Mendez-Alcaraz v. Gonzales ( 2006 )

  •                      FOR PUBLICATION
    TOMAS ALEJANDRO MENDEZ-                     
                                                        No. 04-74268
                  v.                                    Agency No.
    ALBERTO R. GONZALES,* Attorney
              On Petition for Review of an Order of the
                   Board of Immigration Appeals
                      Argued and Submitted
                November 14, 2005—Portland, Oregon
                           Filed October 2, 2006
        Before: Warren J. Ferguson, Andrew J. Kleinfeld, and
                 Susan P. Graber, Circuit Judges.
                       Opinion by Judge Kleinfeld
      *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
    as Attorney General of the United States, pursuant to Fed. R. App. P.
      **We publish pursuant to Circuit Rule 36-2(g).
                   MENDEZ-ALCARAZ v. GONZALES           17177
    Philip James Smith (argued), Nicole Hope Nelson (briefed),
    Hecht & Smith, LLP, Portland, Oregon, for the petitioner.
    17178             MENDEZ-ALCARAZ v. GONZALES
    Janice K. Redfern (argued), John C. Cunningham (briefed),
    Office of Immigration Litigation, U. S. Department of Justice,
    Washington, D.C., for the respondent.
    KLEINFELD, Circuit Judge:
      The BIA correctly dismissed as untimely Mendez-
    Alcaraz’s motion to reconsider.
       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, des-
    ignated 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 con-
    ceded removability and waived appeal. There is, and was at
    the time of Mendez-Alcaraz’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.3
         Or. Rev. Stat. § 163.427.
         8 U.S.C. § 1227(a)(2)(A)(iii).
         Pub. L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C.
    § 1182(c)); INS v. St. Cyr, 
    533 U.S. 289
    , 297 (2001); United States v.
    305 F.3d 839
    , 850 (9th Cir. 2002).
                       MENDEZ-ALCARAZ v. GONZALES                     17179
       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, but the effective date of the amendment was
    after Mendez-Alcaraz’s guilty plea.4) The immigration judge
    (“IJ”) held that the crime was an aggravated felony, but rec-
    ognized that it was an arguable issue, saying “I could be
    wrong on this. There is a significant legal issue. Do you
    understand that?,” to which Mendez-Alcaraz responded “yes.”
       The IJ ordered Mendez-Alcaraz removed to Mexico.
    Mendez-Alcaraz expressly waived appeal after conferring
    with counsel. He moved to Mexico in January 2003, in com-
    pliance with the order of removal. Mendez-Alcaraz’s brief
    alleges that he has neither reentered nor attempted to reenter
    the United States since that time.
       Fourteen months after the hearing and removal order (and
    waiver of appeal), Mendez-Alcaraz moved for reconsidera-
    tion, on the theory that when he pleaded guilty to sexual abuse
    of a minor, it was not an aggravated felony. The IJ denied the
    motion because “[t]he same arguments were raised at trial.
    Respondent could have reserved and filed appeal. There is
    nothing ‘new’ or ‘different’ now.” Mendez-Alcaraz appealed
    the denial of reconsideration to the BIA. It dismissed, agree-
    ing with the IJ’s decision, and adding several alternative
    grounds: (1) the IJ and BIA had no jurisdiction to grant recon-
    sideration because Mendez-Alcaraz had been removed to Mex-
    ico;5 (2) the motion was untimely, having been filed long after
    the 30 day time limit;6 and (3) the crime was retroactively
         8 U.S.C. § 1101(a)(43)(A).
         See 8 C.F.R. § 1003.2(d) (“A motion to reopen or a motion to recon-
    sider shall not be made by or on behalf of a person who is the subject of
    exclusion, deportation, or removal proceedings subsequent to his or her
    departure from the United States.”); 8 C.F.R. § 1003.23(b)(1) (same).
         8 C.F.R. § 1003.23(b)(1).
    17180               MENDEZ-ALCARAZ v. GONZALES
    reclassified as an aggravated felony and he served five years
    or more.7 Mendez-Alacaraz petitions for review.
       We must first decide whether Mendez-Alcaraz’s removal to
    Mexico deprives us of jurisdiction to decide this petition for
    review from the denial of his motion for reconsideration. The
    answer would have been that it did, before the “transitional
    rules” period8 under IIRIRA ended and the “permanent rules”
    period9 began, on April 1, 1997.10 The IIRIRA “permanent
    rules”11 do not include the old jurisdiction-stripping provision
    for excluded, deported, or removed aliens.12 “We now may
    entertain a petition after the alien has departed.”13
      The BIA based its dismissal of Mendez-Alcaraz’s appeal
         See Aragon-Ayon v. INS, 
    206 F.3d 847
    , 853 (9th Cir. 2000) (“Congress
    intended the 1996 amendments to make the aggravated felony definition
    apply retroactively to all defined offenses whenever committed, and to
    make aliens so convicted eligible for deportation notwithstanding the pas-
    sage of time between the crime and the removal order.”).
         8 U.S.C. § 1105a(c) (1994), as modified by IIRIRA § 309(c), Pub. L.
    No. 104-208, 110 Stat. 3009; see also Contreras-Aragon v. INS, 
    852 F.2d 1088
    , 1091 n. 1 (9th Cir. 1988), superseded by statute, Pub. L. No. 104-
    208, 110 Stat. 3009, as recognized in Zazueta-Carrillo v. Ashcroft, 
    322 F.3d 1166
    , 1170-71 (9th Cir. 2003).
         8 U.S.C. § 1252(d).
          8 U.S.C. § 1105a(c)(1994), as modified by IIRIRA § 309(c), Pub. L.
    No. 104-208, 110 Stat. 3009 (providing for the effective date of the per-
    manent rules).
          8 U.S.C. § 1252(d).
          Zazueta-Carrillo, 322 F.3d at 1171.
          Id. Accord Moore v. Ashcroft, 
    251 F.3d 919
    , 922 (11th Cir. 2001)
    (holding that, after IIRIRA, a petitioner’s removal from the United States
    does not render the case moot); Tapia Garcia v. INS, 
    237 F.3d 1216
    , 1217
    (10th Cir. 2001) (holding that “deportation no longer forecloses judicial
                         MENDEZ-ALCARAZ v. GONZALES                       17181
    on three independent grounds. Because untimeliness is dispo-
    sitive, we need not reach the other issues.14
       [1] Though Mendez-Alcaraz missed the 30 day deadline for
    filing his motion, he argues that the deadline should be equita-
    bly tolled. The deadline can be equitably tolled for various
    reasons, such as that “despite all due diligence, the party
    invoking equitable tolling is unable to obtain vital information
    bearing on the existence of the claim.”15 Tolling requires that
    “his or her ignorance of the limitations period was caused by
    circumstances beyond the party’s control, and that these cir-
    cumstances go beyond a garden variety claim of excusable
       Mendez-Alcaraz argues that the IJ deprived him of the
    knowledge he needed by telling him that his crime was indeed
    an aggravated felony, and “[l]iving in Mexico, Mr. Mendez
    was unaware” of two decisions that would have made aggra-
    vated felony classification arguable, and “through reasonable
    diligence could not have discovered” these cases.
          The dissent raises issues that Petitioner did not, and that have nothing
    to do with the timeliness issue upon which we have decided this case.
    Generally, we need not and do not consider issues that are neither pre-
    served nor raised on appeal or by petition for review. United States v.
    45 F.3d 1286
    , 1300 (9th Cir. 1995). Even if the issues were pre-
    served and raised, they would not avail Petitioner because a criminal con-
    viction cannot be attacked collaterally in a deportation proceeding. Ortega
    de Robles v. INS, 
    58 F.3d 1355
    , 1358 (9th Cir. 1995). Finally, even if the
    issues were preserved and raised and could be reached, the dissent’s sug-
    gestion that the unconstitutionality of Measure 11 is “easily extrapolated”
    from In re Gault, 
    387 U.S. 1
     (1967) and Kent v. United States, 
    383 U.S. 541
     (1966) is unsupported. Alvarado v. Hill, 
    252 F.3d 1066
    , 1068-69 (9th
    Cir. 2001), held that Measure 11 is not contrary to clearly established
    Supreme Court precedent, based on those very two cases. Id.
          Socop-Gonzalez v. INS, 
    272 F.3d 1176
    , 1193 (9th Cir. 2001) (en banc)
    (quotation marks and brackets omitted).
          Id. at 1193 (citation and internal quotations marks omitted).
    17182               MENDEZ-ALCARAZ v. GONZALES
       [2] We cannot accept this argument. There is no claim that
    the internet and law libraries do not exist in Mexico. More-
    over, the IJ expressly told Mendez-Alcaraz that he “could be
    wrong on this. There is a significant legal issue,” before ask-
    ing if Mendez-Alcaraz wanted to appeal. We further note that
    Mendez-Alcaraz had counsel then and now.
    FERGUSON, Circuit Judge, dissenting:
       The government removed Tomas Mendez-Alcaraz
    (“Mendez”) from this country based on a criminal conviction
    that violated his procedural due process rights under the Four-
    teenth Amendment to the U.S. Constitution. Because such an
    unconscionable result cannot be affirmed, I dissent.
       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 Ore-
    gon, 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, with-
       Or. Rev. Stat. § 247.015 (2006) (must be over eighteen to register to
    vote); Or. Rev. Stat. § 167.401 (2006) (illegal for minor under eighteen to
    purchase or possess tobacco); Or. Rev. Stat. § 163.315(a) (2006) (person
    under eighteen incapable of consenting to a sexual act); Or. Rev. Stat.
    § 471.430 (2006) (illegal for person under twenty-one to purchase or pos-
    sess alcohol).
                       MENDEZ-ALCARAZ v. GONZALES                   17183
    out 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 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 determine whether
    he should have been tried as an adult. As the Supreme Court
    has noted, “[T]here is no place in our system of law for reach-
    ing a result of such tremendous consequences without
    ceremony—without hearing.” Kent v. United States, 
    383 U.S. 541
    , 554 (1966).
       On the afternoon of July 20, 1995, Aynna Glover and Jenny
    Franklin, ages eleven and twelve, respectively, stopped at
    Mendez’s home on their way to a swimming pool. They had
    met Mendez approximately one week earlier and evidently
    were at the residence to meet some other friends before going
    to the pool.
      Shortly after arriving at the Mendez residence, Franklin
    went with Mendez’s brother into another room, leaving
    Glover and Mendez alone together in the living room. They
    began playfully wrestling and pinching each other, which
    eventually lead to kissing.
       There is some dispute as to what happened next. Glover
    contends that Mendez held her down and forcibly inserted his
    finger into her vagina. Mendez admits to digitally penetrating
    Glover, but contends that the act was consensual2 and that he
    asked Glover first. Franklin told the investigating detective
    that she had peeked in on Glover and Mendez and that “they
       Of course, as a matter of law, Glover could not have consented since
    she was only eleven years old. Or. Rev. Stat. § 163.315(a) (2006).
    17184                MENDEZ-ALCARAZ v. GONZALES
    were both on the couch lying down making out.” She also
    said she did not hear Glover call for help. Neither did Glover
    seem upset when she told Franklin about the incident after
    leaving the house. Glover’s father later told an investigating
    detective that he did not notice any emotional or psychologi-
    cal damage to his daughter. Mendez claimed he did not know
    Glover was only eleven.3
       Over one month later, Glover reported the incident to the
    police after she learned that her parents had found out about
    it. Mendez was apprehended and charged with first degree
    unlawful sexual penetration, first degree sexual abuse, and
    first degree attempted rape.4
       Pursuant to Oregon’s Measure 11 law, sixteen year-old
    Mendez was automatically processed in the adult criminal jus-
    tice system without any hearing regarding the suitability of
    that forum. He pleaded guilty to one count of sexual abuse5
    in exchange for the dismissal of the first and third charges.
         None of this should be read as minimizing Mendez’s illegal and irre-
    sponsible conduct. There is no excuse for a 16 year old boy to engage in
    sexual activity with an 11 year old girl, regardless of the circumstances.
    Mendez himself recognizes as much. In his psychological evaluation,
    Mendez showed “no indications of denial or minimization of the serious-
    ness of his conduct. He acknowledge[d] its wrongfulness and expresse[d]
    a willingness to participate in appropriate treatment.” These additional
    facts, however, do highlight the importance of individualized hearings that
    consider all factors and effects of a juvenile’s conduct prior to transferring
    him or her to adult court.
         Or. Rev. Stat. § 163.411 (2006); Or. Rev. Stat. § 163.427 (2006); Or.
    Rev. Stat. § 163.375 (2006).
         Or. Rev. Stat. § 163.427 (2006) reads, in relevant part:
        “(1) A person commits the crime of sexual abuse in the first
        degree when that person:
        “(a) Subjects another person to sexual contact and: “(A) The vic-
        tim is less than 14 years of age;
        “(2) Sexual abuse in the first degree is a Class B felony.”
                          MENDEZ-ALCARAZ v. GONZALES                        17185
       Using the findings of the staff psychologist who evaluated
    Mendez, a county pre-sentence investigation unit and diag-
    nostic center “unanimously agreed [that] if this were not a
    Ballot Measure 11 case, [it] would in fact recommend a pro-
    bationary sentence” with out-patient treatment in the commu-
    nity. However, because it was a Measure 11 case, the judge
    sentenced Mendez to the mandatory minimum under Measure
    11 for first degree sexual abuse, 75 months imprisonment, as
    well as 120 months of post-prison supervision. Mendez
    served three years in a juvenile detention facility and three
    years in a state prison for adults. He was released on May 22,
    2002, a few weeks before his twenty-third birthday.
       Seven months after Mendez’s release, the Immigration and
    Naturalization Service (now Immigration and Customs
    Enforcement) took Mendez, a legal permanent resident of the
    United States, into custody and sought to have him removed
    to Mexico based on his sexual abuse conviction. Mendez had
    no other criminal record.
      After a removal hearing before an immigration judge,
    Mendez was ordered out of the country. He moved with his
    wife to Baja California, where they currently reside.
       In 1994, Oregon voters approved Measure 11 by a margin
    of 65% to 35%. The measure contains two important provi-
    sions.6 First, it requires that juveniles over the age of fourteen
        As codified at Or. Rev. Stat. § 137.707 (2006), Measure 11 reads, in
    relevant part:
            “(1)(a) Notwithstanding any other provision of law, when a
          person charged with . . . an offense listed in subsection (4) of this
          section is 15, 16 or 17 years of age at the time the offense is com-
          mitted, and the offense is committed on or after April 1, 1995, the
          person shall be prosecuted as an adult in criminal court.
    17186                 MENDEZ-ALCARAZ v. GONZALES
    charged with enumerated offenses be prosecuted as adults. Or.
    Rev. Stat. § 137.707(1)(a). Second, it provides for mandatory
    minimum sentences with no judicial discretion for juveniles
    convicted of those enumerated offenses. Or. Rev. Stat.
    § 137.707(2). The measure, including subsequent legislative
    amendments,7 is codified at Or. Rev. Stat. § 137.700 (2006),
    Or. Rev. Stat. § 137.707 (2006), and Or. Rev. Stat. § 137.712
    (2006). As of August 2006, the Oregon Department of Cor-
    rections reported 662 offenders with Measure 11 convictions
    who were under age eighteen on the dates of their crimes.8
        “(2) When a person charged under this section is convicted of an
        offense listed in subsection (4) of this section, the court shall
        impose at least the presumptive term of imprisonment provided
        for the offense in subsection (4) of this section. . . .
             “. . . (4) . . .
               “(p) Sexual abuse in the first degree, as defined in ORS
               163.427 * * * 75 months[.]”
         Oregon House Bill 2379, which is now law, gave judges the power to
    downwardly depart from the mandatory minimums for certain crimes,
    including first degree sexual abuse, under certain circumstances. Or. Rev.
    Stat. § 137.712 (2006).
         Or. Dep’t of Corrections, Offenders with Measure 11 Convictions as of
    August 1, 2006, Under Age 18 on Date of Crime (2006), available at This document
    also demonstrates a troubling racial disparity when one compares the sta-
    tistics for minority offenders to their representations in the general popula-
    tion of Oregon. Although African-Americans make up only 1.8% of the
    Oregon population, they make up 12.4% of incarcerated Measure 11 juve-
    nile offenders. “Hispanics” make up 9.5% of Oregon’s population, but are
    13.1% of Measure 11 juvenile offenders. Native Americans make up 1.4%
    of Oregon’s population, but are 2.7% of Measure 11 juvenile offenders.
    U.S. Census Bureau, Oregon QuickFacts (2006), http://quickfacts. Even more severe racial disparities are
    not uncommon for juveniles tried as adults, even with non-discretionary
    or automatic transfer laws. Michael Bochenek, Human Rights Watch, No
    Minor Matter: Children in Maryland’s Jails (1999), available at http:// (follow “The Disproportionate
    Impact on Minority Youth” hyperlink); Patricia Allard & Malcolm Young,
                         MENDEZ-ALCARAZ v. GONZALES                        17187
       Measure 11 arose as part of a national trend in the 1990s
    towards targeting juvenile offenders, processing them as
    adults, and increasing the punishments available for them;
    “Adult time for adult crime,” went the slogan. In the last fif-
    teen years, almost every state in the country has made it easier
    to try children under the age of eighteen in adult criminal courts.9
    This trend reached a fevered pitch in the mid-1990s when our
    nation’s children were labeled “super-predators” by academ-
    ics,10 the news media,11 and even members of Congress,12
    The Sentencing Project, Prosecuting Juveniles in Adult Court: Perspec-
    tives for Policymakers and Practitioners 9 (2002) (“Statistics like these
    move us past the time when reasonable people can believe that policing
    and prosecution practices leading to transfer are even close to the same for
    children of color as they are for white kids.”).
         Task Force on Youth in the Criminal Justice System, American Bar
    Association, Youth in the Criminal Justice System 1 (2001) (“Since 1991
    almost every state has widened the scope of persons under eighteen who,
    after being charged with a crime, are processed by adult criminal courts
    rather than by juvenile or family courts.”) (hereinafter Youth in the Crimi-
    nal Justice System); see generally, Mike A. Males, The Scapegoat Gener-
    ation: America’s War on Adolescents (1996).
          See, e.g., John J. Dilulio, Jr., The Coming of the Super-Predators,
    Weekly Standard, November 27, 1995, at 53 (“On the horizon . . . are tens
    of thousands of severely morally impoverished juvenile super-predators.
    They are perfectly capable of committing the most heinous acts of physi-
    cal violence for the most trivial reasons . . . [F]or as long as their youthful
    energies hold out, they will do what comes ‘naturally:’ murder, rape, rob,
    assault, burglarize, deal deadly drugs, and get high.”).
          See, e.g., Peter Annin, Superpredators Arrive: Should We Cage the
    New Breed of Vicious Kids?, Newsweek, January 22, 1996, at 57. See also
    Jerome Miller, Riding the Crime Wave: Why Words We Use Matter So
    Much, Nieman Reports: The Nieman Foundation for Journalism at Har-
    vard University, Winter 1998, at 47 (analyzing the effects of “super-
    predator” rhetoric in the media).
          See, e.g., House Committee on Economic and Educational Opportuni-
    ties, Subcommittee on Early Childhood, Youth and Families, Hearings on
    the Juvenile Justice and Delinquency Prevention Act, Serial No. 104-68,
    104th Cong., 2d sess., 1996, at 90 (statement of Rep. Bill McCollum,
    chairman, Subcommittee on Crime, House Judiciary Committee) (“Brace
    yourself for the coming generation of ‘super-predators.’ ”).
    17188               MENDEZ-ALCARAZ v. GONZALES
    despite the fact that statistics failed to support the claim.13 Just
    last year, the U.S. Supreme Court acknowledged a “particular
    trend in recent years toward cracking down on juvenile
    crime.” Roper v. Simmons, 
    543 U.S. 551
    , 556 (2005).
       This trend represents a sharp departure from the traditional
    aim of the juvenile justice system, which, since its introduc-
    tion in Illinois in 1899, has sought to discard the “rigidities,
    technicalities, and harshness” of the criminal justice system
    and replace it with treatment and rehabilitation. In re Gault,
    387 U.S. 1
    , 15-16 (1967). The juvenile justice system was
    “rooted in social welfare philosophy rather than in the corpus
    juris.” Kent, 383 U.S. at 554-55. Juvenile courts have histori-
    cally centered on guiding and rehabilitating children for the
    betterment of themselves and society as a whole. Id.
       Since at least 1924, the Oregon Supreme Court has noted
    that “the purpose of the children’s court is not to convict or
    punish, but to protect.” Hills v. Pierce, 
    231 P. 652
    , 654 (Or.
    1924). Oregon courts have recognized juvenile procedure as
    “equitable in that the remedies may be flexible and based
    upon ‘conscience’ and judgment, rather than upon more or
    less rigid rules of law.” State ex rel. Juvenile Dep’t v. Reyn-
    857 P.2d 842
    , 848 n.11 (Or. 1993) (quoting State v. Gul-
    416 P.2d 311
    , 312 (Or. 1966)). The juvenile justice
    system has as its “primary objective[s]” the avoidance of “the
    stigma associated with a criminal conviction” and the empha-
    sis of “rehabilitative efforts.” State ex rel. Juvenile Dep’t v.
    84 P.3d 190
    , 195 (Or. Ct. App. 2004); In re Williams,
    640 P.2d 675
    , 679 (Or. Ct. App. 1982) (“It is significant that
    the juvenile court system is generally considered to be more
    favorable to a child than is the adult court system, because in
    the former the welfare of the child is the highest concern.”).
         See, e.g., Franklin E. Zimring, The Youth Violence Epidemic: Myth or
    Reality?, 33 Wake Forest L. Rev. 727 (1998) (analyzing juvenile crime
    statistics and concluding “there never was a general pattern of increasing
    adolescent violence in the 1980s and 1990s.”).
                       MENDEZ-ALCARAZ v. GONZALES                   17189
       The strong moral, legal, and policy reasons for distinguish-
    ing between juvenile delinquents and adult criminals are “too
    obvious to require extended explanation.” Thompson v. Okla-
    487 U.S. 815
    , 835 (1988). The Supreme Court has
    highlighted three such reasons. Roper, 543 U.S. at 569-70.
    First, juveniles lack the maturity and developed sense of
    responsibility we attribute to adults. Id. at 569. Second, they
    are more susceptible to negative influences and peer pressure
    than are adults. Id. Third, their personality traits are more
    transitory and less fixed, indicating a higher likelihood of
    rehabilitation of juveniles than of adults. Id. at 570. As the
    Court noted, “[f]rom a moral standpoint it would be mis-
    guided to equate the failings of a minor with those of an adult,
    for a greater possibility exists that a minor’s character defi-
    ciencies will be reformed.” Id.
       Developmental literature also bears out the conclusion that
    “adolescents and adults are different in ways that warrant
    their differential treatment under the law.”14 Laurence Stein-
    berg, an expert on adolescent development and professor of
    psychology at Temple University, notes, “it is logically
    impossible to make the age of the offender irrelevant in dis-
    cussions of criminal justice policy.”15
       Juvenile psychological development is pertinent to at least
    three aspects of the criminal justice process: competency to be
    prosecuted, culpability for the underlying offense, and amena-
    bility to treatment.16
          Laurence Steinberg, Temple University, Congressional Research
    Briefing, Should Juvenile Offenders Be Tried As Adults? A Developmental
    Perspective on Changing Legal Policies (Jan. 19, 2000), available at (hereinafter “Stein-
          Id. at 3 (emphasis added).
          Laurence Steinberg & Elizabeth Cauffman, The Elephant in the
    Courtroom: A Developmental Perspective on the Adjudication of Youthful
    Offenders, 6 Va. J. Soc. Pol’y & L. 389, 398-399 (1999) (hereinafter
    “Steinberg & Cauffman”).
    17190               MENDEZ-ALCARAZ v. GONZALES
       First, youths are more likely to find themselves scared and
    intimidated by the adversarial nature of adult proceedings.
    They may lack the capacity to meaningfully contribute to
    their own defense in such proceedings, and are more likely to
    defer to authority figures, including prosecutors in plea negotia-
       Second, youths may lack the requisite culpability that the
    law has long recognized as an essential element of most crim-
    inal laws.18 Many juveniles lack fully-developed, logical
    decision-making skills and an ability to foresee the future
    consequences of their behavior.19
       Third, juvenile development bears on the issue of punish-
    ment and amenability to treatment.20 Juveniles have long been
    considered more susceptible to rehabilitation than adult
    offenders, although focusing on individual life experience
    rather than simply age is the best way to determine appropri-
    ate punishment or treatment.21
          Steinberg, supra, at 4-5; Thomas Grisso, The Competence of Adoles-
    cents as Trial Defendants, 3 Psych. Pub. Pol. and L. 3 (1997); Thomas
    Grisso, et al., Juveniles’ Competence to Stand Trial: A Comparison of
    Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. and
    Human Behavior 333 (2003).
          Steinberg, supra, at 5-6.
          Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of
    Adolescence: Developmental Immaturity, Diminished Responsibility, and
    the Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003); Juvenile
    Justice Center, American Bar Association, Adolescence, Brain Develop-
    ment, and Legal Culpability (2004), available at
          Steinberg, supra, at 7.
          Id. Steinberg and Cauffman conclude that the offender’s age is not
    determinative of amenability to rehabilitation. They argue for an individu-
    alized analysis of each offender. Steinberg and Cauffman, supra, at 414
    (“Amenability decisions should be made on a case-by-case basis and
    should focus on the prior history, rather than the chronological age, of the
                        MENDEZ-ALCARAZ v. GONZALES                      17191
      Both the law and the scientific literature agree that when it
    comes to crime, juveniles are different.
       The United States Supreme Court, the Ninth Circuit, and
    the Oregon Supreme Court have all held that transferring a
    child from the juvenile justice system to the adult criminal
    justice system is an event of such importance that due process
    requires she or he be given a hearing. Kent, 383 U.S. at 554;
    Barker v. Estelle, 
    913 F.2d 1433
     (9th Cir. 1990); Bouge v.
    459 P.2d 869
     (Or. 1969).
       In Kent, the Supreme Court dealt with the issue of whether
    the District of Columbia’s transfer law, “read in the context
    of constitutional principles relating to due process,” required
    the juvenile court to provide the child a hearing prior to waiv-
    ing its jurisdiction (hence transferring the case to adult crimi-
    nal court). Kent, 383 U.S. at 552, 557. The Court held that it
    did, noting that “[i]t would be extraordinary if society’s spe-
    cial concern for children . . . permitted this procedure” of
    sending children to adult criminal court without a hearing. Id.
    at 554.
       Although Kent was arguably decided as a matter of statu-
    tory law, the Court has since clarified the Fourteenth Amend-
    ment issue, stating that “the basic requirements of due process
    and fairness [must] be satisfied in such proceedings.” In re
    Gault, 387 U.S. at 12. As the Oregon Supreme Court has
    explicitly recognized, “the intent of the United States
    Supreme Court, as expressed in [Kent and In re Gault], is that
    the due process clause of the Constitution of the United States
    requires states to accord a hearing before a juvenile can be
    remanded to the adult criminal process.” Bouge, 459 P.2d at
    870.22 The Ninth Circuit has also so held. Barker, 913 F.2d at
        The majority cites Alvarado v. Hill, 
    252 F.3d 1066
     (9th Cir. 2001), for
    the proposition that Measure 11 does not violate the Fourteenth Amend-
    17192               MENDEZ-ALCARAZ v. GONZALES
    1440 (“[D]ue process requires that, before a juvenile can be
    transferred to an adult court, the juvenile must be given a
    hearing, effective assistance of counsel, access to records
    relied on by the court, and a statement of reasons for the juve-
    nile court decision.”); Guam v. Kingsbury, 
    649 F.2d 740
    , 743
    (9th Cir. 1981) (“In the context of juvenile certification proce-
    dures, due process requires the rights to counsel, to adequate
    notice and to a statement of reasons at a hearing to determine
    whether a juvenile is to be tried as an adult.”).
       The necessity of holding an individualized hearing prior to
    prosecuting a child as an adult follows logically from the
    basic legal and developmental tenets of our juvenile justice
    system. As Dr. Steinberg has noted, “the need for this addi-
    tional information argues for a more individualized approach
    to both transfer and sentencing of juveniles, and argues
    against policies that do not permit such flexibility, such as
    transfer via legislative exclusion.”23 Mandatory transfer laws
    that do away with individualized assessments of the child and
    focus instead on the offense itself are “bad policy from a
    developmental perspective.”24 For this reason, the American
    Bar Association and the Institute of Judicial Administration
    have urged that “no youths fifteen, sixteen or seventeen
    should be transferred except by a juvenile court judge after a
    ment. However, Alvarado does not control. The court in Alvarado, adopt-
    ing the standard of review required by AEDPA in a habeas matter, noted
    that “[t]he question before us is not whether Measure 11 violates due pro-
    cess as that concept might be extrapolated from the decisions of the
    Supreme Court[;]” the question was whether there had been a violation of
    clearly established federal law. Id. at 1068-69. Although the Supreme
    Court has not explicitly declared Measure 11 unconstitutional, such a con-
    clusion is easily extrapolated from In re Gault and Kent. See, e.g., Bouge,
    459 P.2d at 870.
          Steinberg, supra, at 7.
          Id. at 8.
          Youth in the Criminal Justice System, supra, at 1 n.1. In fact, Measure
    11 violates three of the seven guiding principles set out by the ABA’s
                        MENDEZ-ALCARAZ v. GONZALES                       17193
       Undoubtedly, many juveniles have attained the maturity,
    foresight, and responsibility we expect from adults, and they
    may be prosecuted accordingly. As a general rule, however,
    Oregon law requires that juveniles receive a hearing prior to
    being transferred to adult court. Or. Rev. Stat. § 419C.349.
    Measure 11 removes this protection for juveniles charged
    with certain crimes. To take such a highly personal and fact-
    specific inquiry out of the hands of juvenile court judges, as
    Measure 11 does, violates procedural due process.
       But for Measure 11, Mendez would have received a hearing
    in juvenile court as to whether or not he should have been
    tried as an adult. Or. Rev. Stat. § 419C.349. The court would
    have determined whether or not Mendez had “sufficient
    sophistication and maturity to appreciate the nature and quali-
    ty” of his conduct and whether or not retaining jurisdiction in
    the juvenile court would “serve the best interests of the youth
    and of society.” Id.
       First, the court would have considered Mendez’s amenabil-
    ity to treatment and rehabilitation, which his psychological
    profile indicates was high.26 Or. Rev. Stat. § 419C.349(4)(a).
    Second, it would have considered whether the seriousness of
    Mendez’s offense required the protection of the community,
    Task Force on Youth in the Criminal Justice System. Measure 11 ignores
    the fact that “developmental differences need to be taken into account at
    all stages and in all aspects of the adult criminal justice system.” Measure
    11’s mandatory minimums do not let judges “consider the individual char-
    acteristics of the youth during sentencing.” Measure 11 also makes the
    “collateral consequences normally attendant to the adult criminal justice
    process . . . apply to all youth” convicted of certain crimes, including the
    effects such convictions may have on immigration status, as in Mendez’s
    case. Id. at 7.
          Mendez’s psychological evaluation states, “He is highly likely to ben-
    efit from any form of counseling afforded to him, and is amenable to com-
    munity based outpatient programming. The likelihood of recidivism,
    already low due to the situational nature of his offense, would be even
    lower were he involved in treatment.”
    17194               MENDEZ-ALCARAZ v. GONZALES
    Or. Rev. Stat. § 419C.349(4)(b), which it likely did not given
    his “low recidivism potential and a high likelihood of benefit-
    ting from treatment.” Third, the court would have considered
    whether Mendez’s conduct was aggressive, violent, premedi-
    tated or willful. Or. Rev. Stat. § 419C.349(4)(c). Witness
    Franklin told investigators Mendez’s conduct was none of
    these, and Mendez’s psychological evaluation indicates that
    “his admitted sexual misconduct was situational rather than
    being indicative of a pattern of deviant sexual thinking and
    conduct.” Fourth, the court would have considered Mendez’s
    emotional and mental health. Or. Rev. Stat. § 419C.349(4)
    (d)(B). The psychological evaluation indicates that Mendez
    suffered from acute depression and his “childhood adjustment
    was marred by physical and emotional abuse.”27 Fifth, but for
    Measure 11, the juvenile court would have looked at his prior
    criminal/delinquent record. Or. Rev. Stat. § 419C.349(4)(e).
    Mendez had no prior record. Sixth, the court would have
    weighed the gravity of injury caused by the offense. Or. Rev.
    Stat. § 419C.349(4)(f). According to the victim’s father she
    suffered no emotional damage, and, according to her friend,
    the victim continued to flirt with Mendez weeks after the inci-
       Of course, it is not our role to decide on the merits whether
    or not Mendez should have been tried as an adult or as a child,
    “but there is no place in our system of law for reaching a
    result of such tremendous consequences . . . without hearing.”
    Kent, 383 U.S. at 554. A juvenile court judge should have had
    the opportunity to consider whether Mendez should have been
         Child psychologists have noted the effects that child abuse may have
    on a victim’s own sexual misconduct. Marty Beyer et al., More Than
    Meets the Eye: Rethinking Assessment, Competency and Sentencing for a
    Harsher Era of Juvenile Justice 12 (2002) (“Early trauma appears to be
    a significant, but often untreated, factor in sexual acting out by teenagers.
    The insistence of many professionals that children charged with sex
    offenses are predatory, using an adult model, fails to recognize their own
    sexual victimization and the necessity of recovering from it. Molesting
    younger children is a repetition of the sadistic treatment they received.”).
                        MENDEZ-ALCARAZ v. GONZALES                       17195
    prosecuted as an adult or kept in the juvenile system. In the
    end, that decision was made by the prosecutor, whose charg-
    ing discretion determined which court retained jurisdiction
    over Mendez.28 Fundamental fairness and the tenets of juve-
    nile justice require this decision be made not by a prosecutor
    with an interest in the case, but by an impartial judge in con-
    sidering the interests of both society and the child.
       In the end, this is a case of a young man suffering expul-
    sion from this country for a crime he committed when he was
    a child. Let there be no doubt about it: his behavior was indis-
    putably wrong and deeply troubling. But also troubling is
    Oregon’s abandonment of individualized analysis and the
    withholding of children’s due process rights.
       It is difficult to discern who in this case has benefitted from
    such a constitutionally offensive law. Certainly not Mendez,
    who lost six years of his life and the right to live in the United
    States. Certainly not the people of Oregon, who spent large
    amounts of tax dollars to incarcerate an individual with no
    prior criminal record, whose psychological evaluation found
    a young man with a low likelihood of recidivism that “ac-
    knowledge[d] the wrongfulness of his behavior, [was] capable
        Prosecutors and judges alike recognize the enormous power Measure
    11 gives to charging decisions. One Oregon prosecutor “recognizes that
    Measure 11 gives us amazing authority. With it comes corresponding
    responsibility and we exercise discretion in charging and negotiating judi-
    ciously.” Scott Heiser, quoted in League of Women Voters of Oregon
    Education Fund, Effects of Measure 11 on Juvenile Justice in Oregon
    (2000), Judges
    have also expressed concern over the effect of Measure 11 on plea negoti-
    ations between juveniles and prosecutors. Id. (“[Benton County] Judge
    [Robert S.] Gardner says that overcharging puts pressure on the defendant
    and gives the district attorney great power in negotiations. [Deschutes
    County Circuit Court] Judge [Michael] Sullivan notes that Measure 11’s
    mandatory sentences ‘are so severe that defendants with an arguable
    defense will almost always take a negotiated plea and forego the trial.’ ”).
    17196            MENDEZ-ALCARAZ v. GONZALES
    of generating victim empathy, and asserte[d] that he [was]
    willing to participate in corrective counseling.”
       Ten years ago, the victim’s father, seeking treatment for
    Mendez rather than incarceration, told an investigator, “We
    just do not want to see Tomas’ life messed up.” Measure 11,
    by rejecting the foundational tenets of our juvenile justice sys-
    tem and violating the Fourteenth Amendment, did just that.