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USCA1 Opinion
May 18, 1995
[Not for Publication] [Not for Publication]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 94-1694
UNITED STATES,
Appellee,
v.
WINSTON A. ABRAMS,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
John R. Gibson,* Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Gordon D. Fox with whom David A. Cooper and Cooper & Sanchez were _____________ _______________ ________________
on brief for appellant.
Margaret E. Curran, Assistant United States Attorney, with whom ___________________
Ira Belkin, Assistant United States Attorney, and Sheldon Whitehouse, __________ __________________
United States Attorney, were on brief for appellee.
____________________
____________________
_____________________
*Of the Eighth Circuit, sitting by designation.
STAHL, Circuit Judge. Defendant-appellant Winston STAHL, Circuit Judge. _____________
Abrams appeals the denial of his motion to dismiss an
indictment charging illegal reentry of a deported alien under
8 U.S.C. 1326(b)(1).1 We affirm.
I. I. __
FACTUAL AND PROCEDURAL BACKGROUND FACTUAL AND PROCEDURAL BACKGROUND _________________________________
Abrams, a citizen of Guyana, entered the United
States in February 1981 on a six-month tourist visa. After
the visa expired, he remained in the United States and, over
the next five years, was convicted of several crimes,
including robbery. During this period, Abrams, who speaks
and reads English, briefly attended college. In 1986, Abrams
filed for an adjustment of status seeking to become a lawful
permanent resident. By decision dated January 7, 1987, the
Immigration and Naturalization Service (INS) denied Abrams's
petition, but permitted him to leave the country voluntarily,
thus avoiding deportation proceedings.
Notwithstanding this concession, Abrams chose not
to leave. In July 1987, Abrams and Andrea Gardner, whom he
never married, had a son who is a United States citizen. In
____________________
1. In pertinent part, 1326 provides that any alien who has
been arrested and deported and later reenters the United
States without the Attorney General's consent shall be fined
or imprisoned, or both. 8 U.S.C. 1326(a). An alien whose
deportation "was subsequent to a conviction for commission of
three or more misdemeanors involving drugs, crimes against
the person, or both, or a felony (other than an aggravated
felony)," shall be fined or imprisoned not more than ten
years, or both. 8 U.S.C. 1326(b)(1).
-2- 2
October 1988, a New York state court convicted Abrams2 for
criminal possession of a weapon, criminal possession of
stolen property, and bail jumping. In October 1989, while
incarcerated in New York state prison, Abrams married Angela
Morgan, a United States citizen, with whom he had been living
prior to the 1988 conviction. On March 13, 1990, while
Abrams was still in prison, the INS instituted deportation
proceedings against him.3
Two deportation hearings, both held at the
Downstate Correctional Facility in Fishkill, New York,
followed. Because the events at these hearings are central
to this appeal, we recount them in some detail. At the first
hearing, held May 22, 1990 ("May hearing"), the immigration
judge advised Abrams as follows:
All right, Mr. Abrams, at this
proceeding, you have the right to be
represented by an attorney at your own
expense. If you cannot afford a lawyer
or obtain a lawyer, you should have been,
ah, presented with a list of free legal
services, as well as your appeal rights.
____________________
2. The state indictment named the defendant as Perry Gaul,
an alias used by Abrams.
3. The Order to Show Cause and Notice of Hearing charged two
grounds for deportation: (1) remaining in the United States
for a longer time than permitted following admission as a
non-immigrant in violation of what now appears at 8 U.S.C.
1251(a)(1)(B), and (2) conviction of two crimes involving
"moral turpitude not arising out of a single scheme of
criminal misconduct" in violation of 8 U.S.C.
1251(a)(2)(4)(ii).
-3- 3
At some point during the hearing, Abrams was given
the notice of his appeal rights.4 Abrams then indicated
that he wished to retain counsel. The immigration judge
continued:
The list I gave you sir, if you have a
problem getting a lawyer, you can try and
get someone on that list to represent you
and it has your appeal rights included,
just in case you have to represent
yourself.
The immigration judge advised Abrams of the nature
of the charges against him, and Abrams indicated that he
understood. The judge then asked Abrams whether he was
married, to which Abrams answered in the affirmative. Abrams
also told the judge that he had a three-year-old son. The
judge then stated:
[T]here may be some relief that you might
be able to apply for, but I would suggest
you have your lawyer here, or otherwise
we may be compelled to go ahead, even
though you're unrepresented.
The hearing was continued until July 10, 1990
("July continuance"). Unable to retain private counsel,
Abrams obtained -- on the date of the continuance -- the
____________________
4. Abrams later testified that he received a form that
appeared to be similar to INS form I-618. Form I-618 is a
one-page document explaining procedures to appeal from an
immigration judge's decision. The notice is captioned:
WRITTEN NOTICE OF APPEAL RIGHTS
Your Appeal Rights
Read This Notice Carefully __________________________
(emphasis in original).
-4- 4
services of Attorney Lindsey Collins, whose name appeared on
the free legal services list. Abrams and Collins met for ten
to fifteen minutes prior to the hearing. After the hearing
commenced, Abrams acknowledged that Collins was representing
him. During a colloquy between Abrams and the judge, Abrams
admitted that: (1) he was a citizen of Guyana; (2) had
entered the country on a six-month tourist visa; (3) had
remained in the United States without permission of the INS
after the agency permitted him to leave voluntarily; and (4)
a New York state court had convicted him on charges of
criminal possession of a weapon and possession of stolen
property.
The immigration judge then said to Abrams:
[D]o you understand, based on what you
have told me, based on what your attorney
has told me and based on the record
presented, it appears that you are
deportable from the United States for the
reasons that I have indicated. And, ah,
since you are not seeking any application
for relief, I would have no choice but to
enter an order ordering you [sic]
deportation from the United States back
to Guyana. Do you understand that sir?
Abrams responded, "yes." The immigration judge addressing
Attorney Collins asked, "Mr. Collins, on behalf of your
client, are you willing to accept such a decision as a final
decision?" Collins responded, "I do, I do your Honor." The
deportation order issued on July 10, 1990. Abrams did not
appeal the order, nor did he request an adjustment in status.
-5- 5
On April 3, 1992, Abrams was deported from the
United States. Subsequently, he reentered the United States
without permission. On August 31, 1993, he was arrested by
East Providence, Rhode Island, police for obstruction and
filing a false report, crimes for which he was convicted.
The indictment in this case then issued. On the
day of jury impanelment, Abrams filed a motion to dismiss the
indictment on the basis that the original deportation
proceeding was fundamentally unfair because he did not know
he had a right of appeal or alternative relief. On February
1, 1994, the district court held an evidentiary hearing on
the motion at which Abrams testified. Abrams acknowledged
the receipt of a form dealing with appeal rights. He also
acknowledged that, at the time he had the form, he knew it
dealt with his appeal rights. He testified that he had the
form in his possession for several hours, but he said that he
lost it during his transport from Fishkill back to the
Clinton Correctional Facility where he was serving his
sentence. He further testified that he made no effort to
obtain a new copy. Abrams also acknowledged that he
understood what the immigration judge meant when he asked
whether Abrams accepted the decision as final and Attorney
Collins answered that he did. The day following the hearing,
the district court determined that Abrams "was fairly
apprised of his right to appeal . . . [and] that he
-6- 6
understood that he had the right to appeal." On that basis,
the district court denied his motion to dismiss the
indictment.
On March 3, 1994, Abrams entered into a conditional
plea agreement with the government, reserving his right to
appeal the district court's denial of his motion to dismiss.
Entry of plea and sentencing followed.
II. II. ___
DISCUSSION DISCUSSION __________
In a prosecution brought under 8 U.S.C. 1326, the
government must prove that the defendant was previously
deported. See 8 U.S.C. 1326(a)(1). In United States v. ___ _____________
Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court made _____________
clear that due process requires that before a deportation
order may be used in a subsequent criminal proceeding, that
order must have been subject to judicial review.
Specifically, the Court stated that "where the defects in an
administrative proceeding foreclose judicial review of that
proceeding, an alternative means of obtaining judicial review
must be made available before the administrative order may be
used to establish conclusively an element of the criminal
offense." Id. at 839. In Mendoza-Lopez, the aliens were, in ___ _____________
effect, denied a direct appeal because they were given
inadequate notice of the right to appeal. The government
-7- 7
asked the Court to "assume that the respondents' deportation
hearing was fundamentally unfair." Id. ___
We conclude Abrams's collateral attack must fail
because he cannot show that there were "defects . . .
foreclos[ing] judicial review," that is, there was no denial
of his right to appeal.5 Abrams's principal argument is
that he was not advised of his right to appeal and,
consequently, there could be no "considered and intelligent"
waiver that right.6 We do not agree. Abrams acknowledges
receiving the written notice of appeal rights during the May
____________________
5. We note that our sister circuits have uniformly
interpreted Mendoza-Lopez to require a showing that defendant _____________
was both denied his right to appeal the deportation order and
that he was actually prejudiced by fundamental unfairness in
the underlying proceeding. See, e.g., United States v. ___ ____ _____________
Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994) (collecting ______________
cases). See also United States v. Fares, 978 F.2d 52, 57 (2d ___ ____ _____________ _____
Cir. 1992) ("If we find no fundamental unfairness, and we
therefore conclude that a fully informed exercise of the
right of direct appeal would have yielded the alien no relief
from deportation, the deportation order may be used to
establish conclusively an element of a criminal offense.")
(citing cases). Because Abrams fails on the first step, we
need not consider prejudice.
6. To help put this case in perspective, we reiterate two
important points. First, deportation proceedings are not
criminal actions. United States v. Bodre, 948 F.2d 28, 31 _____________ _____
(1st Cir. 1991), cert. denied, 503 U.S. 941 (1992). A _____ ______
deportation proceeding is a purely civil action to determine
eligibility to remain in this country, and not to punish
unlawful entry. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 ___ _____________
(1984). Accordingly, many of the procedural protections
required in criminal proceedings simply do not apply in this
context. See, e.g., id. at 1038-39. Second, as with ___ ____ ___
criminal proceedings, see, e.g., Jones v. Barnes, 463 U.S. ___ ____ _____ ______
745, 751 (1983), there is no constitutional right to appeal
an adverse deportation order. The right is purely statutory.
-8- 8
hearing and, as required by applicable INS regulations,7 the
immigration judge ascertained that Abrams had, in fact,
received the notice.8 Abrams, an English speaker with some
college education, further acknowledges having the notice for
several hours before misplacing it.
Abrams, however, focuses on the tail end of the
colloquy between the immigration judge and Attorney Collins
during the July continuance at which point the judge asked:
"[O]n behalf of your client, are you willing to accept such a
[deportation order] as a final decision?" Collins responded:
"I do, I do your Honor." Abrams contrasts that exchange with
the facts in United States v. Fares, 978 F.2d 52, 56 (2d Cir. _____________ _____
1992). In Fares, the immigration judge asked the defendant: _____
"And you're accepting orders of deportation to Lebanon as
final in your case with no appeal?" Id. at 57. The Fares ___ _____
court concluded that, although it was a "close question," the
quoted statement alone was an insufficient basis upon which
to conclude that the defendant had waived his right to
appeal. Id. at 56-57. Importantly however, unlike Fares, ___
Abrams received written notice of the right to appeal.
____________________
7. 8 C.F.R. 242.16 requires, in part, that the immigration
judge "shall . . . advise respondent of the availability of
free legal services . . . [and] ascertain that the respondent
has received a list of such programs, and a copy of Form I-
618, Written Notice of Appeal Rights."
8. In fact, at the May hearing, the immigration judge twice
mentioned that the appeal form contained his "appeal rights."
-9- 9
Several other facts undermine Abrams's contention
that he had no notice of his right to appeal. First, at the
May hearing, the immigration judge specifically advised
Abrams that "there may be some relief that you might be able
to apply for." Second, at the July continuance, the judge
stated that since Abrams was "not seeking any application for
relief," the only option was to issue the deportation order.
Third, as Abrams later testified, he fully understood the
implication of Collins's response regarding the finality of
the decision. Thus, in addition to the written notice of
appeal, the immigration judge made at least three direct or
indirect references to the right to appeal the deportation
order or to seek alternative relief.9
Abrams waived his rights when he failed to file a
timely appeal. On the basis of the record, we conclude that
Abrams made his waiver after receiving sufficient notice of
his rights. Accordingly, we conclude that there was no
denial of Abrams's rights and, consequently, his collateral
attack on the July 10, 1990, deportation order fails.10
____________________
9. We also note that having sought an adjustment in status
in 1986, Abrams had some familiarity with INS procedures.
10. Abrams also argues that he was not notified that he
could contact the Guyanese consulate as required by 8 C.F.R.
242.2(g) ("Every detained alien shall be notified that he
may communicate with the consular or diplomatic officers of
the country of his nationality in the United States."). This
is an issue properly addressed on direct appeal. See, e.g., ___ ____
Waldron v. INS, 17 F.3d 511, 515 (2d Cir. 1993), cert. denied _______ ___ _____ ______
115 S. Ct. 572 (1994). Since we hold that there was no
-10- 10
____________________
denial of a direct appeal, Abrams waived consideration of
this issue.
-11- 11
III. III. ____
CONCLUSION CONCLUSION __________
For the foregoing reasons, the decision of the
district court is affirmed. affirmed. ________
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Document Info
Docket Number： 94-1694
Filed Date： 5/18/1995
Precedential Status： Precedential
Modified Date： 9/21/2015