United States v. Jose G. Herrera-Valdez
2016 U.S. App. LEXIS 11019
| 7th Cir. | 2016Background
- Herrera-Valdez, a Mexican national and U.S. lawful permanent resident, was convicted of a federal drug offense in 1992 and later served prison time; INS initiated removal proceedings in 1994 and an immigration judge ordered him deported after denying a §212(c) waiver.
- Samuel Der‑Yeghiayan served as Chicago District Counsel for INS during the period Herrera‑Valdez’s removal proceedings were litigated; his name appeared on INS briefs opposing Herrera‑Valdez’s administrative appeals.
- Herrera‑Valdez’s administrative appeals were dismissed by the BIA for procedural defects; his removal order was reinstated after a later state conviction and re‑entry, and he was indicted in 2012 for illegal reentry (8 U.S.C. §1326).
- The criminal case was assigned to Judge Der‑Yeghiayan, who denied Herrera‑Valdez’s motion to disqualify him under 28 U.S.C. §455 and denied Herrera‑Valdez’s motion to dismiss; Herrera‑Valdez entered a conditional guilty plea preserving appeal of those rulings.
- On appeal the Seventh Circuit considered (1) whether the recusal denial could be reviewed despite the circuit’s usual mandamus requirement and (2) whether §455(a) required Judge Der‑Yeghiayan to recuse because of his prior role as INS District Counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate review of denial of §455(a) recusal is available after a conditional plea without prior mandamus | Herrera‑Valdez argued the conditional plea reservation and swift disposition permit direct appeal of the recusal denial | Government waived the mandamus defense and urged the court to reach the merits; normally mandamus required | Court allowed review given (1) government’s waiver, (2) quick termination and limited intervening proceedings, and (3) conditional‑plea reservation |
| Whether Judge Der‑Yeghiayan’s prior role as INS District Counsel required recusal under 28 U.S.C. §455(a) | Herrera‑Valdez argued a reasonable, well‑informed observer could question impartiality because the judge headed the office that obtained the removal order central to the criminal charge | Government relied on Lara‑Unzueta and argued prior district counsel role did not mandate recusal absent direct participation in the underlying administrative proceeding | Court held §455(a) required recusal: appearance of bias existed because judge’s name was on INS pleadings and his prior supervisory role could lead observers to doubt impartiality; conviction reversed and case reassigned |
Key Cases Cited
- Liteky v. United States, 510 U.S. 540 (Sup. Ct. 1994) (standard for judicial bias and distinction between opinions and disqualifying conduct)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (Sup. Ct. 1988) (appellate review of recusal issues in certain contexts)
- United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001) (mandamus rule for interlocutory review of §455(a) recusal denials)
- In re Nat’l Union Fire Ins. Co., 839 F.2d 1226 (7th Cir. 1988) (policy reasons supporting prompt recusal motions and prevention of delays)
- United States v. Lara‑Unzueta, 735 F.3d 954 (7th Cir. 2013) (distinguishing mandatory recusal for former U.S. Attorneys from other former executive‑branch service)
- United States v. Hatcher, 150 F.3d 631 (7th Cir. 1998) (§455(a) objective reasonable‑observer test)