Another Ninth Circuit Judge Goes Off on Immigration Enforcement

By Andrew R. Arthur on June 23, 2017

In a June 2, 2017 post, I detailed the case of Magana Ortiz v. Sessions, in which Ninth Circuit Court of Appeals Judge Stephen Reinhardt described the removal of a Mexican national who had entered the United States in 1989 as "contrary to the values of this nation and its legal system." He continued:

Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

On Monday, June 12, 2017, it was the turn of Judge Reinhardt's colleague, Ninth Circuit Judge Harry Pregerson, to attack the government for enforcing the immigration laws.

In Arteaga-Godinez v. Sessions, a three-judge panel of the Ninth Circuit considered the appeals of a husband (Rodolfo Arteaga-Godinez) and wife (Brenda Torres-Ponce), natives of Mexico and lawful permanent residents. As the court explained it:

On July 6, 2006, Arteaga and Torres attempted to enter the United States with a third Mexican national, Maria Olicema–Hernandez ("Olicema"), who was not a lawful permanent resident but who presented Torres's mother's lawful permanent resident card to immigration agents. The agents determined that the card did not belong to Olicema and arrested her, Arteaga, and Torres. Arteaga and Torres were later charged with removability under [section 212(a)(6)(E)(i) of the Immigration and Nationality Act (INA)] for "knowingly ... assist[ing] ... [an]other alien to enter ... the United States in violation of law."

At the time he was arrested, Arteaga was questioned by immigration agents, telling them "that his wife had planned the July 6, 2006, smuggling attempt and had solicited his help." After she was arrested, Torres told immigration agents "that 'she made the arrangements to smuggle Olicema into the United States' and that 'she acquired her mother's resident alien card in order to provide it to Olicema to use it to enter the United States.'" The immigration agents who questioned Arteaga and Torres never advised them of their right to be represented, or that their statements could be used against them.

Before the immigration judge (IJ), Arteaga conceded removability and applied for cancellation of removal for permanent residents under section 240A(a) of the INA. The circuit court noted that "before the IJ, Arteaga testified that he had planned the smuggling attempt as a favor to Olicema's brother, who was a coworker of his," holding that "the IJ ... concluded that this inconsistency demonstrated that Arteaga was "willing to ... manipulate the truth in order to obtain a perceived advantage for his wife's case'" because his wife was not statutorily eligible for cancellation of removal. In addition, the IJ determined that "inconsistency undermined Arteaga's credibility with regard to certain claims otherwise favoring cancellation of removal — such as his son's alleged asthma and his mother's alleged limited mobility — which were supported only by Arteaga's own testimony."

While the IJ found that Arteaga was statutorily eligible for cancellation of removal, the IJ denied that application in the exercise of discretion. That decision was affirmed by the Board of Immigration Appeals (BIA), and Arteaga appealed that affirmance to the Ninth Circuit.

Separately, Arteaga had filed a motion to remand to the BIA, which was denied. In that motion, Arteaga requested that the BIA remand his case for reconsideration in light of intervening Ninth Circuit case law (discussed below); that motion was denied, and Arteaga appealed that decision as well.

Before a separate IJ, Torres contested removability and filed two separate motions to terminate. She was found removable, those motions were denied, and the IJ ordered her removed. The BIA affirmed that decision, and Torres took the appeal to the Ninth Circuit.

Arteaga and Torres argued before the circuit court that their statements were inadmissible in their removal proceedings because they were taken in violation of 8 C.F.R. § 287.3(c), which states, in pertinent part:

Except in the case of an alien subject to the expedited removal provisions of section 235(b)(1)(A) of the Act, an alien arrested without warrant and placed in formal proceedings under section 238 or 240 of the Act will be advised of the reasons for his or her arrest and the right to be represented at no expense to the Government. . . . The officer will also advise the alien that any statement made may be used against him or her in a subsequent proceeding.

In Rodriguez-Echavarria v. Mukasey, 534 F. 3d 1047 (9th Cir, 2008), decided after the immigration proceedings in Arteaga's case concluded, the Ninth Circuit held that an alien is arrested for purposes of 8 C.F.R. § 287.3 when the alien's "freedom ... to walk away" is "restrain[ed]."

Subsequent to Rodriguez-Echavarria, however, the Ninth Circuit held in Samayoa-Martinez v. Holder, 558 F.3d 897 (9th Cir 2009) that "[f]ormal removal proceedings [for purposes of 8 C.F.R. § 287.3] do not commence until the INS has filed a Notice to Appear (NTA) in the immigration court." Noting this, the circuit court in Arteaga held that "the agents' obligation to notify Arteaga [and Torres, whose NTAs were not issued until after they were questioned] of [their] rights under section 287.3(c) had not yet attached."

The circuit court held that it lacked jurisdiction by statute to review the BIA's affirmance of the IJ's denial of Arteaga's application for cancellation of removal, because Congress has stripped it of authority to review such judgments in section 242(a)(2)(B)(i) of the INA, and limited the court's review to "constitutional claims or questions of law" under section 242(a)(2)(D) of the INA.

It further held that the BIA did not, as Arteaga had argued, "commit legal error in affirming the IJ's denial of Arteaga's application" because (1) "the IJ's adverse determination as to Arteaga's credibility was not based on 'trivial inconsistencies that under the total circumstances have no bearing on [Arteaga's] veracity,'" and (2) the IJ "provide[d] a specific and cogent reason for rejecting Arteaga's explanation for the inconsistencies between his testimony and his prior statements to immigration agents."

The Ninth Circuit also rejected Torres's claim "that substantial evidence did not support the IJ's determination that she 'knowingly' participated in the July 6, 2006, smuggling attempt." It held that, in fact, such "evidence included Torres's statements to immigration agents in which she stated that 'she made the arrangements to smuggle Olicema into the United States' and that 'she acquired her mother's resident alien card in order to provide it to Olicema to use it to enter the United States.'"

Lastly, Torres claimed "she was denied due process when the government failed to make "reasonable efforts" to make the immigration agents who interviewed her available for cross-examination in her removal proceedings." The circuit court held:

Torres was not denied "a reasonable opportunity to confront the witnesses against ... her."

The government stated on the record before the IJ that it was willing to "get all of the officers ... that were involved in the incident to testify" in her removal proceedings. But Torres never actually called any of those officers to testify. Thus, Torres was afforded "a reasonable opportunity" to cross-examine the officers ... and her failure to take advantage of that opportunity did not amount to a violation of her statutory or due-process rights.

The court accordingly denied Arteaga's and Torres' petitions for review, dismissing Arteaga's petition for review of the BIA's affirmance of "the IJ's denial of his application for cancellation of removal."

Judge Pregerson dissented from that decision, stating that he "wish[ed] to make two points concerning the unfairness of our immigration laws in the case."

First, he complained about the Ninth Circuit's "cramped interpretation of 8 C.F.R. § 287.3(c)", asserting:

[W]hat is the use of warning a person that "any statement made may be used against him or her" when the government has already conducted its interrogation, filed a Notice to Appear, and often has no need to obtain any further incriminating statements? How can courts defend a practice that purports to offer noncitizens an important procedural right, yet only does so when that right has little, if any, value?

It would appear, however, that this complaint is misdirected. The sequencing of the advisals is clear from the regulation: only "an alien arrested without warrant and placed in formal proceedings under section 238 or 240 of the Act will be advised of the right to be represented at no expense to the Government. ... The officer will also advise the alien that any statement made may be used against him or her in a subsequent proceeding."

As the Ninth Circuit noted in Samayoa-Martinez, 8 C.F.R. § 1239.1(a) states: "Every removal proceeding conducted under section 240 of the [INA] to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the immigration court." (Emphasis added.) The Ninth Circuit is faithfully reading the applicable regulations: An alien is not "placed in formal proceedings" until the NTA is issued. If there is blame, it should go to the attorney general who promulgated the regulation, not the court that read it accurately.

Second, he complained about the government's enforcement of the immigration laws:

[T]his case is another example of the cruelty with which our immigration laws tear families apart. Rodolfo came to the United States in 1990 at age 9 and became a lawful permanent resident in 1994. Brenda came to the United States in 1990 at age 7 and became a lawful permanent resident in 2004. Rodolfo and Brenda were legally married in September 2001. At the time of their removal proceedings, the couple had a United States citizen child, and Brenda was pregnant. Rodolfo has consistently worked in construction and aspires to attend college to become a welder. Brenda has worked at a medical office and volunteers at her son's school.

Rodolfo and Brenda maintain a close and strong bond with their family in the United States. Rodolfo's mother, three of his brothers, and one sister are all permanent legal residents of the United States, and he has another sister who is a United States citizen. Brenda's parents are both lawful permanent residents and her brother is a United States citizen. If Rodolfo and Brenda are removed, their children will either grow up in the United States without their parents or be compelled by circumstances beyond their control to move to a country they do not know. I decline to be a party to such an unkind and cruel result.

There is nothing wrong with a reviewing judge questioning the manner in which a judge at the hearing level has exercised discretion, and in this instance, Judge Pregerson did not reference the IJs' specific decisions in his statements. The IJ's refusal to exercise discretion in Arteaga's case, however, is at least one of the "unkind and cruel result[s]" that Judge Pregerson decries: there is no reasonable argument that assisting an alien to enter the United States illegally should not be a ground of removal, that lying to a court or government agent should not have ramifications, or that the agents who arrested Arteaga and Torres for their offenses should not have done so. If there are bad actors by Judge Pregerson's analysis, they are the IJs who issued the decisions.

Nor did Judge Pregerson identify any legal error in either Arteaga's or Torres' cases. He just didn't like the way that the cases turned out, without ascribing any blame whatsoever to the two individuals responsible: Arteaga and Torres.

The bigger issue is, however, the extreme tone that Judge Pregerson takes in his dissent. "Cruelty" is a strong concept, weighted with moral judgments, and in using variations of this word, he reveals his distaste for the entire immigration scheme. In this individual case, his feelings are harmless, because he is in the dissent in a two-to-one decision. How will a government lawyer expect to be treated in the next immigration-enforcement case, though? And, more importantly, how will Judge Pregerson's next decision in an immigration case in which he is in the majority in a two-to-one case be viewed? As a fair, dispassionate just decision, or as an opinion tainted by the judge's feelings toward the law?

We rely on judges to be neutral arbiters in our society to ensure that our system of laws are applied fairly. Sharply worded statements have their place, but not in judicial opinions.