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Ninth Circuit:
Interpreter’s Error at Hearing Resulted in ‘Fundamental Unfairness’
As a Result, Majority Says, 2012 Deportation Order Must Be Disregarded, Barring Prosecution for Illegal Entry Following Removal; Ikuta Dissents
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday, in a 2-1 decision, affirmed the dismissal of an indictment on the charge of illegally entering the U.S. after having previously been removed, holding that the initial deportation in 2012 ensued from proceedings that were “fundamentally unfair” based on an erroneous translation.
As the majority viewed it, when the interpreter at a deportation hearing had used the Spanish word for “hire” in relaying the judge’s advisement of a right to counsel, he imparted to the detainee that he could have a lawyer only if he could afford to pay one, deterring him from seeking pro bono representation. In deportation proceedings, indigents enjoy no right to counsel provided by the government.
Confusion created by the erroneous translation also invalidates defendant Rosendo Valdivias-Soto’s waiver of the right to appeal to the Board of Immigration Appeals (“BIA”), the majority declared, finding that there was not a failure to exhaust remedies.
Authoring the majority opinion was District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation. Circuit Judge Ronald M. Gould joined in the opinion.
Circuit Judge Sandra S. Ikuta dissented, arguing that the deportation proceeding was not “fundamentally unfair,” a requisite for relief under 8 U.S.C. 1326(d).
Advisement to Detainees
What the immigration judge (“IJ”) actually said at the 2012 proceeding, in addressing Valdivias and other pretrial detainees via teleconferencing, was:
“At this and every hearing, gentlemen, you can have an attorney, but the government will not pay for your attorney....[I]f you want an attorney, you must find one for yourself at no expense to the government.”
That was translated as:
“[I]n this proceeding and any other one that you have with immigration, you can hire an attorney. The government does not pay for the service of an attorney. Each one who, then, wants to hire an attorney goes and hires one at his own expense.”
In translating a further advisement, the translator again used the Spanish word for “hire,” saying:
“[T]o each one who would like to look for an attorney to hire one, a list of local legal services has been provided. When the people signed up on the list, those attorneys indicate[d] to the judge that they can do cases free of charge and others for a low fee.”
The detainees were also told, in Spanish, that “if anyone would like to hire an attorney,” the judge would postpone the case. Valdivias waived his right to counsel and his right of appeal. The IJ ordered removal after Valdivias admitted the allegation of illegal entry into the United States and he was, in fact, deported—but returned later and in February 2015, was indicted for illegal reentry in violation of 8 U.S.C. § 1326.
Korman’s Opinion
In his opinion affirming the dismissal of the indictment by District Court Judge Beth Labson Freeman of the Northern District of California, Korman said:
“…Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for “hire” in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation….
“As a result of the erroneous translation, Valdivias did not enter a knowing and voluntary waiver…. Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”
He added that “the translation errors at his removal hearing rendered his waiver of the right to appeal invalid.”
Under §1326(d), an alien “may not challenge the validity of the deportation order” unless “the alien exhausted any administrative remedies that may have been available to seek relief against the order.”
Korman pointed out that “defendants need only have exhausted administrative remedies that were ‘available’ to them.” He said the translator’s error effectively rendered review unavailable.
The jurist wrote that “Valdivias was led to believe that, unless he could afford to ‘hire’ counsel, only a pro se appeal was available to him” and “the erroneous translations that resulted in Valdivias’s invalid waiver of his right to counsel also denied him the assistance of counsel in identifying potential paths for obtaining relief and assessing whether to appeal.”
Ikuta’s Dissent
Ikuta said that Valdivias—who “had been convicted of multiple offenses” between his illegal entry into the U.S. in 1999 and the institution of deportation proceedings in 2009—suffered no due process deprivation at the 2012 proceeding.
The IJ was required by one statute to advise of the right to counsel, though not at government expense, obliged by another statute to provide a list of pro bono counsel, Ikuta noted, saying that both mandates were met.
Ikuta maintained that the majority is wrong in finding that Valdivias was not fully apprised of his opportunity to gain the assistance of pro bono counsel. She pointed out:
“Immediately after stating that an alien could retain an attorney, the interpreter explained that if an alien ‘would like to look for an attorney to hire one, a list of local legal services has been provided’ which include attorneys that ‘can do cases free of charge.’ ”
She continued:
“But more important, the majority misapprehends the statutory scheme. The statute and regulations give Valdivias the right only to retain counsel at no expense to the government. They do not give Valdivias the right to pro bono representation….Valdivias has no more right to pro bono representation than he has a right to donated funds. The only right relating to pro bono counsel that Valdivias has under the regulations is the right to receive a list of pro bono counsel, which he received.”
Appeal Validly Waived
There was a valid waiver of the right to appeal, Ikuta opined. She said:
“The IJ provided a full explanation of Valdivias’s appeal right and stated that the right to appeal ‘is explained on the paper which is attached to the list of legal services,’ which included lawyers who would provide free legal services. Valdivias confirmed he understood his right to appeal and had received the written explanation of his appeal rights. According to Valdivias, his decision to waive his right to appeal was motivated by his desire to avoid being held in custody by immigration authorities; he did not mention the cost of hiring an attorney.”
After further advisements by the judge, she said, Valdivias reiterated his disinclination to appeal.
“Therefore, the government has shown by clear and convincing evidence that Valdivias validly waived his right to appeal,” Ikuta wrote.
Under the U.S. Supreme Court’s 2021 decision in United States v. Palomar-Santiago, “there was no obstacle rendering an appeal to the BIA unavailable.” There it was held that where there has been error at a deportation hearing, there may be an appeal “if further administrative review, and then judicial review if necessary, could fix that very error.”
The case is United States v. Valdivias-Soto, 20-10415.
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