First, in United States v. Valdivias-Soto, --- F.4th ---, No. 20-10415 (9th Cir. 2024), the Court affirmed the district court’s judgment dismissing an indictment charging Valdivias with illegally reentering the United States after he had previously been removed.
The decision largely turned on the fact that, during the immigration proceedings, the Spanish-language interpreter made a mistake in explaining the right to counsel.
The Court held that Valdivias satisfied the requirement in 8 U.S.C. § 1326(d)(3) that the entry of the order was fundamentally unfair. Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for “hire” in describing that right during the removal hearing, incorrectly suggesting that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. As a result of the erroneous translation, Valdivias did not enter a knowing and voluntary waiver of the right to counsel. The translation errors at his removal hearing also rendered his waiver of the right to appeal invalid, and the immigration judge’s acceptance of his waiver therefore violated Valdivias’s due process rights.
The Court further held that notwithstanding Valdivias’s failure to appeal the removal order to the BIA, he satisfied the requirement in 8 U.S.C. § 1326(d)(1) that the alien exhaust any administrative remedies that may have been available. The erroneous translations at Valdivias’s removal hearing rendered administrative review of his removal order unavailable. The Court held that because Valdivias’s waiver of his right to appeal was invalid, he satisfied the requirement in 8 U.S.C. § 1326(d)(2) that he was improperly deprived of the opportunity for judicial review.
Next, in United States v. Osorio-Arellanes, --- F.4th ---, No. 20-10003 (9th Cir. 2024), the Court reversed the district court’s order reconsidering its suppression of a confession by Osorio, vacated his convictions and sentences, and remanded for further proceedings.
Osorio participated in a gunfight with U.S. Customs and Border Patrol agents in Arizona. Osorio fled back into Mexico, and one of the agents died from wounds he sustained in the confrontation.
Nearly seven years later, Osorio was arrested by Mexican authorities and interrogated by U.S. officials in a Mexico City prison. During this interrogation, he confessed essential elements of the Government’s case on the advice of a Mexican attorney.
On direct appeal, Osorio claimed he is entitled to a new trial because his confession was taken and admitted in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to effective assistance of counsel.
The Court exercised its discretion to hear the Sixth Amendment claim on direct appeal because: (1) the record was sufficiently developed in that there is no ambiguity as to what Pimentel said to Osorio, and (2) the developed record showed that Pimentel’s mid-interrogation advice—that Osorio would not be affected if he confessed information about his intent toward drug smugglers because robbing drug smugglers is not a crime—was obviously inadequate and legally unjustifiable.
Addressing the substance of the claim under the Strickland framework, the Court held (1) Pimentel’s counsel was deficient; and (2) Pimentel’s advice was prejudicial because there is a reasonable probability that, absent Pimentel’s advice, Osorio would not have been convicted of any of the charges.
Because Osario established his Sixth Amendment claim, the Court did not need to reach his Fifth Amendment claim. The Court rejected the Government’s argument that the absence of a Fifth Amendment Miranda violation would bar Osario’s Sixth Amendment claim.
This case has lots of good language for IAC claims. And fun fact, former AUSA, now DJ, Todd Robinson makes an appearance in the opinion.
