U.S. v. Ubaldo-Figueroa

• Decision Date: 07 April 2004
• Docket Number: No. 01-50376.,01-50376.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isidro UBALDO-FIGUEROA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

364 F.3d 1042

UNITED STATES of America, Plaintiff-Appellee, v. Isidro UBALDO-FIGUEROA, Defendant-Appellant.

No. 01-50376.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2003.

Filed April 7, 2004.

COPYRIGHT MATERIAL OMITTED

Steven F. Hubachek, Federal Defenders of San Diego, Inc., (argument) and Wendy S. Gerboth, San Diego, California (brief), for the defendant-appellant.

Carol C. Lam, United States Attorney, Shanna L. Dougherty, Assistant U.S. Attorney (on the brief), Mark R. Rehe, Assistant U.S. Attorney (on petition for rehearing), United States Attorney's Office, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding, D.C. No. CR-00-02221-J.

Before: PREGERSON, REINHARDT, and ARCHER, Jr.,^* Circuit Judges.

PREGERSON, Circuit Judge:

In this appeal, we address a challenge concerning the retroactivity of a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Specifically, we consider the retroactive reach of IIRIRA § 304, which eliminated the discretionary relief from deportation available under former INA § 212(c).

We AFFIRM in part and REVERSE in part.

FACTUAL AND PROCEDURAL HISTORY

Statutory Scheme

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), and the Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214, ("AEDPA"). Together, these acts substantially changed the criteria for removal of Legal Permanent Residents (LPRs) and the availability of possible relief from removal for LPRs.¹ Relevant to this case, IIRIRA brought about two changes that affected petitioner Isidiro Ubaldo-Figueroa.

First, effective April 1, 1997, IIRIRA § 304 repealed Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182(c) (1994 ed.), which provided certain deportable aliens with relief from deportation. Former INA § 212(c) permitted the Attorney General to waive deportation for immigrants who had been convicted of a crime classified as an "aggravated felony."²

Second, IIRIRA and AEDPA broadened the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43), to encompass burglary offenses for which a term of at least one-year imprisonment was imposed. IIRIRA § 321(a)(3); 8 U.S.C. § 1101(a)(43)(G) (1994 ed., Supp V.). Previously, the crime of burglary did not constitute an "aggravated felony" unless the term of imprisonment was at least five years.³ 8 U.S.C. § 1101(a)(43) (1994 ed.). See St. Cyr, 533 U.S. at 295 n. 4, 121 S.Ct. 2271 ("While the term [aggravated felony] has always been defined expansively, it was broadened substantially by IIRIRA."). Aggravated felonies defined under § 1101(a)(43) are criminal offenses that serve as a ground for removing an alien from the United States.

Congress expressly stated that the new definition of crimes that constitute "aggravated felonies" under IIRIRA § 321 shall apply retroactively. IIRIRA § 321(b) (the expanded definition of "aggravated felony" applies "regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph."). Such retroactive application made a significant number of legal immigrants deportable for crimes they committed before the enactment of IIRIRA — crimes which previously were not considered to be "aggravated felonies." St. Cyr, 533 U.S. at 318-19, 121 S.Ct. 2271.

Isidro Ubaldo-Figueroa

As a result of these retroactive changes, Ubaldo-Figueroa, a legal permanent resident of the United States, became deportable for a crime he committed three years before IIRIRA was enacted. Ubaldo-Figueroa's background, as reported in his Presentence Report, is undisputed. He was born on August 14, 1971 in Paracho, Michoacan, Mexico. After his father suffered an embolism in 1985, Ubaldo-Figueroa emigrated to this country to find work to help support his family. He was fifteen years of age. From 1985 to 1989, he worked as a field worker in various farms throughout the state of Oregon. Around 1989, Ubaldo-Figueroa moved to Orange County, California, and began work at the Rocky Mountain Water Company, in Santa Fe Springs, California. That same year, at the age of eighteen, he was granted a Special Agricultural Worker residency permit. In 1992, Ubaldo-Figueroa was granted Legal Permanent Residency status.

Ubaldo-Figueroa worked at Rocky Mountain continuously for the next eleven years as a forklift operator, truck loader, and machine operator.⁴ While employed at Rocky Mountain, Ubaldo-Figueroa met and married his wife, Petra Torres-Hernandez his co-worker at Rocky Mountain. Ms. Torres-Hernandez is a United States citizen. In 1990, Ubaldo-Figueroa and his wife had their first child, Miguel Ubaldo-Torres. In 1991, they had another child, Isidro Ubaldo-Torres. His children are both United States citizens. The record indicates that Ubaldo-Figueroa is committed to his children's education; he frequently attends parent-teacher conferences and school events. He stated that he is involved in his sons' education because he wants to provide his children with a better education than he had as a child.

In 1993, Ubaldo-Figueroa pleaded guilty to one count of attempted first degree burglary of a dwelling, in violation of California Penal Code § 459 and § 664. He was sentenced to three months of home confinement and three years probation. Under the law in effect in 1993, his conviction did not render him deportable. Ubaldo-Figueroa submitted evidence that during his plea negotiations, he relied on the immigration law as it existed then to plea to an offense that would not render him deportable because he knew "[d]eportation would mean certain separation from the rest of my family. The lives of my wife and children are firmly rooted here in the United States and, as United States citizens they are eligible for opportunities and benefits that are not available to them in Mexico." On November 22, 1995, the court revoked his probation and he was sentenced to two years in state prison.⁵

Procedural History

1. Removal Proceedings

Almost five years after Ubaldo-Figueroa pleaded guilty to attempted burglary, the INS retroactively applied the expanded deportation criteria enacted in IIRIRA § 321 to him and initiated removal proceedings against him on the basis of his 1993 attempted burglary conviction. On March 31, 1998, an Immigration Judge ("IJ") conducted a removal hearing for Ubaldo-Figueroa. During the hearing, Ubaldo-Figueroa was represented by counsel and had a Spanish language interpreter.

During the hearing, the IJ tentatively stated in English that Ubaldo-Figueroa may be eligible for § 212(h) relief; this statement was not translated into Spanish. At the end of the hearing, however, the IJ ruled that he had considered all areas of law by which Ubaldo-Figueroa may be permitted to remain in the United States and concluded that none applied. The IJ thus ordered Ubaldo-Figueroa removed to Mexico, and the INS deported him to Mexico on the same day. The IJ did not inform Ubaldo-Figueroa of his right to appeal his removal order. The IJ's only reference to an appeal was when he posed a question to Ubaldo-Figueroa's counsel: "Counsel you want to accept that as a final order or do you want to reserve an appeal?" Counsel for Ubaldo-Figueroa responded:"We'll accept it as a final order your honor." This colloquy between the IJ and Ubaldo-Figueroa's counsel, mentioning an appeal, was not translated into Spanish. The interpreter translated only three parts of the hearing for Ubaldo-Figueroa: when the IJ swore in Ubaldo-Figueroa, when the IJ asked Ubaldo-Figueroa to state his name, and when the IJ issued his final ruling. The interpreter did not translate the IJ's and his counsel's discussion regarding their agreement to change Ubaldo-Figueroa's charging document to alter the grounds on which Ubaldo-Figueroa was being removed.

2. District Court Proceedings

The INS twice arrested Ubaldo-Figueroa after he had been deported to Mexico and then found in the United States. First, on May 27, 2000, Ubaldo-Figueroa was arrested and charged with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. This charge was dismissed, and he was returned to Mexico. On June 30, 2000, Ubaldo-Figueroa was again arrested in the United States. On July 12, 2000, a grand jury indicted Ubaldo-Figueroa in the Southern District of California, charging him with two counts of being an alien found within the United States after deportation in violation of 8 U.S.C. § 1326.

Ubaldo-Figueroa filed a motion to dismiss the two-count indictment. He mounted a collateral attack against his 1998 removal proceedings. Specifically, Ubaldo-Figueroa argued that his removal order was obtained in violation of his due process rights because the IJ failed to inform him of his possible eligibility for relief from deportation under § 212(c) or his right to appeal the IJ's decision. Thus, Ubaldo-Figueroa contended, he was impermissibly deprived of an opportunity to seek judicial review of his removal order. Ubaldo-Figueroa argued that he was prejudiced by the constitutional errors in his removal hearing because he could have challenged his removal order on two grounds: (1) the retroactive application of IIRIRA § 321 violated his right to due process, and (2) he was eligible for relief from removal under former INA § 212(c).

The district court held that the INS violated Ubaldo-Figueroa's due process rights because his 1998 removal proceedings were not translated into Spanish. Because the hearing was not translated, Ubaldo-Figueroa was not properly advised of the grounds on which he was being deported, his possible eligibility of relief from deportation, or his right to appeal his removal order in violation of his right to due process of...