United States v. Pizano-Corona ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20124
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO PIZANO-CORONA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CR-21-1)
_________________________________________________________________
August 31, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ramiro Pizano-Corona, a/k/a Henry Miranda, appeals his
conviction for illegal reentry after deportation in violation of 8
U.S.C. §§ 1326(a) and (b)(2). Pizano’s motion to suppress his
prior deportation on due process grounds was denied. Pizano
asserts his prior deportation proceedings (1988) violated
principles of due process because there is no evidence the
immigration judge informed him he had the right to counsel or might
be eligible for relief from deportation. Pizano suggests these
omissions invalidated his waiver of his right to appeal; and he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
contends he was prejudiced by the immigration judge’s alleged
failure to inform him of the possibility of relief from deportation
because there is a reasonable probability he would have been
eligible for relief from deportation based on extreme hardship.
An alien may collaterally challenge a deportation order used
as an element of a criminal offense. United States v.
Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). To suppress a
deportation order charged in a § 1326 prosecution, an alien must
establish: the deportation hearing was “fundamentally unfair”; the
hearing effectively eliminated his right to challenge the hearing
in a judicial review of the deportation order; and he suffered
actual prejudice, meaning there is a reasonable likelihood he would
not have been deported absent the challenged errors in the
deportation proceeding. United States v. Hernanzez-Avalos, 251
F.3d 505, 507 (5th Cir. 2001); United States v. Asibor, 109 F.3d
1023, 1038 (5th Cir.), cert. denied, 522 U.S. 902 (1997); United
States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 & n.8 (5th Cir.
1999), cert. denied, 528 U.S. 1097 (2000)(requiring showing of
actual prejudice while also noting Congress’ 1996 enactment of 8
U.S.C. § 1326(d)).
Pizano’s legal challenges to the constitutionality of the
deportation proceeding are reviewed de novo; the district court’s
factual findings based on live testimony at the suppression
hearing, only for clear error. United States v. Lopez-Vasquez, 227
F.3d 476, 481-82 (5th Cir. 2000); United States v. Sierra-
Hernandez, 192 F.3d 501, 503 (5th Cir. 1999), cert. denied, 528
2
U.S. 1178 (2000); United States v. Encarnacion-Galvez, 964 F.2d
402, 409 (5th Cir. ), cert. denied, 506 U.S. 945 (1992).
Pizano’s lengthy criminal history demonstrates he was
presumptively deportable under the law in effect at his 1988
deportation hearing (as well as under current immigration law) and
that he was (and is) ineligible for any type of relief from, or
suspension of, deportation. See 8 U.S.C.A. §§ 1227(a)(2)(A)(iii),
1228(c), 1229b (West, WESTLAW through May 28, 2001); 8 U.S.C. §§
1251, 1254 (1982 & Supp. V 1987). Thus, Pizano cannot demonstrate
he was prejudiced by errors, if any, in the 1988 deportation
proceeding. Benitez-Villafuerte, 186 F.3d at 658.
Pizano also claims showing actual prejudice is not required
because “structural” error was committed when he was allegedly
denied counsel in relation to his 1988 deportation hearing. The
district court found, however, that the January 1988 show cause
order informed Pizano he could be represented by counsel. Pizano
admitted at the suppression hearing that his signature appeared on
the order. The district court did not commit clear error in
finding Pizano was informed of his right to counsel.
AFFIRMED
3