Mendez-Alcaraz v. Gonzales

• Decision Date: 02 October 2006
• Docket Number: No. 04-74268.,04-74268.
• Citation: 464 F.3d 842
• Parties: Tomas Alejandro MENDEZ-ALCARAZ, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 842

464 F.3d 842

Tomas Alejandro MENDEZ-ALCARAZ, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 04-74268.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2005.

Filed October 2, 2006.^**

Philip James Smith (argued), Nicole Hope Nelson (briefed), Hecht & Smith, LLP, Portland, OR, for the petitioner.

Janice K. Redfern (argued), John C. Cunningham (briefed), Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A90-333-894.

Before: FERGUSON, KLEINFELD, and GRABER, Circuit Judges.

KLEINFELD, Circuit Judge:

The BIA correctly dismissed as untimely Mendez-Alcaraz's motion to reconsider.

Facts

Mendez-Alcaraz, an alien with lawful permanent residence status, pleaded guilty in 1996 to sexual abuse of a minor.¹ He was sentenced to 75 months in prison and 120 months of "post-prison supervision." He spent three years in a juvenile detention facility and another three in a state prison. When his imprisonment for sexual abuse of a minor ended, the INS took Mendez-Alcaraz into its custody and sought removal based on the conviction.² Mendez-Alcaraz conceded removability, designated Mexico as the country to which he would be removed, and stated that he wished to apply for waiver of deportation. He was 16 when he committed the felony, 23 when he conceded removability and waived appeal. There is, and was at the time of Mendez-Alcaraz's guilty plea to sexual abuse of a minor, no discretionary relief from removal available to an aggravated felon who had served a prison term of five years or more.³

At the time of his removability hearing, we had not yet held that sexual abuse of a minor was an "aggravated felony" for purposes of this statute. (The statute was amended expressly to make it one, but the effective date of the amendment was after Mendez-Alcaraz's guilty plea.⁴) The immigration judge ("IJ") held that the crime was an aggravated felony, but recognized that it was an arguable issue, saying "I could be wrong on this. There is a significant legal issue. Do you understand that?," to which Mendez-Alcaraz responded "yes."

The IJ ordered Mendez-Alcaraz removed to Mexico. Mendez-Alcaraz expressly waived appeal after conferring with counsel. He moved to Mexico in January 2003, in compliance with the order of removal. Mendez-Alcaraz's brief alleges that he has neither reentered nor attempted to reenter the United States since that time.

Fourteen months after the hearing and removal order (and waiver of appeal), Mendez-Alcaraz moved for reconsideration, on the theory that when he pleaded guilty to sexual abuse of a minor, it was not an aggravated felony. The IJ denied the motion because "[t]he same arguments were raised at trial. Respondent could have reserved and filed appeal. There is nothing `new' or `different' now." Mendez-Alcaraz appealed the denial of reconsideration to the BIA. It dismissed, agreeing with the IJ's decision, and adding several alternative grounds: (1) the IJ and BIA had no jurisdiction to grant reconsideration because Mendez-Alcaraz had been removed to Mexico;⁵ (2) the motion was untimely, having been filed long after the 30 day time limit;⁶ and (3) the crime was retroactively reclassified as an aggravated felony and he served five years or more.⁷ Mendez-Alacaraz petitions for review.

Analysis

We must first decide whether Mendez-Alcaraz's removal to Mexico deprives us of jurisdiction to decide this petition for review from the denial of his motion for reconsideration. The answer would have been that it did, before the "transitional rules" period⁸ under IIRIRA ended and the "permanent rules" period⁹ began, on April 1, 1997.¹⁰ The IIRIRA "permanent rules"¹¹ do not include the old jurisdiction-stripping provision for excluded, deported, or removed aliens.¹² "We now may entertain a petition after the alien has departed."¹³

The BIA based its dismissal of Mendez-Alcaraz's appeal on three independent grounds. Because untimeliness is dispositive, we need not reach the other issues.¹⁴

Though Mendez-Alcaraz missed the 30 day deadline for filing his motion, he argues that the deadline should be equitably tolled. The deadline can be equitably tolled for various reasons, such as that "despite all due diligence, the party invoking equitable tolling is unable to obtain vital information bearing on the existence of the claim."¹⁵ Tolling requires that "his or her ignorance of the limitations period was caused by circumstances beyond the party's control, and that these circumstances go beyond a garden variety claim of excusable neglect."¹⁶

Mendez-Alcaraz argues that the IJ deprived him of the knowledge he needed by telling him that his crime was indeed an aggravated felony, and "[l]iving in Mexico, Mr. Mendez was unaware" of two decisions that would have made aggravated felony classification arguable, and "through reasonable diligence could not have discovered" these cases.

We cannot accept this argument. There is no claim that the internet and law libraries do not exist in Mexico. Moreover, the IJ expressly told Mendez-Alcaraz that he "could be wrong on this. There is a significant legal issue," before asking if Mendez-Alcaraz wanted to appeal. We further note that Mendez-Alcaraz had counsel then and now.

PETITION DENIED.

FERGUSON, Circuit Judge, dissenting:

I.

The government removed Tomas Mendez-Alcaraz ("Mendez") from this country based on a criminal conviction that violated his procedural due process rights under the Fourteenth Amendment to the U.S. Constitution. Because such an unconscionable result cannot be affirmed, I dissent.

II.

Shortly after his sixteenth birthday, petitioner Mendez, a lawful permanent resident of the United States, was subjected to an unlawful application of state law that cost him not only six years of his freedom, but also his ability to stay in the United States.

Although the laws of the United States and the state of Oregon, where Mendez resided, categorized him as too young to vote in elections, purchase cigarettes, consent to a sexual act, or possess alcohol,¹ Oregon's Measure 11 law required, without any legal process, that he be treated as an adult in the criminal justice system, subject to the mandatory minimum sentencing guidelines for sex criminals. Unlike other juveniles charged with crimes in Oregon, Mendez had no hearing to determine whether he should be tried as an adult.

The legal consequences of Mendez's delinquency were so drastic that he had a right to a hearing to determine whether he should have been tried as an adult. As the Supreme Court has noted, "[T]here is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing." Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

III.

On the afternoon of July 20, 1995, Aynna Glover and Jenny Franklin, ages eleven and twelve, respectively, stopped at Mendez's home on their way to a swimming pool. They had met Mendez approximately one week earlier and evidently were at the residence to meet some other friends before going to the pool.

Shortly after arriving at the Mendez residence, Franklin went with Mendez's brother into another room, leaving Glover and Mendez alone together in the living room. They began playfully wrestling and pinching each other, which eventually lead to kissing.

There is some dispute as to what happened next. Glover contends that Mendez held her down and forcibly inserted his finger into her vagina. Mendez admits to digitally penetrating Glover, but contends that the act was consensual² and that he asked Glover first. Franklin told the investigating detective that she had peeked in on Glover and Mendez and that "they were both on the couch lying down making out." She also said she did not hear Glover call for help. Neither did Glover seem upset when she told Franklin about the incident after leaving the house. Glover's father later told an investigating detective that he did not notice any emotional or psychological damage to his daughter. Mendez claimed he did not know Glover was only eleven.³

Over one month later, Glover reported the incident to the police after she learned that her parents had found out about it. Mendez was apprehended and charged with first degree unlawful sexual penetration, first degree sexual abuse, and first degree attempted rape.⁴

Pursuant to Oregon's Measure 11 law, sixteen year-old Mendez was automatically processed in the adult criminal justice system without any hearing regarding the suitability of that forum. He pleaded guilty to one count of sexual abuse⁵ in exchange for the dismissal of the first and third charges.

Using the findings of the staff psychologist who evaluated Mendez, a county pre-sentence investigation unit and diagnostic center "unanimously agreed [that] if this were not a Ballot Measure 11 case, [it] would in fact recommend a probationary sentence" with out-patient treatment in the community. However, because it was a Measure 11 case, the judge sentenced Mendez to the mandatory minimum under Measure 11 for first degree sexual abuse, 75 months imprisonment, as well as 120 months of post-prison supervision. Mendez served three years in a juvenile detention facility and three years in a state prison for adults. He was released on May 22, 2002, a few weeks before his twenty-third birthday.

Seven months after Mendez's release, the Immigration and Naturalization Service (now Immigration and Customs Enforcement) took Mendez, a legal permanent resident of the United States, into custody and sought to have him removed to Mexico based on his sexual abuse conviction. Mendez had no other criminal record.

After a removal hearing before an immigration judge, Mendez was ordered out of the country. He moved with his wife to Baja California, where they currently reside.

IV.

In 19...