By Lovepreet Dhinsa
SAN FRANCISCO – A case in the Court of Appeals for the Ninth Circuit here Friday involved a challenge to a U.S. decision that a notice to appear—served first when a minor was 11 years old—was in violation of rules designed to protect minors under the Convention Against Torture.
Brayan Rodriguez’s future was being determined Friday by a panel of three judges—Judge Carlos Bea, Judge Kim McLane Wardlaw, and Chief Judge Lee H. Rosenthal—of the Court of Appeals for the Ninth Circuit.
Defense attorney Kristen Jackson, joined by Haley Upshaw, opened, “Mr. Rodriguez’s case presents a unique window in the challenges facing young people in immigrant court…because this court has yet to recognize government appointed counsel for children; petitions like Mr. Rodriguez’s are relatively rare, but the problems that they portray are not.”
The Department of Homeland Security (DHS) failed to serve Rodriguez with his proper notice to appear, in which pro-bono counsel argued that Flores Chavez v. Ashcroft entitled him to a release, Jackson said.
Under Flores Chavez v. Ashcroft, the agency had not complied with the service requirement to properly serve, which meant that the agency was not able to exercise jurisdiction over Chavez’s claim.
The regulation at issue is the fact that when the DHS releases a child into the custody of an adult from federal custody, as Rodriguez was, the DHS must serve notice to the adult in custody, if the child is under 18 years.
Rodriguez entered removal proceedings when he was only 16 years old, and at that time, he appeared to be eligible for special immigrant re-juvenile status and asylum.
However, the DHS failed to comply with important regulations in providing notice to Rodriguez’s mother, and the resources he was eligible for “could have been used as a tool for Rodriguez to navigate through the proceeding and secure counsel.”
Counsel argued that “had the DHS properly served Rodriguez, he may very well have been a lawful permanent resident or even as US citizen today, rather being served two separate removal orders during the course of these proceedings.”
Counsel Kristen Jackson argued for the court to remand Rodriguez’s case back to the agency, at a minimum, to consider the claim for termination due to the “egregious violation of an agency regulation” or conduct the proper legal inquiry to his motions to terminate.
Not only did DHS ignore this theory, “which rests upon principles of administrative law that requires it to follow its own regulations regarding service (rooted in the matter of Garcia Flores and underscored in Sanchez v. Sessions),” but the agency then “perfected” a proper notice to serve Rodriguez when he turned 18 years old.
Upon being improperly served at 11 years old, Rodriguez was served seven years later with his mother at age 18, in which “Mr. Rodriguez lost out on the time limited relief that is available to children in removal proceedings.”
Counsel Kristen Jackson further argued that Rodriguez challenges the agency’s findings that DHS establishes alienage by “clear, equivocal, and convincing evidence.”
Under the Court’s decisions in Paris Cruz, counsel argued that this decision makes it clear that the birth certificate did not arise from identity evidence alone. According to Counsel Kristen Jackson, “identity evidence may include name and date of birth, but it certainly does not include birth place.”
Counsel Jackson also argued that the government has a duty to authenticate documents that it intends to use in removal proceedings, which it failed to do so here.
If the court chooses to opt to conduct the proper legal inquiry to Rodriguez’s motions to terminate, Counsel Upshaw argued that the court must also address his claims related to his application under the convention against torture.
According to Counsel Upshaw, Rodriguez faces individualized and unique risk of torture if removed to Mexico.
Rodriguez faces torture at the hands of cartel members because of Rodriguez and his sister’s cooperation in law enforcement investigations relating to individuals affiliated to two extremely violent Mexican cartels.
Rodriguez also faces torture from Mexican law enforcement and gangs who will presume him to be a gang member, in addition to torture from his maternal uncle, based on an on-going land dispute over which his father was killed more than two decades ago.
Counsel Upshaw argued that in its initial consideration of Rodriguez’s application, “the agency made significant legal errors that must be corrected on remand.”
First, the agency ignored this court’s holding in Maldonado v. Lynch, and imposed a legal burden on Rodriguez regarding the impossibility of internal relocation with Mexico.
Second, the agency analyzed each source of torture that Rodriguez faces in Mexico separately, but failed to consider the aggregate risk, or combined risk, from all these sources of torture together.
Counsel Upshaw argued that this was clear legal error as this court held in Quijada Aguilar vs Lynch, in which the combined risk of torture from multiple sources may meet the standard for the application, even where those same sources considered individually does not meet the standard.
Third, the agency based its analysis of the threat on Rodriguez on the facts of the time of his hearing, but ignored the highly probative evidence that would increase his risk of future torture, namely the scheduled release from prison of his cartel-involved cousin. His cousin had made specific threats to him in retaliation for his sister’s cooperation in the cousin’s prosecution.
Counsel Upshaw also argued that the agency additionally erred on focusing on the irrelevant facts that Rodriguez’s tattoos are in fact not gang-related, in which Rodriguez argued that he would be targeted by law enforcement and gangs in Mexico because the tattoos would be suspected to be gang-related.
In addition to this, the agency also erred in finding that the country conditions evidence did not show government acquiescence in torture committed by law enforcement officials and by cartel members.
Jennifer A. Bower, the respondent on behalf of the Attorney General, argued that the record reflects that the proper service was perfected the second time, and Flores Chavez v. Ashcroft did not hold this precedent.
Judge Wardlaw questioned the respondent, Bower, in regards to the clear precedent in Flores Chavez v. Ashcroft, “can we really say it is okay to serve a minor or their parent, say even if the juvenile court says they are exercising the parental role of the minor, and then simply sit back and wait until that child turns 18 and then serve him again?”
Respondent did not have a clear answer for this and stated that the DHS did not “simply sit back and wait, rather DHS was alerted to this fact and service was then shortly perfected.”
Respondent Bower further argued that the record did not reflect whether in the earlier hearings, there was any plea or rulings made as the transcripts were unavailable, but argued that the prejudice was purely speculative.
Bower claimed that this would be “assuming that he would have been eligible at that time in which we cannot know certainly what could have happened, and we certainly know that he is ineligible now…”
Judge Wardlaw questioned the respondent in regards to the prejudice, asking “is it a per se role that prejudice is presumed if you’re a juvenile and if your notice is served on you, but not the parent or guardian? Is it presumed that it is prejudicial that you are not able to take advantage of whatever relief might be available, speculative in hindsight or not? Because you are not being able to assert your rights in this.”
Respondent Bower then moved to address the basis of the government’s alienage proof, in which Bower claimed that identity is not suppressible and argued that Counsel failed to address his federal charges for methamphetamine.
When Judge Wardlaw asked “so where did the birthplace come from,” Respondent Bower did not have an answer as to where it came from, but argued that “it does not mean that it came from improper access to juvenile records.”
In response to the threat of future harm, Respondent Bower argued that the agency addressed each of his claims related to Rodriguez’s uncle, tattoos, and his cooperation with law enforcement in Mexico, but concluded that “it was all too speculative for him to sustain his high burden of high probability of torture.”
Counsel Jackson refuted Respondent Bower in rebuttals, in which she argued that “it is clear that proper service had not been compiled with, and yet the government moved forward against Mr. Rodriguez.”
Counsel Jackson further argued that “it is very telling when the court asked the question of where the birthplace information came from, that there was not a ready answer” and it is not anywhere on the face of the record. Counsel also argued that this was the government’s burden to show where this evidence was obtained, free from taint, and the government failed to do so.
The panel of judges reserved judgment until later.
Lovepreet Dhinsa is a junior undergraduate student at the University of San Francisco, pursuing her bachelor’s degree in Politics with a minor in Legal Studies. She has a passion for criminal defense law, and strives to go to law school to fight for indigent clients. As such, she is also involved in her university’s mock trial program and student government.
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