United States v. Elias Juarez-Sanchez

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2018
• Docket: 17-30031
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30031

Plaintiff-Appellee, D.C. No. 1:15-cr-00396-AA-1

v. MEMORANDUM* ELIAS JUAREZ-SANCHEZ,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted June 6, 2018** Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,*** District Judge.

On November 5, 2015, Defendant-Appellant Elias Juarez-Sanchez was

indicted for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. In district court, Juarez-Sanchez filed a motion to dismiss the indictment against

him. Juarez-Sanchez argued that the underlying removal proceedings held in 2011

violated his due process rights. The district court denied his motion to dismiss and

Juarez-Sanchez then pleaded guilty to and was convicted of the illegal reentry

charge. Juarez-Sanchez timely appealed.

To successfully collaterally attack his removal order, Juarez-Sanchez must

demonstrate that “(1) [he] exhausted any administrative remedies that may have

been available to seek relief against the order; (2) the deportation proceedings at

which the order was issued improperly deprived [him] of the opportunity for

judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C.

§ 1326(d); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th

Cir. 2004). We review claims that defects in prior removal proceedings preclude

reliance on the final removal order in subsequent illegal reentry proceedings de

novo, but review the district court’s findings of fact for clear error. See United

States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012). This court can affirm

the district court’s denial of the motion to dismiss on any basis supported by the

record. Id. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291, and we affirm.

1. Juarez-Sanchez argues that his underlying removal proceedings were

unfair and violated his due process rights because he was provided translation

2 services in Spanish rather than his native Nahuatl language. Immigrants in

immigration removal proceedings, such as Juarez-Sanchez, are entitled to have

proceedings against them translated into a language they understand. See He v.

Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003); Perez-Lastor v. INS, 208 F.3d 773,

778 (9th Cir. 2000) (“It is long-settled that a competent translation is fundamental

to a full and fair hearing. If an alien does not speak English, deportation

proceedings must be translated into a language the alien understands.”).

Here, the key question is whether Juarez-Sanchez understood the Spanish

translation he received such that he comprehended the immigration proceedings

against him. Juarez-Sanchez requested that his removal hearing proceed in

Spanish, and a Spanish interpreter assisted him. Nothing in the record shows that

the translation was incorrect, that Juarez-Sanchez provided unresponsive answers

during the hearing, or that he expressed that he could not understand the Spanish

translation. See Perez-Lastor, 208 F.3d at 778.

Moreover, the district court held a hearing on the motion, considered all

testimony, considered the witnesses’ credibility, noted that the indigenous culture

and language expert’s testimony was particularly helpful, and determined that the

evidence supported the conclusion that Juarez-Sanchez sufficiently understood

Spanish such that his due process rights were not violated in his removal

proceedings. The district court also determined that Juarez-Sanchez was able to

3 respond appropriately to questions asked of him with the help of Spanish

interpreters. This court gives the district court’s factual findings regarding a

witness’s credibility “special deference,” United States v. Arreguin, 735 F.3d 1168,

1174 (9th Cir. 2013) (quoting United States v. Craighead, 539 F.3d 1073, 1082

(9th Cir. 2008)), and we do not disturb the district court’s finding regarding

witness credibility on this record. Accordingly, the district court did not err in

concluding that Juarez-Sanchez sufficiently understood Spanish, and his right to

competent translation was not violated.

2. Juarez-Sanchez also argues that his underlying removal proceedings

were unfair and violated his due process rights because the immigration judge

(“IJ”) failed to adequately advise him of his right to appeal. First, we reject Juarez-

Sanchez’s argument that the IJ’s advisory was inadequate because of incompetent

translation for the reasons stated above. Second, Juarez-Sanchez argues that aside

from incompetent translation the IJ’s advisory was inadequate. However, the IJ’s

advisory in this case is akin to the one given in United States v. Becerril-Lopez,

where the IJ “did not phrase his statements about appeal in the future tense; it was

clear that the time to appeal was at that hearing. [The IJ] also asked each individual

whether he would appeal or accept the decision as final.” 541 F.3d 881, 887 (9th

4 Cir. 2008).1 The court found no due process violation in Becerril-Lopez. Id.

Therefore, the district court here did not commit reversible error in concluding that

the IJ appropriately advised Juarez-Sanchez of his right to appeal the IJ’s decision.

3. Finally, Juarez-Sanchez argues that the IJ improperly admitted an

inadmissible state judgment of conviction and sentence for cocaine possession.

Here, the district court’s factual findings regarding the contested judgment were

not clearly erroneous and are supported by the record. Although the state judgment

is unsigned and undated, nothing on the face of the document suggests that it is

unreliable. Similar to the document at issue in Padilla-Martinez, the judgment here

has a stamp reading “COPY” on the first and last page. See Padilla-Martinez v.

Holder, 770 F.3d 825, 833 (9th Cir. 2014). The judgment also has a fax note and a

date stamp, again similar to the one in Padilla-Martinez. Id. Juarez-Sanchez also

admitted to the IJ that he had been convicted of cocaine possession. See 8 C.F.R.

§ 1003.41(d) (“Any other evidence that reasonably indicates the existence of a

criminal conviction may be admissible as evidence thereof.”).

Further, Juarez-Sanchez did not object to the judgment’s admission during

his removal proceedings even though the IJ advised him of his right to challenge

1 Here, the IJ advised Juarez-Sanchez, “And you have a right to appeal [the IJ’s] decision to a higher court, if you disagree with it.” The IJ also specifically asked Juarez-Sanchez if he wished to appeal the IJ’s decision ordering Juarez-Sanchez removed and he declined.

5 evidence offered against him. Accordingly, looking at the record as a whole, the

district court’s factual findings were not clearly erroneous and the record supports

the district court’s conclusion that the judgment of conviction the IJ relied upon

was reliable and admissible. See Padilla-Martinez, 770 F.3d at 833. We therefore

affirm the district court’s conclusion that the admission of the contested judgment

in Juarez-Sanchez’s removal proceedings did not violate his due process rights.

AFFIRMED.