United States v. Estrada: the Sixth Circuit Misses the Mark in Finding No Due Process Violation in Immigration Judges' Failure to Provide Notice of Eligibility for Discretionary Relief

• Publication year: 2022

52 Creighton L. Rev. 353. UNITED STATES V. ESTRADA: THE SIXTH CIRCUIT MISSES THE MARK IN FINDING NO DUE PROCESS VIOLATION IN IMMIGRATION JUDGES' FAILURE TO PROVIDE NOTICE OF ELIGIBILITY FOR DISCRETIONARY RELIEF

UNITED STATES V. ESTRADA: THE SIXTH CIRCUIT MISSES THE MARK IN FINDING NO DUE PROCESS VIOLATION IN IMMIGRATION JUDGES' FAILURE TO PROVIDE NOTICE OF ELIGIBILITY FOR DISCRETIONARY RELIEF

Daniel J. Esquivel-'20

I. INTRODUCTION

For many people facing deportation from the United States, most avenues of relief have been exhausted, and thus discretionary relief is their last chance in the judicial process to remain in this country. ^[1] Title VIII of the Code of Federal Regulations subsection 1240.11(a)(2) ("the Regulation") grants authority to Immigration Judges ("IJ") in Aliens in Removal Proceedings. ^[2] The Regulation states that IJs shall inform aliens of apparent eligibility of relief from removal. ^[3]

When given the opportunity to address whether an IJ's failure to notify an alien of discretionary relief is a due process violation, the United States Supreme Court did not give a definitive answer. ^[4] In recent decades, many United States circuit courts of appeals have refused to recognize a due process violation when an IJ fails to notify an alien of the availability of discretionary relief. ^[5] Only the Second and Ninth Circuits have recognized a due process violation when an IJ failed to advise an alien of the availability of discretionary relief. ^[6]

In United States v. Estrada, ^[7] the United States Court of Appeals for the Sixth Circuit determined that when suspension of deportation is discretionary, no valid property interest exists, and thus a due process violation cannot occur. ^[8] The defendant in Estrada sought to collaterally attack his underlying deportation hearing by asserting the immigration court denied him due process. ^[9] The Sixth Circuit upheld the United States District Court for the Eastern District of Tennessee's finding that the IJ's failure to inform Estrada of discretionary relief did not amount to a due process violation. ^[10]

This Note will discuss the Sixth Circuit's analysis in refusing to find a due process violation when an IJ fails to advise an alien of the availability of discretionary relief. ^[11] First, this Note will present the facts and holding of Estrada. ^[12] An examination of the procedures in removal proceedings and procedural due process will follow. ^[13] This Note will then discuss the United States Supreme Court's decisions regarding an alien's right to discretionary relief. ^[14] This Note will also discuss the recent circuit split regarding whether an IJ's failure to notify an alien of discretionary relief amounts to a due process violation. ^[15] Finally, this Note will argue that the Sixth Circuit's failure to recognize federal regulations resulted in the denial of due process because 8 C.F.R. section 1240.11(a)(2) establishes a property interest in the IJ's notice to an alien of the availability of discretionary relief. ^[16]

II. FACTS AND HOLDING

In United States v. Estrada, ^[17] the United States Court of Appeals for the Sixth Circuit affirmed the United States District Court for the Eastern District of Tennessee's refusal to find a due process violation when the IJ failed to inform the defendant of discretionary relief. ^[18] Emilio Estrada was a Mexican citizen and Green Card holder. ^[19] Undercover officers arrested Estrada in November of 2007 after attempting a controlled purchase of methamphetamine from Estrada. ^[20] Estrada pleaded guilty to possession of a firearm by an unlawful user of a controlled substance. ^[21] Following his guilty plea, the immigration court ordered Estrada to appear for removal proceedings. ^[22] At his removal hearing, Estrada stated that he understood his rights, and he advised the IJ that he had retained counsel; however, his counsel was not present. ^[23] At his next hearing before the IJ in March 2009, the court ordered Estrada to be removed from the United States. ^[24]

A few years later, Estrada illegally reentered the United States, and law enforcement officers arrested him once more. ^[25] In May of 2013, a federal grand jury indicted Estrada for being in the United States after being removed following the commission of an aggravated felony. ^[26] In March of 2015, a federal grand jury indicted Estrada again for another count of the same offense. ^[27] Estrada then moved to have the indictment dismissed by collaterally attacking his 2009 deportation order. ^[28] Estrada argued that his due process rights were violated when the IJ failed to act pursuant to § 212(h) of the Immigration and Nationality Act ^[29] ("INA") and advise him of his eligibility for discretionary relief from removal. ^[30]

The district court determined that the IJ's failure to inform Estrada of discretionary relief was not a due process violation. ^[31] The district court began its analysis by stating that to succeed on a collateral attack a defendant must demonstrate the following: the administrative remedies were exhausted; the opportunity for judicial review was denied; and the order was fundamentally unfair. ^[32] The district court opted to forgo the first two prongs and focused its analysis on the third element of fundamental unfairness. ^[33] The district court stated that for Estrada to show the fundamental unfairness of his underlying deportation order, he must prove: (1) a due process rights violation resulting from defects in the deportation proceeding and (2) his suffering of prejudice because of the defects. ^[34] The district court reasoned that since section 212(h) relief is not mandatory, there can be no constitutionally-protected liberty interest in discretionary relief from deportation. ^[35]

Finally, the district court stated that since Estrada was not able to establish a due process violation, he could not establish the fundamental unfairness of his deportation proceedings; therefore, Estrada failed to satisfy the third element of his collateral attack. ^[36] The district court denied Estrada's motion to dismiss his original indictment and his superseding indictment. ^[37] Estrada appealed the district court's denial of his motion to dismiss the indictment to the Sixth Circuit. ^[38]

On appeal, Estrada amended his initial motion to dismiss, and collaterally attacked the deportation order on due process grounds by claiming that his attorney failed to present Estrada's eligibility for discretionary relief under section 212(h) of the Immigration and Nationality Act. ^[39] The Sixth Circuit stated that many circuit courts have failed to recognize that an alien has a constitutional right to be informed of discretionary relief. ^[40] The court, however, decided not to adopt the opinions of the United States Courts of Appeal for the Second and Ninth Circuits, which have held that an IJ's failure to inform an alien of potential eligibility for discretionary relief is a violation of due process. ^[41]

The Sixth Circuit began its analysis by stating the three prong test a defendant must satisfy to challenge the validity of a deportation order. ^[42] Like the district court, the Sixth Circuit did not address the first two prongs, and instead focused solely on the third prong. ^[43] The court acknowledged that aliens in removal proceedings are entitled to a full and fair hearing under the Due Process Clause of the Fifth Amendment. ^[44] The court reasoned that for Estrada to prove his removal proceedings were fundamentally unfair, he must establish that his due process rights were violated as a result of defects in the deportation proceeding and that prejudice resulted from those defects. ^[45] In addition, the court also required Estrada to demonstrate he was deprived of life, liberty, or property interest. ^[46]

The court referenced Ashki v. Immigration and Naturalization Services ^[47] in deciding whether Estrada had a liberty interest in his removal proceedings. ^[48] This Sixth Circuit case held that an individual does not have a constitutionally protected liberty interest in discretionary relief from deportation. ^[49] The Sixth Circuit determined that although Ashki did not address INA section 212(h), its holding applied to the case at hand. ^[50] The Sixth Circuit determined that when deportation relief is discretionary, no protected constitutional liberty or property interest exists. ^[51] Finally, the court held that because Estrada failed to establish a due process violation, he could not establish his removal proceedings were fundamentally unfair. ^[52] The Sixth Circuit affirmed the district court's denial of Estrada's motion to dismiss his indictments. ^[53]

III. BACKGROUND

A. REMOVAL PROCEEDINGS

The Legislature has absolute authority in determining immigration law. ^[54] In delegating that authority, Congress granted the Executive authority in the administration of immigration laws. ^[55] Pursuant to that grant of power, agencies of the executive branch may create regulations which they deem necessary in the administration of immigration laws. ^[56] This grant of power permits those agencies to structure regulations setting forth the procedural requirements in removal proceedings. ^[57]

In removal proceedings, the government bears the burden in demonstrating that an alien is deportable by providing clear, convincing, and unequivocal evidence. ^[58] The full spectrum of constitutional...