United States v. Reyes-Romero

• Citation: 959 F.3d 80
• Decision Date: 19 May 2020
• Docket Number: No. 19-1923,19-1923
• Parties: UNITED STATES of America, Appellant v. Mario Nelson REYES-ROMERO
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

959 F.3d 80

UNITED STATES of America, Appellant

v.Mario Nelson REYES-ROMERO

No. 19-1923

United States Court of Appeals, Third Circuit.

Argued March 3, 2020

Filed: May 19, 2020

Donovan J. Cocas [Argued], Laura S. Irwin, Office of the United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellant United States of America

Adrian N. Roe [Argued], 428 Boulevard of the Allies, First Floor, Pittsburgh, PA 15219, Counsel for Appellee Mario Nelson Reyes-Romero

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

Under the Hyde Amendment, a prevailing defendant in a federal criminal prosecution can apply to have his attorney’s fees and costs covered by the government. Such an award is appropriate only if the defendant shows that "the position of the United States" in the prosecution "was vexatious, frivolous, or in bad faith." Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (codified at 18 U.S.C. § 3006A app.). That standard is demanding, and it requires far-reaching prosecutorial misconduct affecting the criminal case "as an inclusive whole." United States v. Manzo , 712 F.3d 805, 810 (3d Cir. 2013). Short of that standard, the Hyde Amendment is not an appropriate vehicle to criticize the conduct of law enforcement officers or second-guess the management of a criminal prosecution.

The District Court here awarded attorney’s fees and costs under the Hyde Amendment to Mario Nelson Reyes-Romero, who was prosecuted for unlawful reentry in violation of 8 U.S.C. § 1326, on the grounds that the prosecution was frivolous and in bad faith. Although assuredly born of good intentions and understandable frustration with faulty processes in the underlying removal proceeding here, that award was not based on the type of pervasive prosecutorial misconduct with which the Amendment is concerned. Accordingly, we will reverse.

I. BACKGROUND

The relevant background can be divided into three stages. First, Reyes-Romero, a noncitizen,¹ was subject to an administrative removal proceeding and removed from the country. Second, he returned to the United States and was prosecuted for unlawful reentry, a charge that he collaterally attacked under 8 U.S.C. § 1326(d) and that the District Court ultimately dismissed. Third, he sought and was awarded attorney’s fees and costs under the Hyde Amendment. Because a complete understanding of this history is crucial for analyzing the question presented, we discuss each stage in some detail.

A. 2011 Administrative Removal Proceeding

Reyes-Romero, an El Salvadoran national, entered the United States unlawfully in 2004. In 2008, the Department of Homeland Security (DHS) initiated removal proceedings on the ground that he was "present in the United States without [having] be[en] admitted or paroled," 8 U.S.C. § 1182(a)(6)(A)(i). A year later, after Reyes-Romero pleaded guilty to aggravated assault in New Jersey state court,² DHS aborted the § 1182 proceeding and placed him in expedited administrative removal on the ground that his conviction constituted an "aggravated felony," 8 U.S.C. § 1228(b)(1), namely a "crime of violence," id. § 1101(a)(43)(F) (incorporating 18 U.S.C. § 16 ’s definition).

In 2011, DHS officers Trushant Darji and Jose Alicea conducted Reyes-Romero’s administrative removal proceeding. The officers first served him with a Form I-826, which sets out a "Notice of Rights and Request for Disposition." App. 180. It is unclear why they did so, as the I-826 does not apply to noncitizens in expedited removal because of an aggravated felony conviction. For instance, the I-826 instructed Reyes-Romero he "ha[d] the right to a hearing before the Immigration Court," id. , even though administrative removal is conducted by immigration officers outside of the Immigration Court, see 8 U.S.C. § 1228(a)(3), (b)(1). Adding to the confusion, two boxes on the I-826 corresponding with contradictory declarations were checked, indicating Reyes-Romero had both "request[ed] a hearing before the Immigration Court" to determine his right to remain in the country and had "give[n] up [his] right to a hearing" so he could be returned to El Salvador. App. 180.

The officers then presented Reyes-Romero with the applicable form—a Form I-851, the "Notice of Intent to Issue a Final Administrative Removal Order" that governs noncitizens who are charged with having committed an aggravated felony. App. 96–97. The I-851 informed Reyes-Romero of the grounds for expedited removal, his ability to contest those grounds, and the option to raise any "fear [of] persecution" related to his return to El Salvador. Id. That form indicated Reyes-Romero conceded removability, "acknowledge[d] that [he was] not eligible for any form of relief from removal," and waived judicial review. App. 97. But close examination of the I-851 reveals it to be irregular. Reyes-Romero apparently executed the waiver of his rights at 9:00 AM—twenty minutes before the time stamp next to a certification that the form had been translated into Spanish for his benefit and forty minutes before the time stamp accompanying the relevant DHS supervisor’s issuing signature.

Reyes-Romero received a final administrative removal order that afternoon and was later removed to El Salvador.

B. Unlawful Reentry Prosecution

Reyes-Romero returned to the United States without inspection and, after he was found and detained, a federal grand jury returned an indictment charging him with unlawful reentry in violation of 8 U.S.C. § 1326. He did not contest any of the elements of that offense—that he had been "removed" and was later "found in" the country without express consent, 8 U.S.C. § 1326(a).

Instead, Reyes-Romero moved to dismiss the indictment under a statutory provision allowing him to "challenge the validity of the [removal] order" on which the prosecution was based, 8 U.S.C. § 1326(d). Under § 1326(d), a defendant bears the burden of showing that (1) he "exhausted any administrative remedies that may have been available to seek relief against the [removal] order"; (2) the removal proceedings "improperly deprived [him] of the opportunity for judicial review"; and (3) the "entry of the [removal] order was fundamentally unfair." Richardson v. United States , 558 F.3d 216, 223 (3d Cir. 2009) (quoting 8 U.S.C. § 1326(d)(1)–(3) ). "Fundamentally unfair" means "both [ (a) ] that some fundamental error occurred and [ (b) ] that as a result of that fundamental error [the defendant] suffered prejudice." United States v. Charleswell , 456 F.3d 347, 358 (3d Cir. 2006).

Reyes-Romero’s motion advanced two arguments. First, the 2011 administrative removal proceeding, with its contradictory forms and the "inconsisten[t]" selections on the I-826, "had an impermissible tendency to mislead" him and invalidated any waiver of his rights. App. 71. Second, the proceeding was "fundamentally unfair" because he had not committed an aggravated felony and therefore was entitled to a full hearing before an immigration judge (IJ).³ App. 72.

The Government resisted on both fronts. In its view, Reyes-Romero’s I-851 waiver was valid and overcame any inconsistency on the I-826, and as a result he had failed to exhaust administrative remedies or seek judicial review as required by § 1326(d)(1) and (2). And in any event he failed to show prejudice as required by § 1326(d)(3) because he had not demonstrated "a reasonable likelihood that the result"—i.e., the removal order—"would have been different" but for the errors he identified. App. 225 (quoting Charleswell , 456 F.3d at 362 ).

The District Court held a hearing on the § 1326(d) motion. It first addressed the I-851 waiver and its effect on § 1326(d) ’s exhaustion and judicial-review requirements. The Court expressed concerns not only with the "inconsistent" nature of the I-826 and I-851 forms but also with the I-851’s time stamps suggesting Reyes-Romero had been informed of his rights after signing the waiver—an argument Reyes-Romero had not developed in his brief. The Court told Adam Hallowell, the Assistant United States Attorney (AUSA) prosecuting the case, that the Government was "in a deep hole" because the immigration forms were "facially at odds with themselves." App. 283.

The Government called Officers Darji and Alicea as witnesses. Each had no memory of Reyes-Romero or his proceeding and had handled a substantial number of immigration cases in the years since 2011, so they testified only to general practices. Darji explained that he often worked with native Spanish speakers like Alicea to serve immigration forms on noncitizens in DHS custody. Noncitizens charged with having committed aggravated felonies would first receive the "more general" I-826 form before receiving the I-851 form "specific to administrative removal." App. 294. The noncitizen would typically "hold the pen" and make necessary selections. App. 291. If the noncitizen made contradictory or nonsensical selections, the officers would confirm his intent but otherwise leave those selections untouched.

The District Court, interposing its own questions at the hearing, pressed Officer Darji about Reyes-Romero’s forms:

THE COURT: ... [A]m I reading the[se forms] accurately that within moments of 9 o’clock in the morning on June 23rd, 2011, several things had occurred pretty much all at once. This defendant was told he had a right to request a hearing. He requested a hearing. He said he didn’t want a hearing. And he was told he couldn’t have a hearing. Am I reading those forms correctly, sir?

THE WITNESS: Yes.

THE COURT: Does that make any sense at all to you, sir?

THE WITNESS: No, Your Honor.

App. 331. The District Court took Officer Darji’s response to mean that "the process that was used" in Reyes-Romero’s removal proceeding did not "ma[k]e ... sense." App. 476.

Based on that concession and the defects in Reyes-Romero’s forms, the District Court made clear it was "highly likely ... [to] conclude that there was no...