In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3534
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE HERRERA-VALDEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cr-928 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED SEPTEMBER 21, 2015 — DECIDED JUNE 17, 2016
____________________
Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Jose Gustavo Herrera-Valdez was
prosecuted for illegal reentry after being deported. Before
trial, he filed a motion to disqualify Judge Der-Yeghiayan
from presiding over his prosecution because the judge served
as the District Counsel for the Immigration and Naturaliza-
tion Service (INS) at the time Herrera-Valdez was deported.
He also filed a motion to dismiss the indictment against him
on various grounds, which was denied. Having pled guilty,
2 No. 14-3534
but reserving the right to appeal these issues, he now appeals
those rulings. Because we find that the district court should
have granted Herrera-Valdez’s motion to disqualify, we re-
verse his conviction.
I. BACKGROUND
Herrera-Valdez is a citizen of Mexico who became a per-
manent resident of the United States in April 1990. In Novem-
ber 1992, Herrera-Valdez was arrested and charged with var-
ious drug crimes in violation of 21 U.S.C. §§ 846, 841(b)(2).
Herrera-Valdez pled guilty to conspiracy to possess with in-
tent to distribute cocaine, and was sentenced to seventy
months in prison.
In February 1994, the Immigration and Naturalization Ser-
vice (INS) served Herrera-Valdez with an order to show cause
and notice of hearing contending that Herrera-Valdez was re-
movable from the United States because he was convicted of
an aggravated felony.
On December 22, 1997, after spending five years and one
month in the custody of the Bureau of Prisons, INS took cus-
tody of Herrera-Valdez. Two months later, Herrera-Valdez re-
ceived a Notice to Appear for a removal hearing.
At the hearing, Herrera-Valdez admitted that he was con-
victed of an aggravated felony. He requested a waiver under
the Immigration and Naturalization Act § 212(c), which, at
the time, was available for deportable offenses where the of-
fender established lawful permanent residence over seven
years and did not serve more than five years in custody for
the underlying offense. However, the immigration judge de-
nied the request and ordered Herrera-Valdez deported.
No. 14-3534 3
Herrera-Valdez filed his appeal of the removal order one
day past the thirty-day deadline, and INS filed a responsive
brief in support of the immigration judge’s decision. The Chi-
cago District Counsel of the INS at the time was Samuel Der-
Yeghiayan, who later became a judge in the United States Dis-
trict Court for the Northern District of Illinois. His name was
listed in two places on the four-page brief. First, it appeared
on the title page, and identified him as District Counsel. Sec-
ond, his name was printed in the signature block of the brief.
An assistant district counsel’s name was actually signed to the
brief.
The Board of Immigration Appeals (BIA) denied Herrera-
Valdez’s appeal, reasoning that because the appeal was late,
the BIA had no jurisdiction to decide the merits of his case.
After the denial, Herrera-Valdez obtained new counsel and
filed a motion to reopen based on his prior counsel’s ineffec-
tive assistance with filing a timely appeal. The INS filed a brief
in opposition to Herrera-Valdez’s motion to reopen, arguing
that Herrera-Valdez did not attach the proper affidavit or in-
form the BIA whether Herrera-Valdez’s prior counsel was no-
tified of the allegations. The brief again listed Samuel Der-
Yeghiayan as Chicago District Counsel on both the title page
and the signature block. Again, the brief was signed by some-
one else in the office.
In March 2000, the BIA dismissed the appeal, because Her-
rera-Valdez did not follow certain technical requirements.
Specifically, Herrera-Valdez did not include “an affidavit de-
tailing the agreement between [Herrera-Valdez] and prior
counsel” or provide any “indication that previous counsel
was informed of [Herrera-Valdez’s attorney disciplinary]
4 No. 14-3534
complaint, nor given an opportunity to respond” and, as a re-
sult, failed to perfect his ineffective assistance of counsel
claim. Herrera-Valdez then re-submitted the pleading as a
motion to reconsider and included the proper documentation.
However, he failed to pay the proper filing fee and the BIA
also denied the motion to reconsider.
Almost three years later in March 2003, Herrera-Valdez
left the United States for Mexico. According to Herrera-Val-
dez, at the time he departed, he did not know he was subject
to a deportation order and in March 2008, he re-entered the
United States. In November 2009, he was arrested in Illinois
for the manufacture and/or delivery of between 15 and 100
grams of cocaine, as well as being a convicted felon in posses-
sion of a firearm. Four days later, Immigration and Customs
Enforcement (ICE) officers located Herrera-Valdez in custody.
Herrera-Valdez pled guilty in state court to one count of
possession with intent to distribute 15–100 grams of cocaine
and was sentenced to six years’ imprisonment. Shortly after
his conviction, ICE officers located him in state prison, and
informed him his prior removal order would be reinstated.
In November 2012, Herrera-Valdez was criminally in-
dicted for illegal reentry in violation of 8 U.S.C. § 1326(a). The
case was assigned to Samuel Der-Yeghiayan, who had left INS
in 2000 and was then serving as a judge in the Northern Dis-
trict of Illinois. Herrera-Valdez filed a motion to disqualify
Judge Der-Yeghiayan pursuant to 28 U.S.C. § 455, which he
denied. Herrera-Valdez then filed a motion to reconsider as
well as a motion to dismiss the indictment. The next day,
Judge Der-Yeghiayan denied the motion to reconsider, and
soon after, denied the motion to dismiss. Ultimately, Herrera-
Valdez pled guilty to illegal reentry under 8 U.S.C. § 1326(a),
No. 14-3534 5
reserving his right to appeal the denials of his motion to dis-
qualify Judge Der-Yeghiayan and to dismiss the indictment.
In November 2014, Judge Der-Yeghiayan entered judg-
ment on Herrera-Valdez’s guilty plea and sentenced Herrera-
Valdez to 46 months in prison and a $100 fine. Herrera-Valdez
now appeals, claiming that the district court erred in denying
both his motion to disqualify and his motion to dismiss.
II. ANALYSIS
A. Recusal Order Was Reviewable
As an initial matter, we must determine if we are permit-
ted to review Herrera-Valdez’s appeal of his motion to dis-
qualify at this stage in the proceedings. Our circuit is the only
one to hold that appellate review of a judge’s failure to dis-
qualify herself under § 455(a) requires petitioning the appel-
late court for a writ of mandamus prior to trial. United States
v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001); United States v.
Boyd, 208 F.3d 638, 645 (7th Cir. 2000). We have expressed sev-
eral reasons for this rule. Foremost is the goal of preventing
damage to the judiciary’s public image by swiftly remedying
any perception of bias. Id. “Once the proceedings at issue are
concluded, a post hoc motion for recusal will do little to rem-
edy any appearance of bias that was present.” United States v.
Diekemper, 604 F.3d 345, 352 (7th Cir. 2010); see also United
States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989). Second, is the
desire to promote judicial economy. “Counsel who perceive a
problem under § 455(a) must not tarry, for delay imposes
heavy costs on other litigants and the judicial system.” In re
Nat’l Union Fire Ins. Co., 839 F.2d 1226, 1232 (7th Cir. 1988). We
have also noted that unlike a case of actual bias under
6 No. 14-3534
§ 455(b), a party’s substantial rights are not affected by the de-
nial of a recusal motion under § 455(a), and “it is a fundamen-
tal principle of appellate review that unless an error affects
the substantial rights of the appellant, it is not a basis for re-
versal.” Ruzzano, 247 F.3d at 693 (citing Troxell, 887 F.2d at
833).
However, we have considered relaxing the mandamus re-
quirement in special circumstances. See, e.g., United States v.
Ward, 211 F.3d 356, 364 (7th Cir. 2000) (questioning application
of mandamus requirement where party did not discover in-
formation upon which recusal motion was based until after
trial). We have also debated the merits of denying parties the
ability to appeal disqualification if they fail to do so immedi-
ately after the district court rules on their motions. See Boyd,
208 F.3d at 650 (Ripple, J., dissenting) (observing that other
circuits have found parties do have some rights under
§ 455(a), and direct appeals can provide a “partial cure” to
any harm to public perceptions of the judiciary).
Herrera-Valdez did not petition for a writ of mandamus
when his § 455(a) motion was denied in the district court pro-
ceedings. Instead, he entered into a conditional plea agree-
ment which preserved his right to appeal the denial of his mo-
tion. He points to our cases which allow that “[w]ith the con-
sent of the government and approval of the court, a defendant
may enter a conditional plea of guilty, reserving … the right
to have an appellate court review an adverse determination
of a specified pretrial motion.” United States v. Kingcade, 562
F.3d 794, 797 (7th Cir. 2009) (internal quotation marks omit-
ted). The government agrees that we may review Herrera-Val-
dez’s recusal argument because of the express reservation in
No. 14-3534 7
the conditional plea agreement that the district court ap-
proved.
We have never examined whether a party has effectively
waived its right of appellate review of a disqualification mo-
tion in the context of a plea agreement that reserves certain
arguments for appeal. Several factors lead us to conclude that
under these circumstances, we may review Herrera-Valdez’s
appeal of the district court’s denial of his disqualification mo-
tion.
First, the Supreme Court has reviewed appellate courts’
decisions regarding disqualification motions under § 455(a)
even when the appeal was not from a mandamus ruling, sug-
gesting that the lack of an interlocutory appeal does not de-
prive us of jurisdiction to review the district court’s denial of
the disqualification motion. See Liteky v. United States, 510 U.S.
540 (1994); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847 (1988). We have instead construed a failure to adhere to
the mandamus requirement as a waiver of a § 455(a) recusal
argument on appeal. See United States v. Johnson, 680 F.3d 966,
980 (7th Cir. 2012); United States v. Smith, 210 F.3d 760, 764 (7th
Cir. 2000). This distinction makes the government’s express
request that we review the recusal issue significant. It means
the government has effectively waived any argument that
Herrera-Valdez waived his ability to appeal the district court’s
ruling. See, e.g., United States v. Adigun, 703 F.3d 1014, 1022 (7th
Cir. 2012) (holding that government can “waive waiver” if it
fails to assert the preclusive effect of waiver before the appel-
late court).
Second, the circumstances of Herrera-Valdez’s appeal mit-
igate some of the usual concerns underlying the mandamus
8 No. 14-3534
requirement. For example, if a full-blown trial or series of rul-
ings occurred between the denial of a recusal motion and ap-
peal of that motion, not only would significant judicial re-
sources be wasted, but all of the intervening rulings would be
vulnerable to public perceptions of bias. Here, Herrera-Val-
dez’s case terminated quickly (he entered into the plea agree-
ment a mere fourteen days after his recusal motion was de-
nied), and he only filed one motion between the time Judge
Der-Yeghiayan denied his recusal motion and the court en-
tered his guilty plea. After his recusal motion was denied, the
subsequent ruling on the motion to dismiss the indictment
and sentencing may have damaged the image of the judiciary
and wasted some judicial resources. But we do not think the
damage here is beyond repair on appeal, and the swift and
relatively straightforward disposition of this case persuade us
that the benefits of reviewing the recusal motion at this junc-
ture outweigh the costs. In any event, we need not rule on the
propriety of reserving the right to appeal recusal motions in
every plea agreement. Rather, we find that these unique cir-
cumstances—the short time that passed between the recusal
ruling and Herrera-Valdez’s appeal, the relatively limited sub-
stantive proceedings between the ruling and the appeal, and
the government’s waiver of the mandamus issue—allow us to
review the recusal motion on appeal. So we continue to the
merits of Herrera-Valdez’s § 455(a) argument.
B. 28 U.S.C. § 455(a) Recusal Required
28 U.S.C. § 455(a) requires that a “judge … shall disqualify
himself in any proceeding in which his impartiality might rea-
sonably be questioned.” The purpose of the provision is to
“promote public confidence in the integrity of the judicial
process … [which] does not depend upon whether or not the
No. 14-3534 9
judge actually knew of facts creating an appearance of impro-
priety, so long as the public might reasonably believe that he
or she knew.” Durhan v. Neopolitan, 875 F.2d 91, 97 (7th Cir.
1989). Under § 455(a), all a party has to show is that a judge’s
impartiality might be questioned by a reasonable, well-in-
formed observer. See United States v. Hatcher, 150 F.3d 631, 637
(7th Cir. 1998). The test for appearance of partiality is whether
an objective, disinterested observer fully informed of the rea-
sons that recusal was sought would entertain a significant
doubt that justice would be done in the case. Pepsico, Inc. v.
McMillen, 764 F.2d 458, 460 (7th Cir. 1985). There is inherent
difficulty in applying this standard as a judge is “both [] its
interpreter and its object.” SCA Servs. v. Morgan, 557 F.2d 110,
116 (7th Cir. 1977).
To address the difficulty in applying § 455(a), judges refer
to the prohibitions outlined in § 455(b) because “affiliations
that pose risks similar to those identified in § 455(b) may call
for disqualification under § 455(a).” Hatcher, 150 F.3d at 637
(citing Nat’l Union Fire Ins., 839 F.2d at 1229). 28 U.S.C. § 455(b)
contains specific circumstances which mandate the recusal of
a judge. § 455(a) is generally understood to encompass the sit-
uations outlined in § 455(b), but also a broader range of situ-
ations in which impartiality exists, but its appearance is com-
promised. Otherwise, “drawing all inferences favorable to the
honesty and care of the judge whose conduct has been ques-
tioned could collapse the appearance of impropriety standard
under § 455(a) into a demand for proof of actual impropriety.”
In re Mason, 916 F.2d 384, 386 (7th Cir. 1990).
Relevant to our case, § 455(b)(3) instructs that a judge “dis-
qualify himself … [w]here he has served in governmental em-
10 No. 14-3534
ployment and … participated as counsel [or] adviser … con-
cerning the proceeding or expressed an opinion concerning
the merits of the particular case in controversy.” To argue that
Judge Der-Yeghiayan properly denied Herrera-Valdez’s mo-
tion, the government relies on our application of § 455(b)(3) in
United States v. Lara-Unzueta, 735 F.3d 954 (7th Cir. 2013). Sim-
ilar to the case here, in Lara-Unzueta, the defendant was also a
Mexican citizen who was a permanent resident, convicted of
crimes, and deported back to Mexico. Id. at 955–56. Judge Der-
Yeghiayan presided over the defendant’s prosecution for ille-
gal reentry, even though he served as District Counsel for the
INS during Lara-Unzueta’s deportation proceedings. Id. at
958. Lara-Unzueta argued that Judge Der-Yeghiayan should
have recused himself pursuant to § 455(b)(3), and our deci-
sion in United States v. Ruzzano, 247 F.3d 688, 695 (7th Cir.
2001). In Ruzzano, we held that while an Assistant U.S. Attor-
ney must have actually participated in a related proceeding to
trigger recusal under § 455(b)(3), the same is not needed for a
judge who was “the [former] United States Attorney in [the]
judicial district whe[re] the case was prosecuted,” who must
recuse regardless of direct participation. Lara-Unzueta, 735
F.3d at 960 (citing Ruzzano, 247 F.3d at 695). Lara-Unzueta ar-
gued that INS District Counsel was a similar role to the U.S.
Attorney, and Judge Der-Yeghiayan should also be disquali-
fied from cases relating back to his tenure leading INS’s dis-
trict office. We rejected this comparison, and found that the
mandatory recusal requirement “for the [] Presidentially-ap-
pointed U.S. attorney … does not extend to other past service
in the Executive Branch.” Lara-Unzueta, 735 F.3d at 960. Be-
cause there was no indication that Judge Der-Yeghiayan actu-
ally participated in Lara-Unzueta’s removal case when he was
No. 14-3534 11
District Counsel, we affirmed his decision not to recuse him-
self. Id.
The government argues that the same outcome should re-
sult here. But unlike in Lara-Unzueta, Herrera-Valdez is ap-
pealing the denial of his recusal motion under § 455(a). Judge
Der-Yeghiayan’s actual participation in Herrera-Valdez’s un-
derlying deportation case is not a requirement to trigger
recusal under § 455(a). Instead, we must answer the question
of whether the judge’s participation in Herrera-Valdez’s orig-
inal deportation case would lead a reasonable, well-informed
observer to question his impartiality in adjudicating Herrera-
Valdez’s illegal reentry prosecution and sentencing. See
Hatcher, 150 F.3d at 637. We hold that it does.
We do not question Judge Der-Yeghiayan’s impartiality in
presiding over Herrera-Valdez’s illegal reentry case. But a
judge’s actual bias is not dispositive of the question of his dis-
qualification under § 455(a), and observers outside of the ju-
dicial process “are less inclined to credit judges’ impartiality
and mental discipline than the judiciary itself will be.” Id., (cit-
ing Mason, 916 F.2d at 386). We conclude that a reasonable,
disinterested observer could assume bias from the fact that
the judge presiding over the defendant’s prosecution for ille-
gal reentry was the same person who ran the office that pur-
sued, and succeeded in obtaining, the removal order that is
the source of his current prosecution.
This is particularly the case given that the linchpin of Her-
rera-Valdez’s case is his collateral attack against the removal
order. It is reasonable to perceive that a judge may con-
sciously or unconsciously credit the government’s arguments
that a removal order is valid when that same judge headed
the office that sought and succeeded in obtaining the removal
12 No. 14-3534
order. Judge Der-Yeghiayan’s name appears on pleadings that
advanced the INS’s efforts to deport Herrera-Valdez. Mem-
bers of the legal profession and complex government bureau-
cracies may understand that this does not necessarily mean
that Judge Der-Yeghiayan reviewed each pleading on which
his name appeared. Certainly it is not proof of the kind that
would trigger recusal under § 455(b)(3). But a disinterested
observer—within or outside of the legal profession—could
reasonably conclude that attaching his name to certain plead-
ings suggests that Judge Der-Yeghiayan reviewed and ap-
proved the pleadings before they were submitted to the im-
migration court. As District Counsel, Judge Der-Yeghiayan
had control over all of his office’s decisions to pursue removal
proceedings. How he delegated that control is open to specu-
lation, and it is precisely that speculation that causes the per-
ception of bias which is prohibited under § 455(a). Indeed, a
reasonable observer could conclude that Judge Der-
Yeghiayan was adjudicating the merits of a collateral attack
against his own work product. 1
1 Recently, the Supreme Court announced a new rule that there is “an im-
permissible risk of actual bias when a judge earlier had significant, per-
sonal involvement as a prosecutor in a critical decision regarding the de-
fendant’s case.” Williams v. Pennsylvania, ___ S. Ct. ____, 2016 LEXIS 3774
(June 9, 2016). It found that the involvement of a Pennsylvania Supreme
Court justice in a post-conviction proceeding violated the Due Process
Clause because the justice previously served as the prosecutor who ap-
proved pursuing the death penalty against the defendant.
While our case addresses only the interpretation of 28 U.S.C. § 455(a), we
find instructive the Court’s statement that “the involvement of multiple
actors and the passage of time do not relieve the former prosecutor of the
duty to withdraw in order to ensure the neutrality of the judicial process
in determining the consequences that his or her own earlier, critical deci-
sion may have set in motion.” Id. at *16. The Court also noted that statutes
No. 14-3534 13
We do not think such a perception of bias is dispelled by
the fact that to his recollection, Judge Der-Yeghiayan did not
participate directly in Herrera-Valdez’s deportation proceed-
ings. Certainly, his memory could serve him right. We have
no doubt regarding Judge Der-Yeghiayan’s honesty and un-
wavering commitment to impartiality in this case. But his con-
nection to Herrera-Valdez’s underlying removal order, partic-
ularly given its centrality to Herrera-Valdez’s defense, pro-
duces an appearance of bias which we cannot permit under
§ 455(a).
III. CONCLUSION
For the foregoing reasons, we REVERSE the defendant’s
conviction and direct the case to be reassigned to a new judge.
like the one before us “provide more protection than due process re-
quires” and that due process “demarks only the outer boundaries of judi-
cial disqualifications.” Id. (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813,
828 (1986)). Herrera-Valdez does not make a due process argument, so we
do not address the impact of Williams on any potential violations of Her-
rera-Valdez’s due process rights. But the Court’s pronouncement that the
basic tenets of due process require a judge to carefully consider prior per-
sonal involvement—even if only to approve actions primarily undertaken
by others—confirms our view that recusal in this case was required.