cir. 2000).

This Court should find the minority status of the noncitizen at the time of the

deportation proceedings falls among the compelling circumstances under

§ 1252b(c)(3)(A) to warrant rescission. Age is undeniably a circumstance beyond a

minor’s control. It is also a status that inherently limits a minor’s physical and

mental abilities, as well as socioeconomic status. Indeed, “the regulatory

framework” governing the notice of the deportation hearing to minors “assumes that

a juvenile over fourteen is not competent to assure his presence at the hearing.”

Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157 (9th Cir. 2004) (referencing INA §

242.24).

Yet the federal circuits have not deemed a noncitizen minor’s age at the time

of deportation proceedings to be a compelling circumstance sufficient to warrant

rescission. See e.g., App. 3a; Ortiz v. Barr, 819 F. App’x 546, 547–48 (9th Cir. 2020)

(finding no law supports the argument that the age of a minor during deportation

proceedings should be considered an exceptional or compelling circumstance);

Llanos-Fernandez v. Mukasey, 535 F.3d 79, 85 (2d Cir. 2008) (it is “logical for the

regulations to provide that minors entering the country illegally can be responsible

for receiving notice regarding their court proceedings and yet also provide that

minors may need assistance from adults to obtain basic necessities”).

Rather, courts have found compelling circumstances to be limited to:

(1)

“physical reasons, such as serious illness, or by reason of a moral

imperative, such as the death of an immediate relative,” Mardones v. McElroy, 197

F.3d 619, 624 (2d Cir. 1999);

(2)

the receipt of ineffective assistance of counsel concerning the

immigration proceedings, Aris v. Mukasey, 517 F.3d 595, 599 (2d Cir. 2008);

Iturribarria v. I.N.S., 321 F.3d 889, 897–98 (9th Cir. 2003);

(3)

the “timely filing of a motion to reopen deportation proceedings before

[the] scheduled voluntary departure date,” Barrios v. Att’y Gen. of U.S., 399 F.3d

272, 275 (3d Cir. 2005); and

(4)

in some cases, failing to appear on time for the deportation hearing on

time, Nazarova v. I.N.S., 171 F.3d 478, 485 (7th Cir. 1999); Jerezano v. I.N.S., 169

F.3d 613, 615 (9th Cir. 1999).

The compelling circumstances sufficient to warrant rescission, however, are

not as limited as the circuits have interpreted. This Court has repeatedly “stated

that in the absence of a statutory definition we ‘start with the assumption that the

legislative purpose is expressed by the ordinary meaning of the words used.’”

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47 (1989) (citations

omitted). This analysis is undertaken “in the light of the ‘object and policy’ of the

statute. Id. (cleaned up).

Applying the ordinary meaning of the words in § 1252b(c)(3)(A), (f)(2), a

noncitizen’s age at the time of the deportation proceedings, a compelling

circumstance is one beyond the minor’s control that has “the power to persuade.”

“Compelling.” Merriam-Webster.com, https://www.merriam-webster.com/

thesaurus/compelling (accessed May 5, 2024). The examples provided to warrant

rescission—serious illness or death of a family member—are manifestly

nonexclusive as the statute that also specifically permits equally persuasive

grounds to provide relief.

There is no valid reason to exclude a noncitizen’s juvenile status as a

compelling ground sufficient to obtain rescission of an in absentia deportation order.

Rather, “[c]hildren have a very special place in life which law should reflect.” May v.

Anderson, 345 U.S. 528, 536 (1953) (J. Frankfurter, concurring). This Court has

thus repeatedly concluded minors should be treated differently from adults under

our laws. Perhaps the most obvious reason for protecting minors is that, as a class,

minors are developmentally and neurologically less developed than adults,

rendering minors less culpable than adults. Roper v. Simmons, 543 U.S. 551, 569

(2005) (“scientific and sociological studies . . . [a] lack of maturity and an

underdeveloped sense of responsibility are found in youth more often than in

adults”); Eddings v. Oklahoma, 455 U.S. 104, 116 (1982) (minors, even those who

have reached the age of 16, customarily “‘‘lack the experience, perspective, and

judgment’ expected of adults, even those at age 16”) (quoting Bellotti v. Baird, 443

U.S. 622, 635 (1979)).

This Court has thus concluded “[t]he susceptibility of juveniles to immature

and irresponsible behavior means ‘their irresponsible conduct is not as morally

reprehensible as that of an adult.’” Roper, 543 U.S. at 570 (quoting Thompson v.

Oklahoma, 487 U.S. 815, 835 (1988)). This “vulnerability and comparative lack of

control over their immediate surroundings mean juveniles have a greater claim

than adults to be forgiven” for their conduct. Id.

Minor status is thus at least as compelling a circumstance as receiving

incorrect legal advice, inadvertently arriving late to the deportation hearing,

suffering serious illness, or experiencing the death of a family member. Mardones,

197 F.3d at 624; Aris, 517 F.3d at 599; Iturribarria, 321 F.3d at 897–98; Nazarova,

171 F.3d at 485; Jerezano, 169 F.3d at 615. Given the lack of control over one’s

minor status and the lessened moral culpability traditionally attendant to it, this

Court should conclude a noncitizen’s minority status at the time of in absentia

deportation proceedings is a compelling circumstance that may provide grounds to

seek rescission of the underlying deportation order.

The Ninth Circuit’s decision is incorrect.

The Ninth Circuit concluded the INS’s mis-advisement in its 1996 order to

report for deportation violated Romero-Lobato’s due process rights. App. 3a.

Without engaging in any analysis, the Ninth Circuit erroneously concluded this due

process violation did not prejudice Romero-Lobato because his minor status at the

time of deportation was not a “compelling circumstance” that reflected an

“impediment comparable to serious illness or death of a relative” under 8 U.S.C. §

1252b(c)(3)(A). App. 3a–4a. The court thus found no basis to warrant to reopen his

deportation hearing and seek rescission of the in absentia deportation order entered

when he was just 15 years old. App. 3a–4a.

The Ninth Circuit’s position that Romero-Lobato had a due process right

without a remedy for the violation of that right finds no support in this Court’s

decisions which recognize minor status as a circumstance warranting special

consideration and protection. See Roper, 543 U.S. at 569; Johnson v. Texas, 509 U.S.

350, 367 (1993); Eddings, 455 U.S. at 116; May, 345 U.S. at 536 (J. Frankfurter,

concurring). The Ninth Circuit’s refusal to honor this well-regarded tradition is

untenable.

The Ninth Circuit’s decision also contravenes the plain language of 8 U.S.C.

§ 1252b(c)(3)(A) and (f)(2). Congress’s choice to use the term “compelling

circumstances” to qualify for relief is broader than the Ninth Circuit espoused. This

longstanding precedent makes clear minor status has persuaded this Court in its

decisions. See supra, p. 21. No authority from this Court supports the Ninth

Circuit’s very narrow interpretation of this term.

There is also no legitimate policy interest served by the Ninth Circuit’s

departure from this Court’s recognition that minor status presents a compelling

interest sufficient to receive judicial protection. To the contrary, the Ninth Circuit’s

decision contravenes one of the rather broadly written safeguards Congress

implemented to provide relief from in absentia orders—the existence of a compelling

circumstance beyond one’s control.

This important issue warrants the Court’s review.

“The very essence of civil liberty . . . consists in the right of every individual

to claim the protection of the laws, whenever he receives an injury. One of the first

duties of government is to afford that protection . . . .” Marbury v. Madison, 5 U.S.

137, 163 (1803). Thus, “every right, when withheld, must have a remedy, and every

injury its proper redress.” Id. Whether a noncitizen may move to reopen a closed in

absentia deportation proceeding—that occurred during minority and with an

established due process violation—is an important question warranting this Court’s

review. Otherwise, the due process guaranteed by the INA’s procedures is no right

at all.

Indeed, in the decades since the INA’s enactment, no federal court has

recognized minority status alone as a compelling circumstance to qualify for

rescission of in absentia deportation order. The lifelong hardships suffered by

deported minors and the criminal sanctions likely to be imposed upon their return

are too serious to allow courts to exclude minor status as a compelling circumstance

under 8 U.S.C. § 1252b(c)(3)(A), (f)(2), especially where, as here, the INS

unquestionably violated the minority’s due process rights. This Court’s intervention

is warranted.

II.

The Ninth Circuit has impermissibly expanded the presumption

of regularity beyond its capabilities.

The presumption of regularity doctrine.

The presumption of regularity is a judicial doctrine invoked to “reflect[]

respect for a coordinate branch of government whose officers not only take an oath

to support the Constitution, . . . but also are charged with “faithfully execut[ing]”

our laws.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2579–80 (2019) (J. Thomas, J.

Gorsuch, J. Kavanaugh, concurring in part) (citing United States v. Morgan, 313

U.S. 409, 422 (1941) (presumption of regularity ensures that the “integrity of the

administrative process” is appropriately respected)). As such, “[w]here there are

equally plausible views of the evidence, one of which involves attributing bad faith

to an officer of a coordinate branch of Government, the presumption compels giving

the benefit of the doubt to that officer.” Id. at 2583; see also U.S. Postal Serv. v.

Gregory, 534 U.S. 1, 10 (2001) (“a presumption of regularity attaches to the actions

of Government agencies).

But the presumption is far from impenetrable. The presumption only

supports a finding that “the official acts of public officers” were “properly

discharged” in “the absence of clear evidence” to the contrary. United States v.

Chem. Found., Inc., 272 U.S. 1, 14–15, 4 (1926). The presumption “affords a party,

for whose benefit the presumption runs, the luxury of not having to produce specific

evidence to establish the point at issue.” Snyder v. McDonough, 1 F.4th 996, 1004

(Fed. Cir. 2021) (citation and emphasis omitted). But to benefit from the

presumption, that party must produce “predicate evidence” to trigger the

presumption. Id. Only then may “the further evidentiary gap [be] filled by the

presumption.” Id.

Federal courts have addressed the presumption’s applicability where there is

no claim the public official personally served the required notice through “certified

mail, return receipt requested” as the governing statutes commands. Santana

Gonzalez v. Att’y Gen. of U.S., 506 F.3d 274, 277 (3d Cir. 2007) (citing 8 U.S.C. §

1252b(a)(2)(A)). In such cases, the government may trigger the rebuttable

presumption of regularity by producing a “certified mail log (or equivalent).”

O’Rourke v. United States, 587 F.3d 537, 540 (2d Cir. 2009); see also Clough v.

Comm’r, 119 T.C. 183, 186-188 (2002) (certified mail list represents direct

documentary evidence of date and fact of mailing, and compliance with certified

mail list procedures raises presumption of official regularity in mailing); Follum v.

Comm’r, 128 F.3d 118, 121 (2d Cir. 1997) (trial court can accept certified mail list as

sufficient proof that notice was sent by certified mail). In such cases, where a paper

trail exists for the certified mail, a presumption of regularity makes sense. See

Sembiring v. Gonzales, 499 F.3d 981, 987 (9th Cir. 2007). Without predicate

evidence, however, the presumption is not triggered. Snyder, 1 F.4th at 1004.

Federal courts have also addressed what opponents must present to rebut the

presumption that a notice was issued through certified mail. “Though a statement

of nonreceipt standing alone is not enough to rebut the presumption, a statement of

nonreceipt coupled with other evidence can be.” Romero v. Tran, 33 Vet. App. 252,

264 (2021). That “other evidence” can include “clear evidence” that the agency’s

service procedures were “not regular” or not regularly followed. Id. ; see also Cones

v. Wilkie, 825 F. App’x 841, 843 (Fed. Cir. 2020) (same).

The Ninth Circuit misapplied the presumption of

regularity, splitting from the Second and Third Circuits.

The presumption of regularity does not work as both the sword and the shield

to protect the officials acts of public officials from scrutiny. Instead, when

considering the applicability of the presumption, courts must balance the existence

of predicate evidence triggering the presumption against the evidence presented

rebutting the presumption. The Ninth Circuit majority opinion did neither here.

Unlike the Second and Third Circuits, the Ninth Circuit applied the

presumption of regularity despite the absence of a paper trail to demonstrate the

notice of deportation hearing was sent to Romero-Lobato via certified mail, return

receipt requested, or its equivalent. Compare, O’Rourke, 587 F.3d at 540, and

Santana Gonzalez, 506 F.3d at 277, with App. 3a–5a. This is especially troubling

given: (1) INS’s demonstrated history of failing to properly serve Romero-Lobato

with immigration documents (e.g., by failing to properly serve the 1995 and 1996

OSCs and using an incorrect mailing address for immigration documents purported

to have been sent to Romero-Lobato); (2) INS’s history of misadvising RomeroLobato of his rights (e.g., by misadvising him as to available forms of relief from

deportation); and (3) the government’s concession that Romero-Lobato’s A-file

contains no evidence the 1996 notice of deportation hearing was sent by certified

mail to Romero-Lobato (e.g., no receipts, no signatures, no postage).

It is important for this Court correct the Ninth Circuit’s

opinion.

A presumption of regularity simply cannot be applied absent predicate proof

of regularity. Snyder, 1 F.4th at 1004. The Ninth Circuit’s decision, if left

uncorrected, stands to allow violations of law committed by public officials to be

excused based on a presumption of regularity, despite no evidence of regularity.

This Court should not permit the presumption doctrine to be abused in this way.

Otherwise, the presumption does far more than promote respect for public officials’

decisions—it inoculates those decisions from review no matter the egregiousness of

the illegality and without a legitimate basis to predicate such protection.

III.

This case presents an ideal vehicle for review.

This case is an ideal vehicle for the Court to address whether a minor status

constitutes a compelling circumstance under 8 U.S.C. § 1252b(c)(3)(A), (f)(2), and

the limits of the presumption of regularity doctrine. These issues are each squarely

presented and preserved for adjudication.

Conclusion

This Court should grant this petition for a writ of certiorari.

Dated: May 8, 2024.

Respectfully submitted,

RENE L. VALLADARES

Federal Public Defender

s/ Amy B. Cleary

Amy B. Cleary

Counsel of Record

Assistant Federal Public Defender

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.