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United States v. Ramos

September 24, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ISAAC RAMOS, DEFENDANT-APPELLANT.



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.

The opinion of the court was delivered by: Wardlaw, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted December 8, 2009 - Pasadena, California

Before: Stephen Reinhardt, Stephen S. Trott and Kim McLane Wardlaw, Circuit Judges.

OPINION

Isaac Ramos appeals the district court's denial of his motion to dismiss the indictment for unlawful re-entry 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.*fn1

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."*fn2

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.

[1] In 1997, the DOJ amended the language of the regulation to its current form, which governs Ramos's removal proceedings.*fn3 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 inadmissability 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 ...


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