Jason Thurton v. Merrick Garland
20-73025
9th Cir.Oct 7, 2021Background
- Jason Thurton appealed a Final Administrative Removal Order issued by DHS under 8 U.S.C. § 1228(b).
- Thurton indicated he would contest deportability and submitted documents, but DHS issued the removal order immediately — with the same date/time as the Notice of Intent — instead of giving the 10-day response period required by regulation; the government conceded procedural error.
- Thurton does not dispute that he was convicted of an aggravated felony that renders him removable; his appellate challenge was limited to his alienage (i.e., that he is a U.S. citizen, national, or lawful permanent resident).
- Thurton also argued DHS denied him access to counsel during the initial removal interaction and that this violated his due process rights, claiming prejudice.
- The Ninth Circuit found any procedural errors harmless because Thurton did not and could not, even with more time or counsel, allege citizenship, nationality, or lawful permanent residency that would negate removability.
- The court denied the petition for review and denied as moot Thurton’s stay of removal motion and motion to supplement the record.
Issues
| Issue | Thurton's Argument | DHS's Argument | Held |
|---|---|---|---|
| Failure to provide 10-day response under 8 C.F.R. § 238.1(c)(1) | DHS abused discretion by issuing immediate removal and denying the 10-day response period | Government conceded procedural error but argued no prejudice to Thurton | Harmless error: Thurton failed to allege citizenship/nationality/LPR status and conceded aggravated-felony removability, so no prejudice shown |
| Denial of access to counsel / Due process | Denial of counsel at initial DHS interaction violated due process and warrants presumptive or actual prejudice | Gomez-Velazco controls: if individual can consult counsel before execution of removal, must show prejudice; DHS argued no prejudice here | Claim rejected: under Gomez-Velazco Thurton must show prejudice and could not, because he never alleged non-alienage status that would affect outcome |
Key Cases Cited
- United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979) (violation of a regulation renders deportation unlawful only if it prejudiced interests protected by the regulation)
- Gomez-Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018) (in administrative removal, denial of counsel at initial DHS interaction requires demonstration of prejudice if counsel is available before removal execution)