                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

TOMAS ALEJANDRO MENDEZ-                     
ALCARAZ,
                                                    No. 04-74268
                      Petitioner,
              v.                                    Agency No.
                                                    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
               MENDEZ-ALCARAZ v. GONZALES           17177


                       COUNSEL

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.


                            OPINION

KLEINFELD, Circuit Judge:

  The BIA correctly dismissed as untimely Mendez-
Alcaraz’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, 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
  1
     Or. Rev. Stat. § 163.427.
  2
     8 U.S.C. § 1227(a)(2)(A)(iii).
   3
     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.
Velasco-Medina, 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
  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 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).
   6
     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.

                               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 pas-
sage 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).
   10
      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).
   11
      8 U.S.C. § 1252(d).
   12
      Zazueta-Carrillo, 322 F.3d at 1171.
   13
      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
review”).
                     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
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 aggra-
vated felony classification arguable, and “through reasonable
diligence could not have discovered” these cases.
  14
      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.
Montoya, 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.
   15
      Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)
(quotation marks and brackets omitted).
   16
      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.

   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 Four-
teenth 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 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-
  1
   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).

                                 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
  2
   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.
   3
     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.
   4
     Or. Rev. Stat. § 163.411 (2006); Or. Rev. Stat. § 163.427 (2006); Or.
Rev. Stat. § 163.375 (2006).
   5
     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.

                                      IV.

   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
  6
    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[.]”
   7
     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).
   8
     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
http://www.oregon.gov/DOC/RESRCH/docs/m11juv.pdf. 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.
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,
                     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.”).
   9
     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).
   10
      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.”).
   11
      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).
   12
      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-
olds, 857 P.2d 842, 848 n.11 (Or. 1993) (quoting State v. Gul-
lings, 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.
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.”).
  13
     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-
homa, 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
  14
      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
http://www.jcpr.org/wpfiles/Steinberg_briefing.pdf (hereinafter “Stein-
berg”).
   15
      Id. at 3 (emphasis added).
   16
      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-
tions.17

   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
  17
      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).
   18
      Steinberg, supra, at 5-6.
   19
      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 www.abanet.org/
crimjust/juvjus/Adolescence.pdf.
   20
      Steinberg, supra, at 7.
   21
      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
offender.”).
                    MENDEZ-ALCARAZ v. GONZALES                      17191
  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 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
  22
    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
hearing.”25

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.
   23
      Steinberg, supra, at 7.
   24
      Id. at 8.
   25
      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.
   26
      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-
dent.

   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
  27
     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.

                                    VI.

   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
  28
    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), http://www.lwvor.org/documents/JuvenileJustice2000.htm. 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.
