Tomas Alejandro Mendez-Alcaraz v. Alberto R. Gonzales, Attorney General

The BIA correctly dismissed as untimely Mendez-Alearaz’s motion to reconsider.

Facts

Mendez-Alcaraz, an alien with lawful permanent residence status, pleaded guilty in 1996 to sexual abuse of a minor. 1 He was sentenced to 75 months in prison and 120 months of “post-prison supervision.” He spent three years in a juvenile detention facility and another three in a state prison. When his imprisonment for sexual abuse of a minor ended, the INS took Mendez-Alcaraz into its custody and sought removal based on the conviction. 2 Mendez-Alcaraz conceded removability, designated Mexico as the country to which he would be removed, and stated that he wished to apply for waiver of deportation. He was 16 when he committed the felony, 23 when he conceded removability and waived appeal. There is, and was at the time of Mendez-Alearaz’s guilty plea to sexual abuse of a minor, no discretionary relief from removal available to an aggravated felon who had served a prison term of five years or more.

At the time of his removability hearing, we had not yet held that sexual abuse of a minor was an “aggravated felony” for purposes of this statute. (The statute was amended expressly to make it one,…

dissenting:

I.

The government removed Tomas Mendez-Alcaraz (“Mendez”) from this country based on a criminal conviction that violated his procedural due process rights under the Fourteenth Amendment to the U.S. Constitution. Because such an unconscionable result cannot be affirmed, I dissent.

II.

Shortly after his sixteenth birthday, petitioner Mendez, a lawful permanent resident of the United States, was subjected to an unlawful application of state law that cost him not only six years of his freedom, but also his ability to stay in the United States.

Although the laws of the United States and the state of Oregon, where Mendez resided, categorized him as too young to vote in elections, purchase cigarettes, consent to a sexual act, or possess alcohol, 1 Oregon’s Measure 11 law required, without any legal process, that he be treated as an adult in the criminal justice system, subject to the mandatory minimum sentencing guidelines for sex criminals. Unlike other *846 juveniles charged with crimes in Oregon, Mendez had no hearing to determine whether he should be tried as an adult.

The legal consequences of Mendez’s delinquency were so drastic that he had a right to a hearing to…

464 F.3d 842 Tomas Alejandro MENDEZ-ALCARAZ, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 04-74268. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 14, 2005. Filed October 2, 2006. ** Philip James Smith (argued), Nicole Hope Nelson (briefed), Hecht & Smith, LLP, Portland, OR, for the petitioner. Janice K. Redfern (argued), John C. Cunningham (briefed), Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ahg-nww-toy. Before: FERGUSON, KLEINFELD, and GRABER, Circuit Judges. KLEINFELD, Circuit Judge: 1 The BIA correctly dismissed as untimely Mendez-Alcaraz's motion to reconsider. Facts 2 Mendez-Alcaraz, an alien with lawful permanent residence status, pleaded guilty in 1996 to sexual abuse of a minor. 1 He was sentenced to 75 months in prison and 120 months of "post-prison supervision." He spent three years in a juvenile detention facility and another three in a state prison. When his imprisonment for sexual abuse of a minor ended, the INS took Mendez-Alcaraz into its custody and sought removal…