FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMAS ALEJANDRO MENDEZ- 

ALCARAZ,

No. 04-74268 Petitioner,

Agency No.

v.  A90-333-894

ALBERTO R. GONZALES,* Attorney OPINION** General,

Respondent. 

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.

43(c)(2). 

**We publish pursuant to Circuit Rule 36-2(g). 

17175
COUNSEL

Philip James Smith (argued), Nicole Hope Nelson (briefed),

Hecht & Smith, LLP, Portland, Oregon, for the petitioner. 

MENDEZ-ALCARAZ v. GONZALES 17177
Janice K. Redfern (argued), John C. Cunningham (briefed),

Office of Immigration Litigation, U. S. Department of Justice,

Washington, D.C., for the respondent. 

OPINION

KLEINFELD, Circuit Judge: 

The BIA correctly dismissed as untimely MendezAlcaraz’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-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

1Or. Rev. Stat. § 163.427. 

2

8 U.S.C. § 1227(a)(2)(A)(iii). 

3Pub. 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.

Velasco-Medina, 305 F.3d 839, 850 (9th Cir. 2002). 

17178 MENDEZ-ALCARAZ v. GONZALES
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 recognized 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 compliance 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 reconsideration, 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, agreeing with the IJ’s decision, and adding several alternative

grounds: (1) the IJ and BIA had no jurisdiction to grant reconsideration because Mendez-Alcaraz had been removed to Mexico;5

 (2) the motion was untimely, having been filed long after

the 30 day time limit;6 and (3) the crime was retroactively

4

8 U.S.C. § 1101(a)(43)(A). 

5

See 8 C.F.R. § 1003.2(d) (“A motion to reopen or a motion to reconsider 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). 

6

8 C.F.R. § 1003.23(b)(1). 

MENDEZ-ALCARAZ v. GONZALES 17179
reclassified as an aggravated felony and he served five years

or more.7 Mendez-Alacaraz petitions for review. 

Analysis

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

7

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 passage of time between the crime and the removal order.”). 

8

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). 

9

8 U.S.C. § 1252(d). 

108 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 permanent rules). 

118 U.S.C. § 1252(d). 

12Zazueta-Carrillo, 322 F.3d at 1171. 

13Id. 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

review”). 

17180 MENDEZ-ALCARAZ v. GONZALES
on three independent grounds. Because untimeliness is dispositive, 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 equitably 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 circumstances go beyond a garden variety claim of excusable

neglect.”16

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 aggravated felony classification arguable, and “through reasonable

diligence could not have discovered” these cases. 

14The 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 preserved nor raised on appeal or by petition for review. United States v.

Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995). Even if the issues were preserved and raised, they would not avail Petitioner because a criminal conviction 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 suggestion 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.

15Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)

(quotation marks and brackets omitted). 

16Id. at 1193 (citation and internal quotations marks omitted). 

MENDEZ-ALCARAZ v. GONZALES 17181
[2] We cannot accept this argument. There is no claim that

the internet and law libraries do not exist in Mexico. Moreover, the IJ expressly told Mendez-Alcaraz that he “could be

wrong on this. There is a significant legal issue,” before asking if Mendez-Alcaraz wanted to appeal. We further note that

Mendez-Alcaraz had counsel then and now. 

PETITION DENIED. 

FERGUSON, Circuit Judge, 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, with1Or. 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 possess alcohol). 

17182 MENDEZ-ALCARAZ v. GONZALES
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 reaching a result of such tremendous consequences without

ceremony—without hearing.” Kent v. United States, 383 U.S.

541, 554 (1966). 

III.

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

2Of 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). 

MENDEZ-ALCARAZ v. GONZALES 17183
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 psychological 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 justice 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. 

3None of this should be read as minimizing Mendez’s illegal and irresponsible 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 seriousness 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. 

4Or. Rev. Stat. § 163.411 (2006); Or. Rev. Stat. § 163.427 (2006); Or.

Rev. Stat. § 163.375 (2006). 

5Or. 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 victim is less than 14 years of age; 

. . . 

“(2) Sexual abuse in the first degree is a Class B felony.” 

17184 MENDEZ-ALCARAZ v. GONZALES
Using the findings of the staff psychologist who evaluated

Mendez, a county pre-sentence investigation unit and diagnostic center “unanimously agreed [that] if this were not a

Ballot Measure 11 case, [it] would in fact recommend a probationary sentence” with out-patient treatment in the community. 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. 

IV.

In 1994, Oregon voters approved Measure 11 by a margin

of 65% to 35%. The measure contains two important provisions.6

 First, it requires that juveniles over the age of fourteen

6As 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 committed, and the offense is committed on or after April 1, 1995, the

person shall be prosecuted as an adult in criminal court. 

. . . 

MENDEZ-ALCARAZ v. GONZALES 17185
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 Corrections 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[.]” 

7Oregon 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). 

8Or. Dep’t of Corrections, Offenders with Measure 11 Convictions as of

August 1, 2006, Under Age 18 on Date of Crime (2006), available at

http://www.oregon.gov/DOC/RESRCH/docs/m11juv.pdf. This document

also demonstrates a troubling racial disparity when one compares the statistics for minority offenders to their representations in the general population of Oregon. Although African-Americans make up only 1.8% of the

Oregon population, they make up 12.4% of incarcerated Measure 11 juvenile 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.

census.gov/qfd/states/41000.html. 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://

www.hrw.org/reports/1999/maryland/ (follow “The Disproportionate

Impact on Minority Youth” hyperlink); Patricia Allard & Malcolm Young,

17186 MENDEZ-ALCARAZ v. GONZALES
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 fifteen 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 academics,10 the news media,11 and even members of Congress,12

The Sentencing Project, Prosecuting Juveniles in Adult Court: Perspectives 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.”). 

9Task 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 Criminal Justice System); see generally, Mike A. Males, The Scapegoat Generation: America’s War on Adolescents (1996). 

10See, 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 physical 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.”). 

11See, 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 Harvard University, Winter 1998, at 47 (analyzing the effects of “superpredator” rhetoric in the media). 

12See, e.g., House Committee on Economic and Educational Opportunities, 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.’ ”). 

MENDEZ-ALCARAZ v. GONZALES 17187
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 introduction 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 historically 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. Reynolds, 857 P.2d 842, 848 n.11 (Or. 1993) (quoting State v. Gullings, 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 emphasis of “rehabilitative efforts.” State ex rel. Juvenile Dep’t v.

Fitch, 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.”).

13See, 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.”). 

17188 MENDEZ-ALCARAZ v. GONZALES
The strong moral, legal, and policy reasons for distinguishing between juvenile delinquents and adult criminals are “too

obvious to require extended explanation.” Thompson v. Oklahoma, 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 misguided to equate the failings of a minor with those of an adult,

for a greater possibility exists that a minor’s character deficiencies 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 Steinberg, 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 discussions 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 amenability to treatment.16

14Laurence 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

http://www.jcpr.org/wpfiles/Steinberg_briefing.pdf (hereinafter “Steinberg”). 

15Id. at 3 (emphasis added). 

16Laurence 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”). 

MENDEZ-ALCARAZ v. GONZALES 17189
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 negotiations.17

Second, youths may lack the requisite culpability that the

law has long recognized as an essential element of most criminal 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 punishment 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 appropriate punishment or treatment.21

17Steinberg, supra, at 4-5; Thomas Grisso, The Competence of Adolescents 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). 

18Steinberg, supra, at 5-6. 

19Laurence 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 Development, and Legal Culpability (2004), available at www.abanet.org/

crimjust/juvjus/Adolescence.pdf. 

20Steinberg, supra, at 7. 

21Id. Steinberg and Cauffman conclude that the offender’s age is not

determinative of amenability to rehabilitation. They argue for an individualized 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

offender.”). 

17190 MENDEZ-ALCARAZ v. GONZALES
Both the law and the scientific literature agree that when it

comes to crime, juveniles are different. 

V.

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.

Reed, 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 waiving its jurisdiction (hence transferring the case to adult criminal court). Kent, 383 U.S. at 552, 557. The Court held that it

did, noting that “[i]t would be extraordinary if society’s special 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 statutory law, the Court has since clarified the Fourteenth Amendment 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

22The majority cites Alvarado v. Hill, 252 F.3d 1066 (9th Cir. 2001), for

the proposition that Measure 11 does not violate the Fourteenth AmendMENDEZ-ALCARAZ v. GONZALES 17191
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 juvenile court decision.”); Guam v. Kingsbury, 649 F.2d 740, 743

(9th Cir. 1981) (“In the context of juvenile certification procedures, 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 additional 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

hearing.”

25

ment. However, Alvarado does not control. The court in Alvarado, adopting 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 process 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 conclusion is easily extrapolated from In re Gault and Kent. See, e.g., Bouge,

459 P.2d at 870. 

23Steinberg, supra, at 7. 

24Id. at 8. 

25Youth 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

17192 MENDEZ-ALCARAZ v. GONZALES
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 factspecific 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 quality” 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 amenability 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 characteristics 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. 

26Mendez’s psychological evaluation states, “He is highly likely to benefit from any form of counseling afforded to him, and is amenable to community 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.” 

MENDEZ-ALCARAZ v. GONZALES 17193
Or. Rev. Stat. § 419C.349(4)(b), which it likely did not given

his “low recidivism potential and a high likelihood of benefitting from treatment.” Third, the court would have considered

whether Mendez’s conduct was aggressive, violent, premeditated 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 incident. 

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

27Child 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.”).

17194 MENDEZ-ALCARAZ v. GONZALES
prosecuted as an adult or kept in the juvenile system. In the

end, that decision was made by the prosecutor, whose charging discretion determined which court retained jurisdiction

over Mendez.28 Fundamental fairness and the tenets of juvenile justice require this decision be made not by a prosecutor

with an interest in the case, but by an impartial judge in considering the interests of both society and the child. 

VI.

In the end, this is a case of a young man suffering expulsion from this country for a crime he committed when he was

a child. Let there be no doubt about it: his behavior was indisputably 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 “acknowledge[d] the wrongfulness of his behavior, [was] capable

28Prosecutors 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 judiciously.” Scott Heiser, quoted in League of Women Voters of Oregon

Education Fund, Effects of Measure 11 on Juvenile Justice in Oregon

(2000), http://www.lwvor.org/documents/JuvenileJustice2000.htm. Judges

have also expressed concern over the effect of Measure 11 on plea negotiations 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.’ ”).

MENDEZ-ALCARAZ v. GONZALES 17195
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 system and violating the Fourteenth Amendment, did just that. 

17196 MENDEZ-ALCARAZ v. GONZALES