Thursday, October 7, 2010
From guest blogger, Professor Evelyn Cruz of Arizona State University:
U.S. v. Ramos
Ninth Circuit No 09-50059
September 24, 2010
Immigration Judges (IJ) must make certain that a noncitizen’s plea to a stipulated removal order is voluntary, knowing, and intelligent. (8 CFR §1003.25) The court found that the Service’s procedures failed to adequately protect the due process rights of unrepresented noncitizens. Also, the explanatory language contained in the Service’s “Stipulated Request for Removal Order and Waiver of Hearing form” (stipulated removal form) is not per say sufficient to establish that an unrepresented noncitizen’s acquiescence to a stipulated removal order is in fact voluntarily, knowingly and intelligently. Therefore, the IJ cannot solely rely on the form and the Service to determine the validity of the stipulated removal agreement. However, the noncitizen in this case was not able to demonstrate prejudice resulting from the regulatory and due process violations. Therefore, the noncitizen’s motion to dismiss the re-entry charge was denied.
8 USC §1229a(d) permits an Immigration Judge (IJ) to accept a Stipulated Removal from noncitizens choosing not to fight their removal proceedings. The procedure was created to facilitate the management of cases at detention facilities. When first introduced, the IJ could only accept such stipulations from individuals who were represented and “voluntarily, knowingly and intelligently entered into the stipulation. (8 CFR 3.25 (1995)) In 1997, however, the language was amended to allow the IJ to accept stipulations from unrepresented noncitizens but retained the requirement that the IJ determine that the waiver was voluntary, knowing and intelligent. The new regulation also spelled out some of the specific language the stipulation must contain.
The regulation has been used extensively at Arizona’s Eloy Immigration Detention Facility. According to the court record, officers at the Eloy facility review the files of incoming detainees upon their arrival. If the individual is a native of Mexico, entered unlawfully, and has resided in the U.S. less than 10 yrs, he is selected for participation in the stipulated removal program. About 1000 stipulated removal orders are processed at Eloy each month. The officers do not review the person’s potential eligibility for relief. Instead, they rely on a group presentation by an enforcement agent who explains in Spanish that the detainees have two choices: to return to Mexico that very day or to wait two or three weeks to see an IJ. The officer then reads the content of a stipulated removal form to the detainee. The form is written in English with a Spanish translation at the bottom. The form states that the person understands the consequences of the stipulated removal agreement, the waiver of appeal rights, right to an attorney and to seek relief. After the presentation the officer meets with each detainee to see if the person wants to sign the form. There is no discussion of potential relief. Also, there is no translator or attorney present, even where the officer’s Spanish ability is limited, as it was the case with the officer questioning Mr. Ramos.
Factually, Mr. Ramos first entered the United States without inspection twenty years prior to the initiation of removal proceedings. He is married to a legal permanent resident and has two U.S. citizen children, and one U.S. citizen stepchild. Mr. Ramos speaks limited English. He was placed in removal proceedings following a laundry list of convictions for numerous crimes. He was served with the Notice to Appear (NTA) on May 9th, 2006 and transported to the Eloy Detention Center that same day. On May 11, 2006 he was presented with a stipulated removal order form despite the fact that he did not meet the Eloy facility’s criteria since he had resided in the United States for twenty years. The detention officer was deemed by the lower court to have questionable Spanish speaking skills. Mr. Ramos signed the form, and based solely on the form, the IJ entered a removal order that same day. Mr. Ramos was back in Mexico by the end of the day. On November 2007, Mr. Ramos was arrested near the Mexican border and charged with 8 US.C. §1326 re-entry following removal.
The Ninth Circuit concluded that Mr. Ramos’s waiver of his right to appeal and right to counsel were defective and therefore the stipulated order was invalid. In a prior case, Galicia-Gonzalez 997 F.3d 602 (9th Cir. 2004), the Ninth Circuit held valid a stipulated removal order because the respondent in the case had received legal representation. The court found Galicia-Gonzalez not to be controlling in the present case because Mr. Ramos was not represented by counsel. The court reasoned that to preserve the due process rights of unrepresented detainees, the IJ needed to personally advice and inform the person of potential relief and the finality of a removal order, instead of relying on written warnings on a form presented by an immigration officer. The court further noted that Mr. Ramos also did not have proper translation, which is fundamental to a full and fair hearing, further confirming that he did not receive a competent explanation of his rights.
Unfortunately for Mr. Ramos, the court did not find that he had shown prejudice resulting from the statutory and due process violations. Therefore his motion to dismiss the charges under 8 USC 1326 was denied.
The Eloy detention facility believes that this Ninth Circuit decision is ill-advised because it will delay the removal of individuals from the United States and lead to overcrowding. They believe that instead of being able to remove Mexican nationals swiftly, it will now take several weeks, if not months. In response, immigrant advocates argue that if the Service is truly concerned about detaining individuals unnecessarily and overcrowding, it has the ability to grant bond. The release of nonviolent individuals pending their removal hearing would eliminate the detainee’s forced choice between defending his/her due process rights and physical freedom.
It is true that the additional delay will be detrimental to some individuals who truly lack relief and should be spared unnecessary detention. However, many detainees are presented with the form before they have had a chance to compose themselves, and hence often make rushed decisions. These individuals suffer irreparable harm. Some removed noncitizens have later said that they signed the stipulated orders of removal thinking that they are signing voluntary departure orders, or not realizing that they were losing an available means to gain lawful immigration status. The U.S v. Ramos case will help unrepresented noncitizens to better evaluate their options in the removal process and avoid these consequences.