Whitney Z. Bernstein won a published decision in the Ninth Circuit reversing her client’s federal conviction for illegally re-entering the United States after deportation.  In the process, she established favorable case law for defending criminal immigration cases. 

Whitney’s client immigrated to the United States as a lawful permanent resident (“LPR”) when he was just one month old.  He lived legally in the United States for most of life until 2008 when he was stripped of his LPR status and ordered deported from the country by an Immigration Judge at a hearing where he was not even present.

Whitney argued that the 2008 removal order violated her client’s due process rights and that therefore a later “expedited” removal hearing in 2011 proceeding was also unlawful.  Because her client’s immigration hearings were fundamentally unfair, she argued, there was no lawful removal upon which the government could predicate an illegal re-entry conviction.

The Ninth Circuit agreed, explaining that “[a] person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he or she had no meaningful opportunity to contest.”  In new ground, the Court held that the defects in the 2008 removal proceeding had a domino effect of infecting the 2011 removal as well.  The Court reversed the federal conviction even though Whitney’s client may have been removable on another ground: “[E]ven if the government might have been able to remove him on other grounds through a formal removal proceeding,” the Court reasoned, “his removal on illegitimate grounds is enough to show prejudice.” 

Read the published opinion at United States v. Ochoa-Oregel, 898 F.3d 948 (9th Cir. 2018).