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United States v. Ramirez-Cortinas

United States Court of Appeals, Fifth Circuit

December 13, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant
v.
UVALDO RAMIREZ-CORTINAS, also known as Javier Martinez, also known as Ubaldo Cortinas Ramirez, also known as Uvaldo Cortinas Ramirez, Defendant-Appellee

          Appeal from the United States District Court for the Western District of Texas

          Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.

          STUART KYLE DUNCAN, CIRCUIT JUDGE.

         The United States appeals the district court's dismissal of a 2018 indictment charging Appellee Uvaldo Ramirez-Cortinas ("Ramirez") with illegal reentry in violation of 8 U.S.C. § 1326. We reverse and remand.

         I.

         A.

         Ramirez is a Mexican citizen who has illegally entered the United States at least six times since 1998. In 2003, he was convicted of a felony hit-and-run in Texas. In 2008, after being charged with sexually abusing his 10-year-old stepdaughter, he was released on bail but failed to appear. He was convicted of bail jumping in violation of Texas Penal Code § 38.10(f) and sentenced to seven years in prison.[1] After his release in 2012, Ramirez was issued a Notice to Appear for deportation proceedings. The notice declared him deportable for two reasons: being convicted of a "crime involving moral turpitude" and being "present in the United States without being admitted or paroled." See 8 U.S.C. §§ 1227(a)(1)(B), 1182(a)(2)(A)(i)(I), 1182(a)(6)(A)(i).

         Thus began a series of four hearings before two immigration judges. At the first hearing, in October 2012, Ramirez was given two months to find counsel. At the second hearing, without counsel, [2] Ramirez admitted to the allegations in the Notice to Appear, and the IJ found him deportable. Ramirez asked whether there was "some type of relief" available. The IJ gave him an asylum application-because Ramirez said he was uncertain whether he would be in danger in Mexico-and continued the proceedings. At the third hearing, the IJ scheduled yet another hearing to consider Ramirez's asylum request.

         The final hearing was in March 2013. Ramirez informed the IJ he did not "have all the documents," suggested he might withdraw his asylum request, and asked if he could instead have voluntary departure.[3] The IJ stated he would not grant voluntary departure, and later told Ramirez his bail jumping conviction was "an aggravated felony" that made him ineligible for voluntary departure. In light of this, the IJ asked Ramirez if he wanted "to have [the] hearing on [his] application for asylum." The IJ explained that, otherwise, he would order Ramirez deported. Ramirez sought more time, but the IJ denied that request. Later in the hearing, when Ramirez again suggested he wanted to withdraw the asylum request, the IJ declared he was going to order Ramirez deported. The IJ then asked if Ramirez wanted to appeal that decision. When Ramirez answered affirmatively, the IJ said, "Then, sir, we're going to have a hearing[.]"

         The IJ proceeded to question Ramirez about his "very detailed" asylum application. Specifically, the IJ asked Ramirez if he was "afraid to return to Mexico." Ramirez answered, "I can't say yes or no." When asked whether anything violent had happened to him in Mexico, Ramirez answered "No." Ramirez also stated that nobody had threatened to harm him or his parents in Mexico. Ramirez testified only that he was forced to pay bribes to government officials, and that someone stole his family's cattle. The IJ subsequently asked Ramirez whether somebody had beaten him up. Ramirez said it was a group called "Preventiva, the police," but then explained he did not "think they . . . still exist." He also testified he had no problems because of his father's union activity, although his father may have had some problems when Ramirez "was a kid." The IJ then asked whether Ramirez or his family "had any problems in Mexico because of their religion," which was Jehovah's Witness. Ramirez responded, "No, not that I know of." The IJ asked Ramirez one last time, "[W]hat do you think would happen to you if you return to Mexico?" Ramirez responded, "I don't know." Eventually, the IJ informed Ramirez: "[Y]our feelings about the inadequacy of your application for asylum, the sufficiency of your application, were good because based on what you told me, you don't have a claim to asylum or withholding of removal."

         Ultimately, the IJ decided that Ramirez's bail jumping conviction was an aggravated felony. See generally 8 U.S.C. § 1101(a)(43) (defining "aggravated felony"). That rendered Ramirez ineligible for asylum and "statutorily ineligible for withholding of removal under the Immigration and Nationality Act and under the United Nations Convention against Torture."[4] This led the IJ to conclude that Ramirez's "only form of relief . . . would be deferral of removal based upon his belief that he will be tortured by the government officials in Mexico" or that those officials would knowingly allow his torture. But the IJ found Ramirez had failed to establish any such threat. Similarly, the IJ explained that "even if [Ramirez] was eligible for asylum or withholding, he would still be found to have failed to establish his burden because he does not establish past persecution or future persecution, and a reasonable person in his circumstance would not fear persecution or torture." Finally, the IJ explained that, even "had [Ramirez] been currently eligible for voluntary departure, [the IJ] would have denied voluntary departure as a matter of discretion because of [Ramirez's] criminal record, which is a serious one involving two felony offenses."

         Ramirez appealed to the Board of Immigration Appeals ("BIA"), arguing the IJ erred in finding he had been convicted of an aggravated felony. The BIA dismissed Ramirez's appeal in a written decision. The BIA agreed with the IJ that Ramirez's bail jumping conviction was "both an aggravated felony and a particularly serious crime," rendering him ineligible for asylum, withholding of removal, and voluntary departure. The BIA incorrectly stated, however, that Ramirez did not dispute on appeal that he had been convicted of "an offense that is an aggravated felony and also a particularly serious crime." Finally, the BIA agreed with the IJ that Ramirez failed to show he would likely be tortured by, or at the behest of, Mexican officials.

         The BIA denied relief on July 24, 2013, and mailed its decision the same day. Ramirez was deported to Mexico a week later, on August 2, 2013. For reasons unexplained in the record, the BIA's decision was not received at the immigration court adjacent to the facility where Ramirez had been detained until ...


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