United States v. Stephanie Lois Watkins , 880 F.3d 1221 ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17371
________________________
D.C. Docket No. 1:16-cr-20173-DPG-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEPHANIE LOIS WATKINS,
a.k.a. Stephanie Harrell,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 5, 2018)
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Before WILSON and ROSENBAUM, Circuit Judges, and TITUS ∗, District Judge.
PER CURIAM:
Stephanie Watkins, a native and citizen of Jamaica—and until her
deportation in 2003, a lawful permanent resident of the United States—appeals her
conviction for reentering the country illegally following deportation. On appeal,
Watkins argues that her indictment should have been dismissed because her
deportation order was invalid due to a change in what crimes are considered
“crimes involving moral turpitude” (CIMTs) as defined by the Immigration and
Nationality Act (INA). She also argues that her fingerprints should not have been
collected post indictment and that the district court improperly allowed testimony
from a fingerprint analyst. The government counters that Watkins cannot
collaterally attack her deportation order and that there was no error relating to the
fingerprint collection or testimony. After a careful review of the briefs and with
the benefit of oral argument, we affirm.
I.
Stephanie Lois Watkins became a lawful permanent resident of the United
States in 1992. She has lived in the United States since she arrived here with her
family when she was just 10 years old. Her two children and her parents are all
∗
Honorable Roger W. Titus, United States District Judge for the District of Maryland, sitting by
designation.
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United States citizens who currently reside here. All of her siblings also work and
reside in the United States. In 2003, she was deported back to her home country,
Jamaica, for having been convicted of Florida grand theft, Fla. Stat. § 812.014(1), a
CIMT. At some point, Watkins returned to the United States.
Following a March 2016 traffic stop, Watkins was arrested. The license that
Watkins gave to the officer who stopped her had been flagged as suspicious.
When the officer warned Watkins that she could be charged with obstruction and
other charges if she was lying about her identity, she revealed her real name.
After being taken to police headquarters, Watkins admitted to the officers that her
license was fraudulent, that she had been deported, and that she had reentered the
country illegally. She was subsequently indicted for illegally reentering the
country after deportation.
Prior to a bench trial, Watkins moved to dismiss the indictment. She argued
that because Florida grand theft was no longer a CIMT, her order of deportation
was invalid since she had never been convicted of a CIMT, which also meant that
she could not be charged with illegally reentering the United States because she
should have never been deported in the first place. Before the court ruled on her
motion, Watkins unsuccessfully moved the BIA to reopen her 2003 case.
In the meantime, the government moved for leave to obtain Watkins’s
fingerprints in order to compare them to the fingerprints contained in her
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immigration documents. It argued that a fingerprint analyst would testify to show
identity, namely, that Watkins was the same person who was previously removed
from the United States.
After a hearing addressing both matters, the district court denied Watkins’s
motion to dismiss the indictment and granted the government’s motion to obtain
Watkins’s fingerprints. At the conclusion of the bench trial, Watkins was
convicted and the court sentenced her to time served and one year of supervised
release. She timely appealed.
II.
In a criminal context, we review collateral challenges to the validity of a
deportation order de novo. United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir.
2002). We also “review questions of statutory interpretation de novo, but defer to
the interpretation of the BIA if it is reasonable.” Cano v. U.S. Att’y Gen., 709 F.3d
1052, 1053 (11th Cir. 2013) (per curiam).
Moreover, we review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005).
This standard grants the court substantial leeway; reversal is appropriate only when
the law, facts, or procedure was incorrectly applied or when there is an otherwise
clear error in judgment. Id. at 1265–66.
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III.
The district court did not err in denying Watkins’s motion to dismiss her
indictment. Watkins argues that she could not be charged for illegal reentry
because her underlying deportation order was based on convictions for Florida
grand theft, which, according to Watkins, can no longer be considered a CIMT
after the Supreme Court’s issuance of Descamps v. United States, --- U.S. ---, 133
S. Ct. 2276 (2013). For purposes of our analysis today, because it makes no
difference in the outcome of Watkins’s case, we assume without deciding that
Watkins is correct in asserting that a conviction for Florida grand theft no longer
qualifies as a CIMT. Thus, we are left to decide the question of whether Watkins
can collaterally challenge her underlying deportation order.
To collaterally attack or challenge the validity of her underlying deportation
order, Watkins must show all three of the following requirements: (1) that all
available administrative remedies have been exhausted; (2) that the deportation
proceedings deprived her of the opportunity for judicial review; and (3) that the
deportation proceedings were fundamentally unfair. 8 U.S.C. § 1326(d). We focus
on Watkins’s inability to show that she was denied judicial review in explaining
why her claim fails.
Two Supreme Court cases establish the contours of this requirement that a
litigant demonstrate that she did not have the opportunity for judicial review:
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Lewis v. United States, 445 U.S. 55 (1980), and United States v. Mendoza-Lopez,
481 U.S. 828 (1987). We begin with Lewis. In that case, Lewis was indicted for
being a convicted felon in possession of a firearm, in violation of federal law.
Lewis, 445 U.S. at 57. Lewis sought to defend himself on the basis that his
underlying state conviction was invalid because he had not been represented by
counsel in the proceedings that led to that conviction. Id. at 57-58. Based on the
language of the federal law, the Supreme Court concluded that “one’s status as a
convicted felon should cease only when the conviction upon which that status
depends has been vacated.” Id. at 61. So Lewis could not collaterally challenge
his state-court conviction in the context of his federal-court proceedings. Id. at 61-
65. Critical to the Court’s conclusion was its observation that “a convicted felon is
not without relief.” Id. at 64. As the Court explained, before obtaining a firearm, a
convicted felon could absolve himself of his convicted status for purposes of the
federal statute by obtaining a qualifying pardon or the Secretary of the Treasury’s
consent, or by challenging his prior conviction in state court. Id.Seven years later, the Supreme Court decided Mendoza-Lopez, the case that
resulted in the amendment of § 1326 to include § 1326(d)’s provisions for
collaterally attacking an underlying conviction. In Mendoza-Lopez, the Court
considered whether an undocumented immigrant who is prosecuted under 8 U.S.C.
§ 1326 for illegal entry after deportation may, in the criminal proceeding,
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challenge the validity of the underlying deportation order. Mendoza-Lopez, 481
U.S. at 830. In the criminal proceeding, the district court had concluded that the
petitioners had not made knowing and intelligent waivers of their rights to apply
for suspension of deportation or their rights to appeal because their questions about
these issues had not sufficiently been answered during the deportation proceedings.
Id. at 832. The petitioners sought to set aside their deportation orders on that basis.
In considering what to do, the Supreme Court first acknowledged, like the Lewis
Court had with respect to the federal statute at issue there, that the language and
legislative history of § 1326 do not supply a basis for concluding that Congress
intended in the § 1326 prosecution to allow challenges to the validity of the
underlying deportation. Id. at 834-37.
Nevertheless, the Court concluded that due-process considerations require
that the underlying deportation be subject to “meaningful review” before it may be
used as a basis for proving an element of a § 1326 prosecution. Id. at 837-38.
Further defining what it meant by “meaningful review,” the Supreme Court
explained, “This principle means at the very least 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 a criminal
offense.” Id. at 838 (emphasis added). The Court continued, “[A] collateral
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challenge to the use of a deportation proceeding as an element of a criminal
offense must be permitted where the deportation proceeding effectively eliminates
the right of the [undocumented immigrant] to obtain judicial review.” Id. at 839
(emphasis added). And “[e]ven with this safeguard,” the Supreme Court expressed
concern over the use of an administrative proceeding to establish an element of a
criminal offense.” Id. at 838 n.15.
The main feature distinguishing Mendoza-Lopez from Lewis is the lack in
Mendoza-Lopez of a meaningful opportunity for the petitioners to challenge the
underlying deportation order—in that case, because the petitioners were deprived
in the deportation proceedings themselves of the opportunity by the administrative
judge’s obtaining of unknowing and unintelligent waivers of the rights to apply for
suspension of deportation and to appeal.
Applying these lessons to Watkins’s case, we cannot say that she was
similarly deprived of a meaningful opportunity for judicial review of her
deportation order. True, Watkins could not have raised her Descamps claim within
30 days of when the final administrative decision was rendered, see 8 U.S.C. §
1252(b)(1), because Descamps was not decided until ten years after that.
But besides seeking that type of judicial review of a deportation order, an
undocumented immigrant may file a motion to reopen deportation proceedings and
may seek judicial review of those proceedings if dissatisfied with the BIA’s
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decision.1 Under 8 U.S.C. § 1229a(c)(7)(C)(i), an undocumented immigrant may
file one motion to reopen proceedings, provided that he or she does so within 90
days of the entry of a final administrative order of removal. Of course, 90 days
beyond the issuance of the 2003 final administrative order would not have done
much good for Watkins because, as we have noted, her claim is based on
Descamps, which did not issue until 2013.
But equitable tolling applies to the 90-day deadline to seek reopening.
Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-63 (11th Cir. 2013) (en
banc). And the BIA has suggested in unpublished opinions—including in
Watkins’s case—that the equitable-tolling doctrine applies with equal force to the
number bar. See, e.g., In re: Stephanie Lois Watkins, 2017 WL 1230039, *1 (BIA
Feb. 15, 2017) (“[T]he filing restrictions imposed on motions to reopen are subject
to equitable tolling.”) (citing Avila-Santoyo, 713 F.3d at 1365). So if equitable
tolling could have provided Watkins with a meaningful opportunity to seek and
obtain the BIA’s reopening of her deportation order following the issuance of
Descamps, the district court’s decision denying Watkins collateral review of the
deportation order in the context of the § 1326 proceedings did not run afoul of
§ 1326(d).
1
BIA may sua sponte reopen proceedings, but we have held that BIA’s decision to deny sua
sponte reopening is not judicially reviewable, so we do not include that in our discussion. See
Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283-86 (11th Cir. 2016).
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We therefore review whether Watkins sought and the BIA considered
equitable tolling in Watkins’s case. The record shows that the answer to both
inquiries is “yes.” To establish entitlement to equitable tolling, a petitioner must
show “(1) that [s]he had been pursuing [her] rights diligently, and (2) that some
extraordinary circumstance stood in [her] way.” Avila-Santoyo, 713 F.3d at 1363
n.5 (citation and quotation marks omitted). The BIA declined to equitably toll the
statutory requirements for filing a motion to reopen because it concluded that
Watkins had not pursued her rights diligently, and she had similarly failed to show
that any extraordinary circumstance prevented her from doing so:
The respondent filed the instant motion to reopen on August 1, 2016,
more than 3 years after the issuance on June 20, 2013, of the decision
in Descamps . . . . In her motion, the respondent has offered no
explanation for the filing delay other than to emphasize that she could
not have moved to reopen the proceedings prior to the issuance of the
decisions of the Supreme Court. . . .
Watkins, 2017 WL 1230039, at *1.
Watkins could have sought judicial review of this conclusion, but she did not
do so, though nothing prevented her. For this reason, Watkins was not deprived of
a “meaningful opportunity” for judicial review, and she may not collaterally attack
her underlying deportation order in these § 1326 proceedings. 2
2
We nevertheless note that we agree with the BIA that waiting more than three years to seek to
set aside her deportation order after the means to challenge that order became available does not
demonstrate diligence. And Watkins did not even try to explain why she waited that long.
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IV.
There was also no reversible error in the district court’s evidentiary
decisions. The district court did not abuse its discretion in permitting the
government to collect Watkins’s fingerprints. Neither the Fifth Amendment’s
privilege against self-incrimination nor the Fourth Amendment’s privacy
protections shield a defendant from being compelled to become “the source of real
or physical evidence.” Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826,
1832 (1966) (internal quotation marks omitted). Thus, Watkins was afforded no
constitutional protections regarding compulsion to provide her fingerprints.
However, the district court likely erred, albeit harmlessly, in admitting the
fingerprint analyst’s expert testimony. The Federal Rules of Evidence state that
expert testimony is admissible if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. We use a three-part inquiry to assess the admissibility of expert
testimony by evaluating (1) qualification, (2) reliability, and (3) helpfulness.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc).
Qualification can be based on the proposed expert’s training and experience. Id.11
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at 1260–61. The court has considerable leeway in determining what is reliable, as
long as it its determination is done in light of the Daubert3 factors. Id. at 1262.
And helpfulness is based on whether the testimony “concerns matters that are
beyond the understanding of the average lay person.” Id. Here, the fingerprint
analyst’s testimony was probably not reliable. The analyst did not specifically
testify about her scientific methods and her testimony may not have been based on
sufficient facts or data. See id. at 1260, 1262.
But again, the district court’s error in admitting the testimony was harmless.
The fingerprint analyst’s testimony was admitted to show Watkins’s identity as the
person who was previously deported, but other evidence supported that
contention—testimony from a United States Citizenship and Immigration Services
(USCIS) records manager and testimony from a Department of Homeland Security
(DHS) agent. Watkins herself also admitted that fact repeatedly. Thus, any error
was harmless. See United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.
2005).
V.
Although sympathetic to Watkins’s predicament and her separation from her
entire family, we must affirm the ruling of the district court. She is unable to meet
the requirements that would allow for a collateral attack of her underlying
3
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
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deportation order. Moreover, the district court’s evidentiary rulings were either not
erroneous or, if they were, the error was harmless. Thus, Watkins’s conviction is
affirmed.
AFFIRMED.
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