In United States v. Rivera-Valdes, --- F.4th ---, No. 21-30177 (9th Cir. 2024), a heavily fractured Court affirmed the district court’s denial of Leopoldo Rivera-Valdes’s motion to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326.
Rivera-Valdes, who failed to appear at his 1994 deportation proceeding, argued that immigration authorities violated his due process rights by ordering him deported in absentia despite the notice of the deportation hearing being returned as undeliverable or unclaimed.
There is a per curiam majority opinion with each judge in the majority writing a separate concurrence. There is also a dissent. So, one case with four opinions.
In any event, the per curium majority held that the deportation in absentia did not violate due process. Regardless of whether Rivera-Valdes actually received the notice, the government followed its statutory obligations and reasonably attempted to inform him of the hearing by mailing notice to his last (and only) provided address. The majority rejected Rivera-Valdes’s argument that additional steps to notify him of his deportation hearing were required under Jones v. Flowers, 547 U.S. 220 (2006).
Of note, there is some good language we can use to get around prior opinions that touch on, but do not squarely address, a legal issue:
While we must, of course, follow the binding precedent of prior panels, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc), this applies only when a prior panel “squarely addresses” the issue, United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (simplified). “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” United States v. Ped, 943 F.3d 427, 434 (9th Cir. 2019) (simplified). Thus, when a “prior case does not raise or consider the implications of a legal argument, it does not constrain” a new panel’s analysis. Kirilyuk, 29 F.4th at 1134 (simplified).
