Two tough decisions today.
First, in United States v. Peralta-Sanchez, --- F.3d ---, Case No. 14-50393 (9th Cir. 2017), the majority held that aliens subject expedited removal proceedings under 8 U.S.C. § 1225 have no Fifth
Amendment due process right to hire counsel. This is true, even if the person is not caught at the border, but inside the country where due process protections are greater. The Court also held there is no statutory right to counsel in such proceedings.
Thus, as the dissent noted, "[t]he expedited removal process begins and ends
with a Customs and Border Protection (CBP) officer."
Based on this holding, the majority rejected the defendant's 1326(d) claim that his removal was fundamentally unfair because he was denied the right to hire counsel. It also rejected his claim based on the failure to advise him of the right to seek withdrawal of his application for admission, because he could not show prejudice.
Finally, I think it is worth sharing the dissent's final paragraph:
The expedited removal system is flawed; it does not account for the realities of immigration and the strong ties to this country held by many noncitizens. The system is also cruel; it gambles with the lives of hundreds of thousands of people per year by offering few procedural safeguards. We can, and should, do better. I would hold that there is a due process right to counsel in expedited removal proceedings.
Second, in United States v. Loucious, --- F.3d ---, Case No. 16-10121 (9th Cir. 2017), the Court reversed the district court's grant of the defendant's suppression motion. It held: "The Miranda warnings given to [the defendant] adequately
conveyed that he had the right to consult with an attorney
before questioning even though they did not explicitly inform
him of that right. This right was reasonably to be inferred."
As to the facts, before the start of a custodial interrogation, the defendant received warnings informing him he had the
right to remain silent; he had the right to the presence of an
attorney during questioning; and that if he could not afford an
attorney, an attorney would be appointed before questioning. The defendant successfully moved to suppress the statements he made during
the custodial interrogation, arguing that the Miranda
warnings he received were constitutionally deficient because
they did not tell him of his right to consult with an attorney
before questioning.
As noted, the Ninth Circuit reversed because "Miranda warnings need not follow a precise
formulation, and here the warnings reasonably conveyed that
[the defendant] had the right to consult an attorney before
questioning."
