Amona Al-Refaei, Associate Member, University of Cincinnati Law Review
The Fifth Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them to a full and fair hearing.[1] But, there is currently a circuit split on whether an undocumented immigrant has a due process right to be told of discretionary relief from removal. The Sixth Circuit recently held that no such right exists.[2] This opinion depended on an already existing circuit split on this issue. In its opinion, the Sixth Circuit joined the Third, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits in holding that undocumented immigrants do not have a constitutional right to be informed of their eligibility for discretionary relief.[3]
A minority of the circuits, the Second and Ninth Circuits, have held that undocumented immigrants do have such a right.[4] The Second Circuit in United States v. Copeland stated “We believe that a failure to advise a potential deportee of a right to seek Section 212(c) [discretionary] relief can, if prejudicial, be fundamentally unfair within the meaning of Section 1326(d)(3).”[5] Additionally, the Ninth Circuit has “repeatedly held that an [immigration judge]’s failure to” advise an alien of his potential eligibility for discretionary relief violates due process.[6]
The federal statute, 8 U.S.C.S. § 1182, addresses inadmissible aliens who are ineligible to receive visas and ineligible to be admitted to the United States.[7] Section 1182(h) provides that the Attorney General may, in his discretion, waive the inadmissibility for certain immigrants.[8] Because the language of the federal statute states that relief is discretionary, the majority circuits are incorrect in holding that an alien has no constitutional right to be informed of eligibility for, or to be considered for, discretionary relief. The minority circuits are correct in holding that undocumented immigrants should have a right to be told of their potential eligibility for discretionary relief.
The Majority Circuit
In December 2017, Emilio Estrada argued to the Sixth Circuit that he had a due process right to be told of discretionary relief from removal.[9] However, the Court of Appeals for the Sixth Circuit declined to follow the Second and Ninth Circuits’ rulings.[10] The Sixth Circuit’s opinion depended on the already existing circuit split on this issue.[11] After the court’s decision in United States v. Estrada, Mr. Estrada will again be removed after losing his appeal.[12] Mr. Estrada reentered the United States illegally after being removed to Mexico in 2009.[13] In the appeal, Estrada argued that at his initial removal hearing, his attorney failed to advise him of the possibility of discretionary relief under federal immigration law.[14] As a result, Estrada conceded removability and was sent to his home country of Mexico.[15] Estrada was rediscovered in the United States by law enforcement in 2015.[16]
Additionally, defendants charged with unlawful reentry may not challenge the validity of their deportation order unless they demonstrate that: (1) they 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.[17] Because the requirements are conjunctive, the immigrant must satisfy all three prongs.[18]
Mr. Estrada argued his due process rights were violated when his attorney failed to advise him of or present to the Immigration Court his eligibility for relief from deportation under 8 U.S.C.S. §1182(h).[19] But, this argument was not accepted by the court, which held that relief under 8 U.S.C.S. §1182(h) was discretionary. Because the relief was discretionary, the court held there was no protectable liberty or property interest created.[20] Additionally, Estrada’s collateral attack on the deportation order underlying his conviction for unlawful reentry was unsuccessful pursuant to 8 U.S.C.S. § 1326(d) because he failed to establish any fundamental unfairness.[21]
To prove the fundamental unfairness of an underlying deportation order, defendants must show both a due process violation emanating from defects in the underlying deportation proceeding and resulting prejudice.[22] With respect to the procedural component, the defendant must establish that he was deprived of a life, liberty, or property interest sufficient to trigger the protection of the Due Process Clause in the first place.[23] An individual has no constitutionally protected liberty interest in obtaining discretionary relief from deportation.[24]
The Sixth Circuit stated undocumented immigrants do not have a constitutional right to be informed of their eligibility for discretionary relief.[25] And, in the context of deportation, no due process violation occurs when an attorney’s errors cause an alien to be denied discretionary relief.[26] Additionally, the majority of circuits have rejected the proposition that there is a constitutional right to be informed of eligibility for, or to be considered for, discretionary relief.[27] The Seventh Circuit reasoned that it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the Due Process Clause is designed to protect.[28]
The Minority Circuits
The Second Circuit in United States v. Copeland, held that a failure to inform undocumented immigrants of eligibility for waiver of deportation may be “fundamentally unfair within the meaning of Section 1326(d)” because of the serious consequences of removal and the “special responsibilities” of immigration judges as administrators in nonadversarial proceedings.[29] The Ninth Circuit in United States v. Ubaldo-Figueroa held that the immigration judge’s failure to inform undocumented immigrants of eligibility for relief from removal violated due process because regulation imposing duty to do so was mandatory.[30]
The Court of Appeals for the Ninth Circuit in United States v. Lopez-Velasquez, stated an immigration judge’s duty is limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the deportation hearing.[31] Additionally, the court stated immigration regulations require an immigration judge to inform an alien of apparent eligibility for relief.[32] “Apparent eligibility” means the record, fairly reviewed by an individual who is intimately familiar with the immigration laws, raises a reasonable possibility that the petitioner may be eligible for relief.[33] An immigration judge’s failure to advise an alien violates due process and can serve as the basis for a collateral attack to a deportation order where the order is used as the predicate for an illegal reentry charge.[34]
The Ninth Circuit also held the immigration judge is not required to advise an alien of possible relief when there is no factual basis for relief in the record.[35] Instead, the court held the immigration judge’s duty is to inform the alien of a reasonable possibility that the petitioner may be eligible for relief.[36] The Ninth Circuit has repeatedly held that an immigration judge’s failure to advise an alien violates due process and can serve as the basis for a collateral attack to a deportation order, where the order is used as the predicate for an illegal reentry charge.[37] In Lopez-Velasquez, the defendant failed to establish a due process violation because the immigration judge had no duty to inform him of relief for which he was not eligible and there were no other circumstances triggering such a duty.[38]
In defining the immigration judge’s duty to inform, the Ninth Circuit focused on whether the factual circumstances in the record before the immigration judge suggested that an alien could be eligible for relief.[39] On this basis, the court concluded that where the record demonstrates, or at least implies, a factual basis for relief, the immigration judge’s duty is triggered.[40] But, the immigration judge is not required to advise an alien of possible relief when there is no factual basis for relief in the record.[41]
Does the Statute Create Such a Right?
The Sixth Circuit held there is no right to be told of discretionary relief from removal because the statute’s plain language shows that relief under §1182(h) is discretionary.[42] Although the Sixth Circuit is correct in holding the relief is discretionary, it is incorrect in holding there is no such right. The federal statute, 8 U.S.C.S. § 1182(h), states that the Attorney General may, in his discretion, waive inadmissibility for certain aliens with criminal convictions if he is satisfied that denying the alien’s admission would result in extreme hardship to the alien’s spouse, child, or parent who is a United States citizen or lawful resident.[43] And if the Attorney General, in his discretion, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.[44]
However, the Sixth Circuit stated when the suspension of deportation is discretionary, it does not create a protectable liberty or property interest.[45] This view reaches the wrong result because the potential discretionary relief should be an interest protected by the Due Process Clause. Moreover, the Fifth Amendment’s guarantee of due process entitles aliens to a full and fair hearing, this right should extend to a requirement to inform these defendants of the possibility of discretionary relief. If the undocumented immigrants are not told of their potential eligibility for discretionary relief, then their hearing should not be considered full and fair. Establishing a due process right for undocumented immigrants to be told of their eligibility for discretionary relief from removal would not be contrary to the relief created by federal statute.
The defendant in Estrada should have been informed of his right to discretionary relief. Because Estrada’s attorney failed to advise him of the possibility of discretionary relief under federal immigration law, Estrada conceded removability. If Estrada had been properly informed of his right, it may have affected his decision to concede removability. Under the minority circuits’ view, Estrada would have been able to make educated decisions regarding his case. Under the Ninth Circuit’s holding, the immigration judge has a duty to inform immigrants of a reasonable possibility that they may be eligible for relief at the time of the deportation hearing. This requirement would not create a heavy burden because it only establishes a duty when there is a reasonable possibility for the relief. In Estrada’s case, if there was a factual basis for relief in the record, then he should have a right to be informed of it.
Following the Ninth Circuit’s requirement for immigration judges to inform aliens of a reasonable possibility that the alien is eligible for relief at the time of the deportation hearing would not create an issue. The Ninth Circuit simply requires immigration judges to inform immigrants of their potential relief when there is reasonable possibility that they are eligible. Both the Second and Ninth Circuits state that a failure to advise an immigrant of a right to seek discretionary relief may be prejudicial if it is fundamentally unfair. The fundamentally unfair requirement will minimize the possibility for immigrants to frivolously appeal if there were a failure to advise them of potential discretionary relief.
Conclusion
The majority of circuits are incorrect in holding that undocumented immigrants do not have a due process right to be told of discretionary relief from removal. Instead, the minority of circuits, the Second and Ninth, are correct in holding that such a right does exist. The Ninth Circuit has repeatedly held that an immigration judge’s failure to advise an immigrant of potential eligibility for discretionary relief violates due process. Undocumented immigrants should have a right to be told of their potential eligibility for discretionary relief.
[1] Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001).
[2] United States v. Estrada, 876 F.3d 885, 888 (6th Cir. 2017).
[3] See Bohometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005); Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002); United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002); United States v. Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006); Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001); United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004); Oguejiofor v. Attorney Gen. of the United States, 277 F.3d 1305, 1309 (11th Cir. 2002).
[4] See United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) and United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010).
[5] Copeland, 376 F.3d at 71.
[6] Lopez-Velasquez, 629 F.3d at 897.
[7] 8 U.S.C.S. §1182.
[8] 8 U.S.C.S. §1182(h).
[9] Estrada, 876 F.3d at 886.
[10] Id. at 888.
[11] Id.
[12] Id. at 889.
[13] Id. at 886.
[14] Id.
[15] Id.
[16] Id.
[17] 8 U.S.C.S. § 1326 (d).
[18] Estrada, 876 F.3d at 887.
[19] Id. at 886.
[20] Id. at 888.
[21] Id. at 889.
[22] Id. at 887.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 889.
[27] Santiago-Ochoa, 447 F.3d at 1020.
[28] Roque-Espinozai, 338 F.3d at 729-30.
[29] United States v. Copeland, 376 F.3d 71, 70-73 (2d Cir. 2004).
[30] United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049-50 (9th Cir. 2003).
[31] Lopez-Velasquez, 629 F.3d at 895.
[32] Id. at 896.
[33] Id.
[34] Id. at 897.
[35] Id. at 900.
[36] Id.
[37] Id. at 897.
[38] Id. at 899.
[39] Id. at 900.
[40] Id.
[41] Id.
[42] Estrada, 876 F.3d at 888.
[43] 8 U.S.C.S §1182(h)(1)(B)(2).
[44] Id. emphasis added.
[45] Estrada, 876 F.3d at 888.
