Ann Claire Williams
A judge should have stepped aside from a criminal case linked to a matter he handled as a government lawyer before taking the bench, a federal appeals court has held.
The 7th U.S. Circuit Court of Appeals last week threw out Jose Herrera-Valdez’s conviction on a count of illegally re-entering the United States after being deported to Mexico.
The court ordered that the case be reassigned for further proceedings to a jurist other than U.S. District Judge Samuel Der-Yeghiayan.
It has no doubt, the court wrote, “regarding Judge Der-Yeghiayan’s honesty and unwavering commitment to impartiality” in the case.
But Der-Yeghiayan was the Chicago district counsel for the Immigration and Naturalization Service when Herrera-Valdez was fighting the deportation order he later was charged with violating, the court wrote.
And under 28 U.S.C. Section 455(a), it held, Der-Yeghiayan was required to disqualify himself from the criminal case because his previous role as INS district counsel might cause a reasonable observer to question his impartiality.
Gerardo S. Gutierrez of the Law Office of Gerardo S. Gutierrez argued the case before the 7th Circuit on behalf of Herrera-Valdez. He could not be reached for comment.
Assistant U.S. Attorney Georgia N. Alexakis argued the case on behalf of the government.
Spokesman Joseph Fitzpatrick of the U.S. attorney’s office declined to comment because the case is pending.
Herrera-Valdez became a permanent resident of this country in 1990.
Two years later, he was indicted on drug charges. He pleaded guilty to one count and was sentenced to 70 months in prison.
After Herrera-Valdez served 61 months of the sentence, the INS took him into custody and moved to deport him based on his aggravated felony conviction.
An immigration judge denied Herrera-Valdez’s request for a waiver and the Board of Immigration Appeals rejected various challenges Herrera-Valdez raised to that decision.
Herrera-Valdez was not immediately deported and instead left for Mexico on his own three years later.
He maintains he did not realize at the time that he was the subject of a deportation order.
Herrera-Valdez returned to the United States in 2008, five years after he left, and was arrested on drug charges the following year.
He pleaded guilty to a single count in Illinois state court and was sentenced to six years in prison.
In 2012, a federal grand jury indicted Herrera-Valdez on the illegal re-entry charge.
After Der-Yeghiayan denied a motion to disqualify himself from the case, Herrera-Valdez pleaded guilty and was sentenced to 46 months in prison.
But he reserved the right to appeal the denial of the disqualification request.
A 7th Circuit panel on Friday issued the ruling in favor of Herrera-Valdez.
The panel noted that Der-Yeghiayan’s name appeared in two places — the title page and the signature block — on briefs the INS filed in the deportation case before the Board of Immigration Appeals.
The panel conceded Der-Yeghiayan did not necessarily write each pleading that included his name.
“But a disinterested observer — within or outside of the legal profession — could reasonably conclude that attaching his name to certain pleadings suggests that Judge Der-Yeghiayan reviewed and approved the pleadings before they were submitted to the immigration court,” Judge Ann Claire Williams wrote for the panel.
Under that circumstance, she continued, Der-Yeghiayan should have disqualified himself.
“We conclude that a reasonable, disinterested observer could assume bias from the fact that the judge presiding over the defendant’s prosecution for illegal re-entry was the same person who ran the office that pursued and succeeded in obtaining, the removal order that is the source of his current prosecution,” Williams wrote.
Joining the opinion were Judges Richard A. Posner and Diane S. Sykes. United States v. Jose Herrera-Valdez, No. 14-3534.