Metropolitan News-Enterprise


Friday, July 28, 2017


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Ninth Circuit Reverses Conviction for Illegal Reentry

Panel Says Immigration Judge Should Have Explained Proceedings ‘More Fully’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed the conviction of a man for illegal reentry into the United States and ordered that the indictment charging him be dismissed because the immigration judge didn’t advise him that he could pursue his pending application for asylum.

The court, in a memorandum opinion, said that Daniel Rivera was denied due process in the underlying removal proceedings because the immigration judge did not “more fully explain the proceedings.”

Rivera told the immigration judge that his application for asylum had been pending for more than five years. She interrupted him to inquire if he wanted to file a new application, and when he said he did not, she declared he was removable.

The appeals panel—composed of Judges Stephen Reinhardt, Ferdinand Hernandez, and Kim Wardlaw—said:

“Rivera’s actions at the removal hearing clearly indicated his confusion. He demonstrated a desire to stay in the United States—first by asking for a lower  bond, then by asking what he could do to remain, and finally by indicating a desire to appeal. And yet he declined to apply for the only form of relief that would enable him to remain. These confusing actions put the IJ on notice that Rivera was lost in ‘the morass of immigration law.’… The IJ was also on notice that Rivera had an already-pending asylum application and that his reasons for not applying for relief were based on concerns about delay. Nevertheless, the IJ did not adjudicate Rivera’s pending application or explain that a new application would be processed quickly. These failures violated Rivera’s due process rights, particularly in light of his pro se status.”

The panel added:

“If the IJ had cither adjudicated Rivera’s pending application or explained that a new application would be processed quickly, Rivera would undoubtedly have sought and plausibly obtained relief from removal.”

Under these circumstances, the opinion said, Judge John F. Walter of the Central District of California should have dismissed the indictment.

The case is U.S.A. v. Rivera, No. 16-50115.


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