Wednesday, January 6, 2016
Ninth Circuit Declares
Unlicensed Driver Who Caused Injuries Can Be Deported
Judge Pregerson Dissents, Saying Consequences Are Harsh
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals has affirmed—over an impassioned dissent—a decision to deport a California woman who, driving without a license, crashed into cars and pedestrians, resulting in serious injuries.
The woman, Tania Ramiriz (also known as Tania Bernal), will be sent to Mexico, where she was born and remains a citizen, under the decision of the Board of Immigration Appeals, which the court upheld Monday in an unpublished order.
Ramiriz pled guilty to two counts of assault with a deadly weapon, as well as two counts of leaving the scene of an accident, and was sentenced to two years in prison.
California Department of Corrections records show that the offense occurred on Nov. 18, 2011, Ramiriz was sentenced on Feb. 9, 2012, admitted to prison two weeks later, and was released on parole on Aug. 5, 2013. She has been held since then in a federal detention center in Arizona, according to information that emerged at oral argument.
In yesterday’s decision, Judges Mary M. Schroeder and Michelle T. Friedland found that Ramiriz, a legal permanent resident, is subject to deportation as a person who committed an “aggravated felony.” That category, they noted, which includes “a crime of violence...for which the term of imprisonment [is] at least one year.”
Assault with a deadly weapon, the opinion pointed out, is a “crime of violence.”
Ramiriz, 27, sought protection under the Convention Against Torture (“CAT”). The judges responded:
“Substantial evidence supports the BIA’s conclusion that Ramirez did not satisfy her burden of demonstrating that she would more likely than not be tortured upon return to Mexico.”
Pregerson Expresses Concerns
Dissenting, Judge Harry Pregerson wrote:
“For all intents and purposes, Tania Casandra Bernal is an American. She has spent almost her entire life here: she was brought to the U.S. as an infant; she grew up surrounded by her family, all citizens or lawful permanent residents; and, as an older student, she was in the process of finishing high school. And like many Americans, she had begun to build her own family: she married a U.S. citizen, Andres Bernal, and together they gave life to a U.S. citizen baby girl named Andrea Erin Bernal.
“Yet Tania Casandra Bernal, despite her strong ties to America, is suffering more severe punishment than had she been born in the U.S. Sentenced to two years in prison, she has now spent three years behind bars in a state prison and an immigration detention center. She faces an additional harsh penalty—removal to a country she does not know and that she fears.
“This harsh punishment is one she will not bear alone: her five-year-old daughter Andrea, a U.S. citizen by birth, will also suffer because her mother is taken from her: she will be deprived of her mother’s love, counsel, and presence for many, many, many years.”
Pregerson quoted a 1977 U.S. Supreme Court opinion as saying:
“Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”
At oral argument on Nov. 2, Phoenix attorney Christopher John Stender argued that Ramiriz had engaged in “reckless driving,” prompting Friedland to remind him that she was convicted of “assault with a deadly weapon, not reckless driving.”
When the lawyer asserted that “she had no intent to harm anyone,” she interjected:
“And she hit someone and then she kept driving and she hit someone else and she hit more cars and she kept driving and she hit more cars. I mean, this was assault with a deadly weapon and that’s what she was convicted of.”
Stender mentioned that there was “no alcohol, no drugs” involved.
Pregerson commented that “there are a lot of equities in her favor.”
He noted that “she wanted to take the laundry to the laundromat and her husband was, I guess, to tired to drive her there,” but “really didn’t know how to drive.”
Government Leniency Sought
He expressed the hope that the government would exercise is discretion not to “continue to seek to kick her out of the country,” and when District of Columbia attorney Jeremy M. Bylund came to the podium to present the case for the government, Pregerson asked:
“Why can’t we work something out for her?”
“She panicked. She’s not a criminal.
“Why should we break up this panel.”
Noting her long incarceration, he asked:
“Hasn’t she been punished enough?”
Bylund responded that her offense was a serious one.
He said that to question whether she possessed the requisite intent for an assault with a deadly weapon would constitute a collateral attack on the California judgment.
The case is Ramirez v. Lynch, 14-71528.
Copyright 2016, Metropolitan News Company