The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER FOLLOWING REMAND RE: ASSESSMENT OF PREJUDICE AND CONFIRMING DENIAL OF PREVIOUS ORDER DENYING DEFENDANT'S MOTION TO DISMISS
The Ninth Circuit remanded this case with instructions to consider whether Antonio Melendez-Castro was prejudiced by the faulty advice he received from an Immigration Judge (IJ) about the possibility of seeking voluntary departure during his November 25, 1997 deportation hearing. United States v. Melendez-Castro, 671 F.3d 950, 955 (9th Cir. 2012). The parties submitted briefing on the prejudice issue, and this court heard oral argument on the issue on April 16, 2012. After considering the pleadings and the arguments of counsel, and reviewing circuit precedent on the issue of prejudice, this court concludes that the defendant was not prejudiced by the IJ's advice, and that the defendant's 1997 deportation order should not be set aside. The court therefore confirms its previous order denying the defendant's motion to dismiss the indictment.
The Court of Appeals further directed this court to set forth on the record the reasons for its conclusion, one way or another. Id. Accordingly, a full explanation and rationale for the court's conclusion follows.
A. Standard for Assessing Prejudice
As a preliminary matter, the parties disagree on how to apply the standard for assessing whether the defendant was prejudiced by the IJ's failure to meaningfully advise him of the right to seek voluntary departure. Both parties recognize that United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) identifies the correct legal standard, but they disagree on whether the standard should be applied subjectively or objectively.
Ubaldo-Figueroa holds that to succeed in collateral attacking a deportation order, a defendant must show he was prejudiced by a flaw in the deportation process. The standard isn't particularly stringent. The defendant doesn't have to prove, for example, that he had a winning argument against being deported (rather than being voluntarily returned) to his country. Instead, he only has to show that he had plausible grounds for relief from deportation, Ubaldo-Figueroa, 364 F.3d 1050, which means that the facts presented would cause the the decision maker to exercise discretion in his favor. United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998). In determining whether an alien is eligible for voluntary return, immigration judges should consider both favorable and unfavorable factors and balance them. Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir. 1993). Factors such as family ties, length of residence in the U.S., hardship on the alien's family, and evidence of service to the community are considered favorable. Unfavorable factors include the existence, seriousness and recency of any criminal record, possibly the grounds for deportation, and other information indicating the alien's bad character. Id.
The government takes the position that this standard should be applied subjectively and peculiarly, with a focus exclusively on the defendant's actual immigration hearing. Here, for example, the government maintains the prejudice issue must be resolved by ascertaining whether the particular IJ who presided at Melendez-Castro's deportation hearing would have granted him voluntary departure had the defendant been given a meaningful opportunity to explain his equities. The defendant disagrees with the government's slant on how prejudice should be assessed. According to the defendant, the prejudice assessment - more specifically, whether plausible grounds for relief should have been recognized - must be determined objectively and without regard to the proclivities of the particular IJ who presided at the deportation hearing.
The court embraces the defendant's position. Because a defendant does not have to show that "he actually would have been granted relief," Ubaldo-Figueroa, 364 F.3d 1050, it only makes sense to evaluate whether there are plausible grounds for relief from deportation from an objective standpoint. In other words, the question to be asked is: What conclusion would a reasonable Immigration Judge reach after evaluating the favorable and unfavorable circumstances? Requiring the defendant to demonstrate that the result of his own deportation hearing before a particular IJ would have been different would often be tantamount to proving that he actually would have been granted relief, a requirement rejected by Ubaldo-Figueroa. Moreover, applying the subjective standard the government advocates would have the effect of insulating erroneous IJ decisions from review, whether the error stemmed from faulty advice given by the IJ or from a refusal to exercise discretion, or some other reason.
Melendez-Castro's 1997 deportation hearing is a case in point. The record establishes that the particular IJ who presided at the hearing was dead set against granting voluntary departure to anyone who had been convicted of a crime in the United States ("I don't grant voluntary departure to anyone convicted of a crime in the United States . . . ."). Had Melendez-Castro not been discouraged from presenting an argument against being deported, there is no doubt that the IJ would have ordered him deported anyway because of his criminal record. The Court of Appeals was aware of the IJ's scorched earth policy because it quoted his statements in its opinion. Melendez-Castro, 671 F.3d at 953. Nonetheless, the panel remanded the case for this court to make an independent assessment of prejudice. Obviously, remand wouldn't have been necessary if the issue was as simple as determining what this particular IJ would have done because that determination was already evident from his statements. The remand presupposes that this court should objectively assess what a reasonable IJ would have done under the same circumstances.
Melendez-Castro's first argument is that prejudice should be presumed because the IJ refused to exercise discretion. It's debatable whether that's what happened here. The IJ expressly acknowledged that he had discretion to grant or deny voluntary return to illegal aliens who were convicted of unaggravated crimes while they were in the U.S. Melendez-Castro, 671 F.3d at 950 ("Voluntary departure is available to anyone who has not been convicted of an aggravated felony. I can deny this in my discretion . . . ."). Taking the IJ at his word, although he knew he had discretion to grant voluntary departure, he had apparently decided he would always exercise his discretion in a manner that denied relief to criminals. The Court of Appeals did not hold that the IJ refused to exercise his discretion. Rather, it held that by announcing that he would invariably deny relief, the IJ discouraged Melendez-Castro and other aliens from applying for voluntary return. Id. at 954. So the contention that the IJ refused to exercise discretion is not supported by the record.
Even if the IJ had refused to exercise discretion, the law is clear that prejudice is not to be presumed merely because of a deprivation of some right during a deportation hearing. United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc) (a deprivation of the right to judicial review of a deportation order is of no consequence without a showing of prejudice); United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986) (prejudice from a constitutional failure is required before a deportation will be deemed unlawful). Contrary to Melendez-Castro's ...