Padilla-Martinez v. Holder
| Decision Date | 27 October 2014 |
| Docket Number | No. 11–72570.,11–72570. |
| Citation | 770 F.3d 825 |
| Parties | Jesus PADILLA–MARTINEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Kara Hartzler (argued), Florence Immigrant and Refugee Rights Project, Florence, AZ, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Richard M. Evans, Assistant Director, Nancy E. Friedman, Senior Litigation Counsel, Christina Bechak Parascandola (argued), Trial Attorney, United States Department of Justice, Washington, D.C., for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A090–213–873.
Before: RONALD M. GOULD and MILAN D. SMITH, JR., Circuit Judges, and KEVIN T. DUFFY, District Judge.*
Jesus Padilla–Martinez seeks review of a series of decisions by the Board of Immigration Appeals (“BIA”) culminating in the BIA's conclusion that his prior state-law drug offense qualified as an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), making him a deportable alien. Padilla–Martinez contends that his due-process rights were violated by the immigration proceedings that followed his incarceration for a conviction under California Health and Safety Code § 11378 (). We must decide whether Padilla–Martinez's due-process rights were violated by BIA decisions that (1) allowed the Government multiple opportunities to prove Padilla–Martinez's eligibility for deportation under the modified categorical approach and (2) admitted into evidence an uncertified transcript of the state-court felony change-of-plea proceedings.
Padilla–Martinez is a native and citizen of Mexico. He first entered the United States without inspection, but later became a lawful permanent resident by adjusting his status. In March 2008, Padilla–Martinez was indicted for possession for sale of a controlled substance, methamphetamine, in violation of California Health and Safety Code § 11378. He pleaded pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (Cal.1970) (en banc), which held that a guilty plea to an offense does not necessarily mean that the defendant admits to the facts charged in the indictment. He was convicted by the State of California and served ninety days in prison.
After his release, the Government initiated deportation proceedings against Padilla–Martinez, viewing him as deportable for the aggravated felony of illicit trafficking in a controlled substance, including a drug trafficking crime, under 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Padilla–Martinez opposed his removal and moved to terminate proceedings contending that the plea documents submitted by the Government did not establish a conviction involving a controlled substance as defined by federal law. The Government opposed the motion. Concluding that the plea documents identified the drug sold as methamphetamine, the Immigration Judge (“IJ”) ruled in the Government's favor.
On the first appeal from the IJ, the BIA reversed after finding that no admissible documents identified the drug involved in the state conviction. The plea did not recite a factual basis, Padilla–Martinez did not plead to the offense “as charged” in the information, and no plea transcript was submitted. But the BIA remanded for “further proceedings consistent with the foregoing opinion and entry of a new decision.”
On remand, Padilla–Martinez again moved to terminate the proceedings. In opposition, the Government submitted a facsimile copy of the transcript of the state-court felony change-of-plea proceedings, in which Padilla–Martinez orally pleaded guilty to the charge of selling methamphetamine. But the facsimile copy of the transcript was not official and, at the next scheduled hearing, the Government requested and received a continuance to gain a certified copy. When the continuance deadline approached, the Governmentsaid that it still did not have an official, certified copy of the transcript. The IJ then declined to consider the facsimile copy and issued a written decision granting Padilla–Martinez's motion to terminate on July 7, 2010. The Government filed a motion to reopen and reconsider and attached a declaration from Immigration and Customs Enforcement Agent Mick Hill, which certified that the facsimile copy of the transcript was a true and accurate copy of the facsimile that he had received from the custodian of the record. On August 5, 2010, the IJ denied the motion to reopen because the Government had not shown why the declaration was previously unavailable.
The Government appealed, asking the BIA to once again consider Padilla–Martinez's case—this time on the issue of whether the facsimile copy of the transcript, without the Hill declaration, should have been admitted by the IJ. The BIA found the facsimile copy of the transcript admissible and again remanded the case.
Following the BIA directive, the IJ considered the facsimile copy of the transcript. Because that document established a guilty plea to selling methamphetamine, she ordered removal.
Padilla–Martinez again appealed the IJ decision to the BIA, but the BIA stood by its prior decision holding the facsimile copy of the transcript admissible. The BIA ordered that Padilla–Martinez be deported. Padilla–Martinez filed a timely petition for review in this court.
As a general rule, we have no jurisdiction to review a “final order of removal against an alien who is removable by reason of having committed a criminal offense,” including a conviction relating to a controlled substance. 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(B). But there are exceptions and, as pertinent here, we may review “constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our jurisdiction, however, is still limited to final orders of removal or deportation. 8 U.S.C. § 1252(a)(1); see Alcala v. Holder, 563 F.3d 1009, 1016 (9th Cir.2009) (); see also Junming Li v. Holder, 656 F.3d 898, 901 (9th Cir.2011) (). We must determine whether we have jurisdiction to review the interim BIA decisions remanding issues back to the IJ.
“Order of deportation” is defined as the IJ's formal determination that an alien is deportable. See8 U.S.C. § 1101(a)(47)(A); see also Noriega–Lopez v. Ashcroft, 335 F.3d 874, 882 (9th Cir.2003). Such an order becomes final when the BIA affirms the order or when the time for appealing it expires. 8 U.S.C. § 1101(a)(47)(B); see NoriegaLopez, 335 F.3d at 882–83.
The Government argues that because remand decisions require additional consideration from the IJ in light of the BIA's interim analysis, the decisions do not constitute final orders of removal, depriving us of jurisdiction. 1 Although we agree with the Government that a BIA decision remanding a case back to the IJ may not be final when issued, see Junming Li, 656 F.3d at 902 (), precedent indicates that a decision matures to finality upon entry of a final order that is contingent upon it. See I.N.S. v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (). We hold that we have jurisdiction to review the prior BIA decisions in this case because the final deportation order is contingent upon them. 2
We review de novo the BIA's determination of legal questions, but we review the BIA's findings of fact for substantial evidence and uphold them unless the evidence compels a contrary result. Hernandez–Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir.2011) (citations omitted). We review de novo whether a non-citizen has been convicted of an aggravated drug-trafficking offense that renders him removable under the Immigration and Nationality Act (“INA”). Rendon v. Mukasey, 520 F.3d 967, 971 (9th Cir.2008). We review de novo due-process challenges to final orders of removal. Young Sun Shin v. Mukasey, 547 F.3d 1019, 1023 (9th Cir.2008) (citation omitted).
We next assess the merits of Padilla–Martinez's due-process claim. Aliens have a Fifth Amendment right to due process in deportation proceedings, which ensures that they receive a “full and fair hearing.” See Ren v. Holder, 648 F.3d 1079, 1092 (9th Cir.2011). An immigration decision violates due process if the proceeding was “so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Ramirez–Alejandre v. Ashcroft, 319 F.3d 365, 380 (9th Cir.2003) (en banc) (). To prevail on a due-process claim, a petitioner must demonstrate both a violation of rights and prejudice. See Cinapian v. Holder, 567 F.3d 1067, 1074–75 (9th Cir.2009); Campos–Sanchez v. I.N.S., 164 F.3d 448, 450 (9th Cir.1999), superseded by statute on other grounds as stated in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir.2008) (per curiam).
Padilla–Martinez asserts that his immigration proceedings were plagued by violations of his due-process rights, spanning all three BIA decisions. We examine the alleged errors chronologically by BIA decision to scrutinize whether there was fundamental unfairness in how these proceedings were conducted.
Padilla–Martinez contends that the BIA erred in its first decision by sua sponte
remanding his case back...
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