USA v. Ramos

• Citation: 623 F.3d 672
• Decision Date: 24 September 2010
• Docket Number: No. 09-50059.,09-50059.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isaac RAMOS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

623 F.3d 672

UNITED STATES of America, Plaintiff-Appellee,

v.Isaac RAMOS, Defendant-Appellant.

No. 09-50059.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 8, 2009.

Filed Sept. 24, 2010.

COPYRIGHT MATERIAL OMITTED.

Joan Kerry Bader, San Diego, CA, for the defendant-appellant.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, and Eric J. Beste, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District

Judge, Presiding. D.C. No. 3:07-cr-03402-IEG-1.

Before: STEPHEN REINHARDT, STEPHEN S. TROTT and KIM McLANE WARDLAW, Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

Isaac Ramos appeals the district court's denial of his motion to dismiss the indictment for unlawful reentry after a prior deportation in violation of 8 U.S.C. § 1326, which he collaterally attacked in his motion to dismiss. Ramos argues that the Department of Homeland Security (“DHS”) and the Immigration Judge (“IJ”) violated his due process rights and the applicable regulation when they removed him through the stipulated removal program. 8 U.S.C. § 1229a(d), 8 C.F.R. § 1003.25(b). He argues that the stipulated removal order entered by an IJ at the Eloy Detention Center in Eloy, Arizona, is invalid because he was not accorded his Fifth Amendment due process rights and the deportation officers and IJ failed to comply with the procedures set forth in 8 C.F.R. § 1003.25. Although we agree that the stipulated removal proceedings denied Ramos due process of law and violated the applicable regulation, we conclude that he suffered no prejudice as a result, and affirm. ¹

I. FACTUAL AND PROCEDURAL BACKGROUND

Ramos is a citizen and native of Mexico. He first entered the United States without inspection approximately twenty years ago. He is married to a legal permanent resident, and has two U.S. citizen children and one U.S. citizen stepchild. Ramos was apprehended after crossing the United States-Mexico border near Otay Mesa, California on November 21, 2007. A year and six months earlier, on May 11, 2006, Ramos had been ordered removed under the “stipulated removal” provision of 8 U.S.C. § 1229a(d).

A. Stipulated Removal Process

The stipulated removal provision allows an IJ to enter an “order of removal stipulated to by the alien (or the alien's representative) and the [Immigration and Naturalization] Service.” ² 8 U.S.C. § 1229a(d). An IJ's ability to enter stipulated removal orders “facilitates judicial efficiency in uncontested cases,” and serves to “alleviate overcrowded federal, state, and local detention facilities.” Stipulated Requests for Deportation or Exclusion Orders, 59 Fed.Reg. 24,976 (May 13, 1994).

The Department of Justice (“DOJ”) first promulgated a regulation implementing stipulated removal in 1995. 8 C.F.R. § 3.25. The regulation codified an IJ's discretion to enter a stipulated removal order without a hearing and in the absence of the alien, but, out of due process concerns, limited the availability of such orders only to aliens represented by counsel at the time the stipulation was entered. See Stipulated Requests for Deportation or Exclusion Orders, 60 Fed.Reg. 26,351-52 (May 17, 1995). The regulation provided further procedural safeguards for aliens stipulating to their removal by mandating that the IJ determine that the “represented respondent/applicant voluntarily, knowingly, and intelligently entered into a stipulated request for an order of deportation or exclusion.” 8 C.F.R. § 3.25 (1995); see also Stipulated Requests for Deportation or Exclusion Orders, 59 Fed.Reg. at 24,976. As the DOJ noted, “the words ‘voluntarily, knowingly and intelligently’ ... ensure maximum protection for aliens entering into stipulations,” and protect those who cannot “fully understand the ramifications of a stipulation” due to limited English language skills. 60 Fed.Reg. at 26,351-52.

In 1997, the DOJ amended the language of the regulation to its current form, which governs Ramos's removal proceedings. ³ See Inspection and Expedited Removal of Aliens, 62 Fed.Reg. 10,312, 10,321-22 (Mar. 6, 1997). Like the former version of the regulation, 8 C.F.R. § 1003.25 provides an IJ with discretion to “enter an order of deportation, exclusion or removal stipulated to by the alien (or the alien's representative) and the Service.” Id. The amended regulation, however, permits an IJ to enter stipulated orders of removal for aliens without legal representation, and requires that the stipulation include:

(1) An admission that all factual allegations contained in the charging document are true and correct as written;

(2) A concession of deportability or inadmissibility as charged;

(3) A statement that the alien makes no application for relief under the [Immigration and Nationality] Act;

(4) A designation of a country for deportation or removal under section 241(b)(2)(A)(i) of the Act;

(5) A concession to the introduction of the written stipulation of the alien as an exhibit to the Record of Proceeding;

(6) A statement that the alien understands the consequences of the stipulated request and that the alien enters the request voluntarily, knowingly, and intelligently;

(7) A statement that the alien will accept a written order for his or her deportation, exclusion or removal as a final disposition of the proceedings; and

(8) A waiver of appeal of the written order of deportation or removal.

8 C.F.R. § 1003.25(b).

The amended regulation provides additional procedural safeguards for unrepresented aliens in stipulated removal proceedings by requiring that the IJ “determine that the alien's waiver is voluntary, knowing, and intelligent.” Id. As the DOJ noted, this requirement

safeguards against an imprudent waiver of a formal adjudication on the part of an unrepresented alien.... If an immigration judge is confronted with a stipulated request raising due process concerns, he or she may examine that request in the context of a hearing.

Inspection and Expedited Removal of Aliens, 62 Fed.Reg. at 10,322.

B. Ramos's Stipulated Removal Proceedings

On May 9, 2006, DHS issued a warrant of arrest and a Notice to Appear (“NTA”) on Ramos in Bakersfield, California. The NTA charged Ramos with removability for commission of a crime involving moral turpitude in violation of 8 U.S.C. § 1182(a)(2)(A)(i)(I); commission of a controlled substance violation in violation of 8 U.S.C. § 1182(a)(2)(A)(i)(II); and presence in the United States without admission or parole in violation of 8 U.S.C. § 1182(a)(6)(A)(i). The NTA also charged that Ramos had a prior conviction for possession of methamphetamine, in violation of California Health and Safety Code § 11377(a); a conviction for inflicting corporal injury, in violation of California Penal Code § 273.5(a); and a conviction for false imprisonment in violation of California Penal Code § 236.

On the same day, DHS transferred Ramos from Bakersfield to the Eloy Detention Center (“Eloy”) in Eloy, Arizona. The Eloy Detention Center houses and serves as a transfer point for up to 1,500 alien detainees per day. At Eloy, DHS employs deportation officers who are responsible for assisting DHS's Office of Chief Counsel in obtaining evidence, conducting interviews with detainees, performing criminal history checks, and escorting detainees who have been ordered removed back to their country of origin.

On May 11, 2006, deportation officers presented Ramos with a form entitled “Stipulated Request for Removal Order and Waiver of Hearing” (“Stipulated Removal form” or “form”). The Stipulated Removal form distributed by officers at Eloy contains a series of statements and admissions, written first in English, and below that, translated into Spanish. The form sets forth several stipulations on the part of the alien, some of which are specified in 8 C.F.R. § 1003.25, and some of which are not required by regulation. For example, in Paragraph 4 the alien stipulates:

I have been advised of my right to be represented by an attorney of my choice, at my own expense, during these proceedings. I waive this right. I will represent myself in these proceedings.

Also not required by the regulation is the stipulation in Paragraph 5, that “I will be giving up the following legal rights that I would have in a hearing before an Immigration Judge: a) the right to question witnesses; b) the right to offer and to object to evidence; c) the right to require the government to prove my removability.”

In Paragraph 8, the alien waives any present eligibility for relief from deportation:

I knowingly and intelligently waive my right to apply for any relief or protection from removal for which I may be eligible under the Immigration and Nationality Act or any other provision of law. Such relief and protection may include voluntary departure, adjustment of status, suspension of deportation or cancellation of removal, registry, naturalization, political asylum, withholding of removal, and protection under the Convention Against Torture.

Under Paragraph 13, the alien waives “appeal of the written order of removal.”

By signing the form, the detained alien “admit[s] [to] all of the factual allegations contained in the NTA,” concedes deportability or inadmissibility as charged on the NTA, and provides that he or she will accept a written order for removal as a final disposition. The form also specifies that the entire document has been “read to me in a language that I understand” and that “I fully understand its consequences. I submit this request for removal voluntarily, knowingly, and intelligently.” See also 8 C.F.R. §§ 1003.25(b)(1), (2), (6), (7).

The district court held an evidentiary hearing on Ramos's motion to dismiss. Deportation Officer Christina Olson verified that she had met individually with Ramos on May 11, 2006 after he attended the group presentation and...