464 F.3d 842 | 9th Cir. | 2006
Lead Opinion
The BIA correctly dismissed as untimely Mendez-Alearaz’s motion to reconsider.
Facts
Mendez-Alcaraz, an alien with lawful permanent residence status, pleaded guilty in 1996 to sexual abuse of a minor.
At the time of his removability hearing, we had not yet held that sexual abuse of a minor was an “aggravated felony” for purposes of this statute. (The statute was amended expressly to make it one, but the effective date of the amendment was after Mendez-Alearaz’s guilty plea.
The IJ ordered Mendez-Alcaraz removed to Mexico. Mendez-Alcaraz expressly waived appeal after conferring with counsel. He moved to Mexico in January 2003, in compliance with the order of removal. Mendez-Alearaz’s brief alleges that he has neither reentered nor at
Fourteen months after the hearing and removal order (and waiver of appeal), Mendez-Alearaz moved for reconsideration, on the theory that when he pleaded guilty to sexual abuse of a minor, it was not an aggravated felony. The IJ denied the motion because “[t]he same arguments were raised at trial. Respondent could have reserved and filed appeal. There is nothing ‘new’ or ‘different’ now.” Mendez-Alearaz appealed the denial of reconsideration to the BIA. It dismissed, agreeing with the IJ’s decision, and adding several alternative grounds: (1) the IJ and BIA had no jurisdiction to grant reconsideration because Mendez-Alearaz had been removed to Mexico;
Analysis
We must first decide whether Mendez-Alcaraz’s removal to Mexico deprives us of jurisdiction to decide this petition for review from the denial of his motion for reconsideration. The answer would have been that it did, before the “transitional rules” period
The BIA based its dismissal of Mendez-Alcaraz’s appeal on three independent grounds. Because untimeliness is dispositive, we need not reach the other issues.
Mendez-Alcaraz argues that the IJ deprived him of the knowledge he needed by telling him that his crime was indeed an aggravated felony, and “[l]iving in Mexico, Mr. Mendez was unaware” of two decisions that would have made aggravated felony classification arguable, and “through reasonable diligence could not have discovered” these cases.
We cannot accept this argument. There is no claim that the internet and law libraries do not exist in Mexico. Moreover, the IJ expressly told Mendez-Alcaraz that he “could be wrong on this. There is a significant legal issue,” before asking if Mendez-Alearaz wanted to appeal. We further note that Mendez-Alcaraz had counsel then and now.
PETITION DENIED.
. Or.Rev.Stat. § 163.427.
. 8 U.S.C. § 1227(a)(2)(A)(iii).
. Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)); INS v. St. Cyr, 533 U.S. 289, 297, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir.2002).
.8 U.S.C. § 1101(a)(43)(A).
. See 8 C.F.R. § 1003.2(d) ("A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.”); 8 C.F.R. § 1003.23(b)(1) (same).
. 8 C.F.R. § 1003.23(b)(1).
. See Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir.2000) ("Congress intended the 1996 amendments to make the aggravated felony definition apply retroactively to all defined offenses whenever committed, and to make aliens so convicted eligible for deportation notwithstanding the passage of time between the crime and the removal order.").
. 8 U.S.C. § 1105a(c) (1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009; see also Contreras-Aragon v. INS, 852 F.2d 1088, 1091 n. 1 (9th Cir.1988), superseded by statute, Pub.L. No. 104-208, 110 Stat. 3009, as recognized in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1170-71 (9th Cir. 2003).
. 8 U.S.C. § 1252(d).
. 8 U.S.C. § 1105a(c)(1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009 (providing for the effective date of the permanent rules).
. 8 U.S.C. § 1252(d).
. Zazueta-Carrillo, 322 F.3d at 1171.
. Id. Accord Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir.2001) (holding that, after IIRI-RA, a petitioner's removal from the United States does not render the case moot); Tapia Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir.2001) (holding that "deportation no longer forecloses judicial review”).
. The dissent raises issues that Petitioner did not, and that have nothing to do with the timeliness issue upon which we have decided this case. Generally, we need not and do not consider issues that are neither pre-served nor raised on appeal or by petition for review. United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995). Even if the issues were pre
. Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc) (quotation marks and brackets omitted).
. Id. at 1193 (citation and internal quotations marks omitted).
Dissenting Opinion
dissenting:
I.
The government removed Tomas Mendez-Alcaraz (“Mendez”) from this country based on a criminal conviction that violated his procedural due process rights under the Fourteenth Amendment to the U.S. Constitution. Because such an unconscionable result cannot be affirmed, I dissent.
II.
Shortly after his sixteenth birthday, petitioner Mendez, a lawful permanent resident of the United States, was subjected to an unlawful application of state law that cost him not only six years of his freedom, but also his ability to stay in the United States.
Although the laws of the United States and the state of Oregon, where Mendez resided, categorized him as too young to vote in elections, purchase cigarettes, consent to a sexual act, or possess alcohol,
The legal consequences of Mendez’s delinquency were so drastic that he had a right to a hearing to determine whether he should have been tried as an adult. As the Supreme Court has noted, “[T]here is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing.” Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).
III.
On the afternoon of July 20, 1995, Aynna Glover and Jenny Franklin, ages eleven and twelve, respectively, stopped at Mendez’s home on their way to a swimming pool. They had met Mendez approximately one week earlier and evidently were at the residence to meet some other friends before going to the pool.
Shortly after arriving at the Mendez residence, Franklin went with Mendez’s brother into another room, leaving Glover and Mendez alone together in the living room. They began playfully wrestling and pinching each other, which eventually lead to kissing.
There is some dispute as to what happened next. Glover contends that Mendez held her down and forcibly inserted his finger into her vagina. Mendez admits to digitally penetrating Glover, but contends that the act was consensual
Over one month later, Glover reported the incident to the police after she learned that her parents had found out about it. Mendez was apprehended and charged with first degree unlawful sexual penetration, first degree sexual abuse, and first degree attempted rape.
Pursuant to Oregon’s Measure 11 law, sixteen year-old Mendez was automatically processed in the adult criminal justice system without any hearing regarding the suitability of that forum. He pleaded guilty to one count of sexual abuse
Using the findings of the staff psychologist who evaluated Mendez, a county pre-sentence investigation unit and diagnostic center “unanimously agreed [that] if this were not a Ballot Measure 11 case, [it] would in fact recommend a probationary sentence” with out-patient treatment in the community. However, because it was a Measure 11 case, the judge sentenced Mendez to the mandatory minimum under Measure 11 for first degree sexual abuse, 75 months imprisonment, as well as 120 months of post-prison supervision. Mendez served three years in a juvenile detention facility and three years in a state prison for adults. He was released on May 22, 2002, a few weeks before his twenty-third birthday.
Seven months after Mendez’s release, the Immigration and Naturalization Service (now Immigration and Customs Enforcement) took Mendez, a legal permanent resident of the United States, into custody and sought to have him removed to Mexico based on his sexual abuse conviction. Mendez had no other criminal record.
After a removal hearing before an immigration judge, Mendez was ordered out of the country. He moved with his wife to Baja California, where they currently reside.
IV.
In 1994, Oregon voters approved Measure 11 by a margin of 65% to 35%. The measure contains two important provisions.
This trend represents a sharp departure from the traditional aim of the juvenile justice system, which, since its introduction in Illinois in 1899, has sought to discard the “rigidities, technicalities, and harshness” of the criminal justice system and replace it with treatment and rehabilitation. In re Gault, 387 U.S. 1, 15-16, 87
Since at least 1924, the Oregon Supreme Court has noted that “the purpose of the children’s court is not to convict or punish, but to protect.” Hills v. Pierce, 113 Or. 386, 231 P. 652, 654 (1924). Oregon courts have recognized juvenile procedure as “equitable in that the remedies may be flexible and based upon ‘conscience’ and judgment, rather than upon more or less rigid rules of law.” State ex rel. Juvenile Dep’t v. Reynolds, 317 Or. 560, 857 P.2d 842, 848 n. 11 (1993) (quoting State v. Gullings, 244 Or. 173, 416 P.2d 311, 312 (1966)). The juvenile justice system has as its “primary objeetive[s]” the avoidance of “the stigma associated with a criminal conviction” and the emphasis of “rehabilitative efforts.” State ex rel. Juvenile Dep’t v. Fitch, 192 Or.App. 56, 84 P.3d 190, 195 (2004); In re Williams, 55 Or.App. 951, 640 P.2d 675, 679 (1982) (“It is significant that the juvenile court system is generally considered to be more favorable to a child than is the adult court system, because in the former the welfare of the child is the highest concern.”).
The strong moral, legal, and policy reasons for distinguishing between juvenile delinquents and adult criminals are “too obvious to require extended explanation.” Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). The Supreme Court has highlighted three such reasons. Roper, 543 U.S. at 569-70, 125 S.Ct. 1183. First, juveniles lack the maturity and developed sense of responsibility we attribute to adults. Id. at 569, 125 S.Ct. 1183. Second, they are more susceptible to negative influences and peer pressure than are adults. Id. Third, their personality traits are more transitory and less fixed, indicating a higher likelihood of rehabilitation of juveniles than of adults. Id. at 570, 125 S.Ct. 1183. As the Court noted, “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id.
Developmental literature also bears out the conclusion that “adolescents and adults are different in ways that warrant their differential treatment under the law.”
Juvenile psychological development is pertinent to at least three aspects of the criminal justice process: competency to be prosecuted, culpability for the underlying offense, and amenability to treatment.
First, youths are more likely to find themselves scared and intimidated by the adversarial nature of adult proceedings. They may lack the capacity to meaningful
Second, youths may lack the requisite culpability that the law has long recognized as an essential element of most criminal laws.
Third, juvenile development bears on the issue of punishment and amenability to treatment.
Both the law and the scientific literature agree that when it comes to crime, juveniles are different.
V.
The United States Supreme Court, the Ninth Circuit, and the Oregon Supreme Court have all held that transferring a child from the juvenile justice system to the adult criminal justice system is an event of such importance that due process requires she or he be given a hearing. Kent, 383 U.S. at 554, 86 S.Ct. 1045; Barker v. Estelle, 913 F.2d 1433 (9th Cir.1990); Bouge v. Reed, 254 Or. 418, 459 P.2d 869 (1969).
In Kent, the Supreme Court dealt with the issue of whether the District of Columbia’s transfer law, “read in the context of constitutional principles relating to due process,” required the juvenile court to provide the child a hearing prior to waiving its jurisdiction (hence transferring the case to adult criminal court). Kent, 383 U.S. at 552, 557, 86 S.Ct. 1045. The Court held that it did, noting that “[i]t would be extraordinary if society’s special concern for children ... permitted this procedure” of sending children to adult criminal court without a hearing. Id. at 554, 86 S.Ct. 1045.
Although Kent was arguably decided as a matter of statutory law, the Court has since clarified the Fourteenth Amendment issue, stating that “the basic requirements of due process and fairness [must] be satisfied in such proceedings.” In re Gault, 387 U.S. at 12, 87 S.Ct. 1428. As the Oregon Supreme Court has explicitly recognized, “the intent of the United States Supreme Court, as expressed in [Kent and In re Gault], is that the due process clause of the Constitution of the United States requires states to accord a hearing
The necessity of holding an individualized hearing prior to prosecuting a child as an adult follows logically from the basic legal and developmental tenets of our juvenile justice system. As Dr. Steinberg has noted, “the need for this additional information argues for a more individualized approach to both transfer and sentencing of juveniles, and argues against policies that do not permit such flexibility, such as transfer via legislative exclusion.”
Undoubtedly, many juveniles have attained the maturity, foresight, and responsibility we expect from adults, and they may be prosecuted accordingly. As a general rule, however, Oregon law requires that juveniles receive a hearing prior to being transferred to adult court. Or.Rev. Stat. § 419C.349. Measure 11 removes this protection for juveniles charged with certain crimes. To take such a highly personal and fact-specific inquiry out of the hands of juvenile court judges, as Measure 11 does, violates procedural due process.
But for Measure 11, Mendez would have received a hearing in juvenile court as to whether or not he should have been tried as an adult. Or.Rev.Stat. § 419C.349. The court would have determined whether or not Mendez had “sufficient sophistication and maturity to appreciate the nature and
First, the court would have considered Mendez’s amenability to treatment and rehabilitation, which his psychological profile indicates was high.
Of course, it is not our role to decide on the merits whether or not Mendez should have been tried as an adult or as a child, “but there is no place in our system of law for reaching a result of such tremendous consequences ... without hearing.” Kent, 383 U.S. at 554, 86 S.Ct. 1045. A juvenile court judge should have had the opportunity to consider whether Mendez should have been prosecuted as an adult or kept in the juvenile system. In the end, that decision was made by the prosecutor, whose charging discretion determined which court retained jurisdiction over Mendez.
VI.
In the end, this is a case of a young man suffering expulsion from this country for a crime he committed when he was a child. Let there be no doubt about it: his behavior was indisputably wrong and deeply troubling. But also troubling is Oregon’s abandonment of individualized analysis and the withholding of children’s due process rights.
It is difficult to discern who in this case has benefitted from such a constitutionally offensive law. Certainly not Mendez, who lost six years of his life and the right to live in the United States. Certainly not the people of Oregon, who spent large amounts of tax dollars to incarcerate an individual with no prior criminal record, whose psychological evaluation found a young man with a low likelihood of recidivism that “acknowledge^ the wrongfulness of his behavior,[was] capable of generating victim empathy, and asserte[d] that he [was] willing to participate in corrective counseling.”
Ten years ago, the victim’s father, seeking treatment for Mendez rather than incarceration, told an investigator, “We just do not want to see Tomas’ life messed up.” Measure 11, by rejecting the foundational tenets of our juvenile justice system and violating the Fourteenth Amendment, did just that.
. Or.Rev.Stat. § 247.015 (2006) (must be over eighteen to register to vote); Or.Rev.Stat. § 167.401 (2006) (illegal for minor under eighteen to purchase or possess tobacco); Or. Rev.Stat. § 163.315(a) (2006) (person under eighteen incapable of consenting to a sexual act); Or.Rev.Stat. § 471.430 (2006) (illegal for person under twenty-one to purchase or possess alcohol).
. Of course, as a matter of law, Glover could not have consented since she was only eleven years old. Or.Rev.Stat. § 163.315(a) (2006).
. None of this should be read as minimizing Mendez's illegal and irresponsible conduct. There is no excuse for a 16 year old boy to engage in sexual activity with an 11 year old girl, regardless of the circumstances. Mendez himself recognizes as much. In his psychological evaluation, Mendez showed "no indications of denial or minimization of the seriousness of his conduct. He acknowledge[d] its wrongfulness and expresse[d] a willingness to participate in appropriate treatment.” These additional facts, however, do highlight the importance of individualized hearings that consider all factors and effects of a juvenile's conduct prior to transferring him or her to adult court.
. Or.Rev.Stat. § 163.411 (2006); Or.Rev.Stat. § 163.427 (2006); Or.Rev.Stat. § 163.375 (2006).
. Or.Rev.Stat. § 163.427 (2006) reads, in relevant part:
“(1) A person commits the crime of sexual abuse in the first degree when that person:” "(a) Subjects another person to sexual contact and:” (A) The victim is less than 14 years of age;
*847 "(2) Sexual abuse in the first degree is a Class B felony.”
.As codified at Or.Rev.Stat. § 137.707 (2006), Measure 11 reads, in relevant part:
“(l)(a) Notwithstanding any other provision of law, when a person charged with ... an offense listed in subsection (4) of this section is 15, 16 or 17 years of age at the time the offense is committed, and the offense is committed on or after April 1, 1995, the person shall be prosecuted as an adult in criminal court.”
“(2) When a person charged under this section is convicted of an offense listed in subsection (4) of this section, the court shall impose at least the presumptive term of imprisonment provided for the offense in subsection (4) of this section....
"... (4) ...
"(p) Sexual abuse in the first degree, as defined in ORS 163.427 * * * 75 months[.]”
. Oregon House Bill 2379, which is now law, gave judges the power to downwardly depart from the mandatory mínimums for certain crimes, including first degree sexual abuse, under certain circumstances. Or.Rev.Stat. § 137.712 (2006).
. Or. Dep’t of Corrections, Offenders with Measure 11 Convictions as of August 1, 2006, Under Age 18 on Date of Crime (2006), available at htt p://www.oregon.gov/DOC/ RESRCH/docs/ml ljuv.pdf. This document also demonstrates a troubling racial disparity when one compares the statistics for minority offenders to their representations in the general population of Oregon. Although African-Americans make up only 1.8% of the Oregon
. Task Force on Youth in the Criminal Justice System, American Bar Association, Youth in the Criminal Justice System 1 (2001) ("Since 1991 almost every state has widened the scope of persons under eighteen who, after being charged with a crime, are processed by adult criminal courts rather than by juvenile or family courts.”) (hereinafter Youth in the Criminal Justice System); see generally, Mike A. Males, The Scapegoat Generation: America’s War on Adolescents (1996).
. See, e.g., John J. Dilulio, Jr., The Coming of the Super-Predators, Weekly Standard, November 27, 1995, at 53 ("On the horizon ... are tens of thousands of severely morally impoverished juvenile super-predators. They are perfectly capable of committing the most heinous acts of physical violence for the most trivial reasons ... [F]or as long as their youthful energies hold out, they will do what comes 'naturally:' murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”).
. See, e.g., Peter Annin, Superpredators Arrive: Should We Cage the New Breed of Vicious Kids?, Newsweek, January 22, 1996, at 57. See also Jerome Miller, Riding the Crime Wave: Why Words We Use Matter So Much, Nieman Reports: The Nieman Foundation for Journalism at Harvard University, Winter 1998, at 47 (analyzing the effects of "super-predator” rhetoric in the media).
. See, e.g., House Committee on Economic and Educational Opportunities, Subcommittee on Early Childhood, Youth and Families, Hearings on the Juvenile Justice and Delinquency Prevention Act, Serial No. 104-68, 104th Cong., 2d sess., 1996, at 90 (statement of Rep. Bill McCollum, chairman, Subcommittee on Crime, House Judiciary Committee) ("Brace yourself for the coming generation of 'super-predators.' ”).
. See, e.g., Franklin E. Zimring, The Youth Violence Epidemic: Myth or Reality?, 33 Wake Forest L.Rev. 727 (1998) (analyzing juvenile crime statistics and concluding "there never was a general pattern of increasing adolescent violence in the 1980s and 1990s.”).
. Laurence Steinberg, Temple University, Congressional Research Briefing, Should Juvenile Offenders Be Tried 4s Adults? A Developmental Perspective on Changing Legal Policies (Jan. 19, 2000), available at http://www. jcpr.org/wpfiles/Steinberg — briefing.pdf (hereinafter "Steinberg”).
. Id. at 3 (emphasis added).
. Laurence Steinberg & Elizabeth Cauffman, The Elephant in the Courtroom: A Developmental Perspective on the Adjudication of Youthful Offenders, 6 Va. J. Soc. Pol’y & L. 389, 398-399 (1999) (hereinafter "Steinberg & Cauffman”).
. Steinberg, supra, at 4-5; Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3 Psych. Pub. Pol. and L. 3 (1997); Thomas Grisso, et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. and Human Behavior 333 (2003).
. Steinberg, supra, at 5-6.
. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003); Juvenile Justice Center, American Bar Association, Adolescence, Brain Development, and Legal Culpability (2004), available at www.abanet.org/ crimjust/juvjus/Adolescence.pdf.
. Steinberg, supra, at 7.
. Id. Steinberg and Cauffman conclude that the offender's age is not determinative of amenability to rehabilitation. They argue for an individualized analysis of each offender. Steinberg and Cauffman, supra, at 414 ("Amenability decisions should be made on a case-by-case basis and should focus on the prior history, rather than the chronological age, of the offender.”).
. The majority cites Alvarado v. Hill, 252 F.3d 1066 (9th Cir.2001), for the proposition that Measure 11 does not violate the Fourteenth Amendment. However, Alvarado does not control. The court in Alvarado, adopting the standard of review required by AEDPA in a habeas matter, noted that "[t]he question before us is not whether Measure 11 violates due process as that concept might be extrapolated from the decisions of the Supreme Court[;]” the question was whether there had been a violation of clearly established federal law. Id. at 1068-69. Although the Supreme Court has not explicitly declared Measure 11 unconstitutional, such a conclusion is easily extrapolated from In re Gault and Kent. See, e.g., Bouge, 459 P.2d at 870.
. Steinberg, supra, at 7.
. Id. at 8.
.Youth in the Criminal Justice System, supra, at 1 n. 1. In fact, Measure 11 violates three of the seven guiding principles set out by the ABA's Task Force on Youth in the Criminal Justice System. Measure 11 ignores the fact that "developmental differences need to be taken into account at all stages and in all aspects of the adult criminal justice system.” Measure ll’s mandatory mínimums do not let judges "consider the individual characteristics of the youth during sentencing.” Measure 11 also makes the "collateral consequences normally attendant to the adult criminal justice process ... apply to all youth” convicted of certain crimes, including the effects such convictions may have on immigration status, as in Mendez’s case. Id. at 7.
. Mendez's psychological evaluation states, "He is highly likely to benefit from any form of counseling afforded to him, and is amenable to community based outpatient programming. The likelihood of recidivism, already low due to the situational nature of his offense, would be even lower were he involved in treatment."
. Child psychologists have noted the effects that child abuse may have on a victim's own sexual misconduct. Marty Beyer et al., More Than Meets the Eye: Rethinking Assessment, Competency and Sentencing for a Harsher Era of Juvenile Justice 12 (2002) (“Early trauma appears to be a significant, but often untreated, factor in sexual acting out by teenagers. The insistence of many professionals that children charged with sex offenses are predatory, using an adult model, fails to recognize their own sexual victimization and the necessity of recovering from it. Molesting younger children is a repetition of the sadistic treatment they received.”).
.Prosecutors and judges alike recognize the enormous power Measure 11 gives to charging decisions. One Oregon prosecutor "recognizes that Measure 11 gives us amazing authority. With it comes corresponding responsibility and we exercise discretion in charging and negotiating judiciously.” Scott Heiser, quoted in League of Women Voters of Oregon Education Fund, Effects of Measure 11 on Juvenile Justice in Oregon (2000), http:// www.lwvor.org/documents/JuvenileJustice 2000.htm. Judges have also expressed concern over the effect of Measure 11 on plea negotiations between juveniles and prosecutors. Id. ("[Benton County] Judge [Robert S.] Gardner says that overcharging puts pressure