United States v. Lopez-Ortiz ( 2002 )

REVISED DECEMBER 13, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-21264
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
JOEL LOPEZ-ORTIZ,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
November 18, 2002
Before JOLLY, DUHÉ and DENNIS, Circuit Judges.
DUHÉ, Circuit Judge:
The United States appeals the district court’s order
suppressing Joel Lopez-Ortiz’s prior removal and dismissing the
indictment against him for illegal reentry in violation of 8 U.S.C.
§ 1326(a) and (b)(2). We hold that the hearing at which Lopez-
Ortiz’s removal order was issued was not fundamentally unfair.
Because, under 8 U.S.C. 1326(d) and United States v. Mendoza-
Lopez,481 U.S. 828, 107 S. Ct. 2148 (1987), fundamental unfairness
is necessary for collateral challenge of a removal order, we
REVERSE and remand for trial.
I. BACKGROUND
Joel Lopez-Ortiz is a citizen of Mexico who obtained permanent
resident alien status in the United States in 1990. In 1995,
Lopez-Ortiz, who previously had been convicted twice of misdemeanor
driving while intoxicated (DWI), pleaded guilty to felony
possession of cocaine.
After Lopez-Ortiz’s cocaine possession plea, Congress changed
immigration law with the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”). Among the changes was abolition of
discretionary waiver of removal, formerly available under §212(c)
of the Immigration and Nationality Act (“§ 212(c) relief”), for
aliens convicted of aggravated felonies.
In 1998, Lopez-Ortiz was arrested for felony third-offense
DWI. Before the felony DWI could be adjudicated, the INS
discovered Lopez-Ortiz in the Tarrant County Jail. Lopez-Ortiz was
served with a Notice to Appear, the INS having determined based on
the 1995 cocaine conviction that he was removable as an aggravated
felon.
At the removal hearing, the Immigration Judge advised Lopez-
Ortiz to obtain counsel. Lopez-Ortiz waived counsel, admitted the
factual allegations in the Notice to Appear, and conceded that he
was removable as an aggravated felon. Neither the Immigration
Judge nor anyone at the INS told Lopez-Ortiz that he was eligible
to apply for § 212 (c) relief. The Immigration Judge told Lopez-
2
Ortiz that he had the right to appeal, but that he would have to
remain in detention pending appeal and pay for an attorney. When
Lopez-Ortiz asked if an appeal would enable him to get his green
card back, the Immigration Judge answered that such an outcome was
unlikely. Lopez-Ortiz waived administrative appeal and was
deported.
Lopez-Ortiz reentered the United States and was convicted of
the felony DWI in 2000. He was discovered by the INS while serving
his sentence, and this prosecution for illegal reentry under 8
U.S.C. § 1326 (a) and (b)(2) followed.1 Lopez-Ortiz moved for
suppression of his prior removal, an essential element of the
1
In relevant part, 8 U.S.C. 1326 provides:
(a)Subject to subsection (b) of this section, any alien who–
(1) has been denied admission, excluded, deported, or removed
or has departed the United States while an order of exclusion,
deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the
United States, unless (A) prior to his reembarkation at a
place outside the United States or his application for
admission from foreign contiguous territory, the Attorney
General has expressly consented to such alien's reapplying for
admission; or (B) with respect to an alien previously denied
admission and removed, unless such alien shall establish that
he was not required to obtain such advance consent under this
chapter or any prior Act, shall be fined under Title 18, or
imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens.
Notwithstanding subsection (a) of this section, in the case of
any alien described in such subsection--
(2) whose removal was subsequent to a conviction for
commission of an aggravated felony, such alien shall be fined
under such Title, imprisoned not more than 20 years, or both.
3
illegal reentry offense, arguing that his removal hearing failed to
afford due process. His due process challenge was based on the
Immigration Judge’s failure to inform him of the possibility of §
212(c) relief as well as the judge’s advice that Lopez-Ortiz had
the right to appeal but would likely be unsuccessful.2
The district court granted Lopez-Ortiz’s motion to suppress
the removal order and dismissed the indictment. The United States
filed this expedited appeal.
II. STANDARD OF REVIEW
When considering the district court’s ruling on a motion to
suppress, we review conclusions of law de novo and findings of fact
for clear error. United States v. Hernandez, 279 F.3d 302, 306
(5th Cir. 2002). We view the evidence in a light most favorable to
the party who prevailed in the district court. Id. at 306.
III. COLLATERAL CHALLENGE OF THE PRIOR REMOVAL
Lopez-Ortiz’s motion to suppress is a collateral challenge
governed by 8 U.S.C. 1326(d) and the Supreme Court’s decision in
United States v. Mendoza-Lopez, 481 U.S. 828, 107 S. Ct. 2148(1987). See, e.g., United States v. Benitez-Villafuerte, 186 F.3d
651, 658-59, (5th Cir. 1999). In Mendoza-Lopez, the district court
2
Lopez-Ortiz argued also that the removal hearing was
fundamentally unfair because his 1995 conviction was not an
aggravated felony as defined in 8 U.S.C. 1101(a)(43)(B). Lopez-
Ortiz concedes that this argument is foreclosed by our holding in
United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert.
denied, 122 S. Ct. 305 (2001), but raises the issue to preserve it
for further appeals in his case.
4
dismissed indictments against defendants charged with illegal
reentry under 8 U.S.C. § 1326. The Immigration Judge who presided
over the defendants’ deportation hearing had not explained
adequately their eligibility to apply for suspension from
deportation and had accepted their unconsidered waivers of appeal.3
The district court held, and the Eighth Circuit affirmed, that the
deportation hearing violated due process. The United States
appealed, arguing that collateral review of a final deportation
order was neither authorized by 8 U.S.C. § 1326 nor required by the
Constitution. The United States did not seek, and the Supreme
Court did not provide, review of the conclusion that the
deportation hearing was fundamentally unfair.4 The Court held that
due process requires collateral review of deportation orders used
in § 1326 prosecutions, explaining 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
2155.
3
What was called “deportation” in pre-IIRIRA terminology is now
referred to as “removal.”
4
The Court wrote: “The United States has asked this Court to
assume that respondents’ deportation hearing was fundamentally
unfair in considering whether collateral attack on the hearing may
be permitted. We consequently accept the legal conclusions of the
court below that the deportation hearing violated due process.”
U.S. v. Mendoza-Lopez, 107 S. Ct. 2148, 2156 (1987).
5
Following Mendoza-Lopez, this court developed a three-part test
for challenge of a prior removal to be used in a § 1326
prosecution. Our interpretation of Mendoza-Lopez required an alien
challenging a prior removal to establish that (1) the removal
hearing was fundamentally unfair; (2) the hearing effectively
eliminated the right of the alien to challenge the hearing by means
of judicial review of the order; and (3) the procedural
deficiencies caused the alien actual prejudice. See United States
v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000). This
interpretation of Mendoza-Lopez effectively was codified, See
Lopez-Vasquez, 227 F.3d 476, 484, in 8 U.S.C. § 1326(d), which
provides:
In a criminal proceeding under this section, an alien may not
challenge the validity of the deportation order described in
section (a)(1) or subsection (b) of this section unless the
alien demonstrates that:
(1) the alien exhausted any administrative remedies that may
have been available to seek relief against the order;
(2) the deportation proceeding at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and
(3) the entry of the order was fundamentally unfair.
In asserting that the district court was correct to suppress
his prior removal, Lopez-Ortiz emphasizes the similarities between
his removal hearing and the one at issue in Mendoza-Lopez.
Mendoza-Lopez is instructive on the issue whether Lopez-Ortiz was
deprived of judicial review. Mendoza-Lopez, 107 S. Ct. at 2156.
However, deprivation of judicial review is only one element of the
6
collateral attack. See Lopez-Vasquez, 227 F.3d 476; United States
v. Palacios-Martinez, 845 F.2d 89, 91 (5th Cir. 1988)(explaining
that Mendoza-Lopez “established the second requirement which is
that a collateral attack on a deportation hearing should be allowed
if, in addition to being fundamentally unfair, the hearing
effectively eliminated the right of the alien to challenge the
hearing by means of review of the deportation order”)(emphasis
added); 8 U.S.C. 1336(d). We still must determine whether Lopez-
Ortiz’s hearing was fundamentally unfair.5
Lopez-Ortiz asserts that the Immigration Judge’s failure to
inform him of the possibility of § 212(c) relief rendered his
removal hearing fundamentally unfair. At the time of Lopez-Ortiz’s
hearing, the Board of Immigration Appeals had decided that the
abolition of §212(c)relief was applicable to aliens, such as Lopez-
Ortiz, who had been convicted of aggravated felonies and whose
removal proceedings commenced after the effective date of IIRIRA.
5
Lopez-Ortiz argues that this court interpreted Mendoza-Lopez
as holding that failure to advise of discretionary relief and
acceptance of unconsidered waiver of appeal violate due process,
citing United States v. Saucedo-Velasquez, 843 F.2d 832 (5th Cir.
1988). In its discussion of Mendoza-Lopez, this court stated: “The
Court then went on to hold that due process requires the right to
a collateral challenge to the deportation proceeding as an element
of a criminal offense at least when there was a failure to explain
either the right to judicial review of the deportation proceeding
or a relevant right to apply for suspension of deportation.” Id at
832. Saucedo-Velasquez notes only that collateral challenge must
be available to an alien charged with illegal reentry who was
effectively deprived of judicial review of his removal proceeding.
Id at 834. However, demonstration of effective deprivation of
judicial review is only one step toward success in the collateral
attack.
7
In Re Soriano, 21 I.& N. Dec 516, 519 (1996).6 After In Re
Soriano, Immigration Judges conducted removal proceedings with the
understanding that aliens with aggravated felony convictions were
ineligible for § 212(c) relief. Thus, it is no surprise that
Lopez-Ortiz was not told about § 212(c) relief during his removal
proceeding.
In 2001, three years after Lopez-Ortiz’s removal was final,
the Supreme Court held that § 212(c) relief “remains available for
aliens ... whose convictions were obtained through plea agreements
and who, notwithstanding those convictions, would have been
eligible for section 212(c) relief at the time of their plea under
the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 121 S. Ct.
2271, 2293 (2001). Thus, contrary to the understanding of the INS
and the Immigration Judge who conducted his hearing, Lopez-Ortiz
was eligible for § 212(c) relief.
The government argues that St. Cyr should not affect our
evaluation of Lopez-Ortiz’s removal hearing because the Supreme
Court has held that new rules of civil law do not apply
retroactively to cases not on direct review. Harper v. Virginia
Department of Taxation, 509 U.S. 86., 113 S. Ct. 2510. The
government’s error is in its view of St. Cyr as announcing a new
rule. St. Cyr was a case of statutory interpretation. 121 S. Ct.
6This circuit later affirmed the position taken by the BIA. See
Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306-308 (5th Cir.
1999); Alfarache v. Cravener, 203 F.3d 381, 383 (5th Cir. 2000).
8
at 2278. As such, its holding did not change the law. See Rivers
v. Roadway Express, Inc., 511 U.S. 298, 114 S. Ct. 1510 (1994).
Rather, St. Cyr “finally decided what [IIRIRA] had always meant and
explained why the [BIA and the] Courts of Appeals had
misinterpreted the will of the enacting Congress.” 511 U.S. at 313
n.12 (emphasis in original). Therefore, St. Cyr established Lopez-
Ortiz’s eligibility for § 212(c) relief at the time of his removal,
and the Immigration Judge’s contrary understanding, although in
compliance with BIA precedent, was an erroneous application of the
law. This error informs our evaluation of the fundamental fairness
of the removal hearing.
Fundamental fairness is a question of procedure. Lopez-
Vasquez, 227 F.3d at 484. Removal hearings are civil proceedings,
not criminal; therefore, procedural protections accorded an alien
in a removal proceeding are less stringent than those available to
a criminal defendant. Benitz-Villafuerte, 186 F.3d 651, 657.
(citing Ramirez-Osorio, 745 F.2d 937, 944). The Supreme Court has
stated that due process requires that an alien who faces
deportation be provided (1) notice of the charges against him, (2)
a hearing before an executive or administrative tribunal, and (3)
a fair opportunity to be heard. Kwong Hai Chew v. Colding, 344
U.S. 590, 597-98, 73 S. Ct. 472, 97 L. Ed 576 (1953). The record
establishes, and Lopez-Ortiz does not contest, that he was provided
with these protections. Because he was provided with the
9
protections mandated by the Supreme Court, Lopez-Ortiz’s challenge
of the fundamental fairness of his removal hearing rests on the
Immigration Judge’s error in not explaining his eligibility for §
212(c) relief.
Lopez-Ortiz presupposes that eligibility for discretionary
relief under § 212(c) is an interest warranting constitutional due
process protection. We disagree. St. Cyr’s holding was not
grounded in § 212(c) relief having the status of a constitutionally
protected interest; rather, it was based on the Court’s
interpretation of IIRIRA. In fact, § 212(c) relief, because it is
available within the broad discretion of the Attorney General, is
not a right protected by due process.
This circuit has noted that § 212(c) relief “‘was couched in
conditional and permissive terms. As a piece of legislative grace,
it conveyed no rights, it conferred no status’”, and its denial
does not implicate the Due Process clause. Alfarache v. Cravener,
203 F.3d 381 (2000)(quoting Cadby v. Savoretti, 256 F.2d 439, 443
(5th Cir. 1956).7 See also Gonzalez-Torres v. INS, 213 F.3d 899,
903 (5th Cir. 1999)(alien has no constitutional right to
7
Alfarache was decided before St. Cyr and incorrectly treated
the petitioner as ineligible for § 212(c) relief. The petitioner
in Alfarache argued that the INS’s delay of deportation proceedings
resulted in their commencement after IIRIRA ostensibly eliminated
his eligibility for § 212(c) relief. Our holding that the
petitioner had no constitutional entitlement to eligibility for
discretionary relief is predicated on the nature of discretionary
relief, not on our understanding that abolishment of § 212(c) was
retroactive.
10
discretionary relief over which the Attorney General exercises
“unfettered discretion”.) (citing Tefel v. Reno, 180 F.3d 1286,
1301-02 (11th Cir. 1999), cert. denied, 530 U.S. 1228, 120 S.Ct.
2657, 147 L.Ed.2d 272 (2000)). Other circuits considering the
effect of St. Cyr likewise have held that discretionary relief is
not a vested right meriting due process protection. See
Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir.
2002)(“[A]n alien has no constitutionally protected right to
discretionary relief or to be eligible for discretionary relief.”);
Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002)(§ 1326 defendant
had no liberty or property interest in § 212(c) relief).
Because eligibility for § 212(c) relief is not a liberty or
property interest warranting due process protection, we hold that
the Immigration Judge’s error in failing to explain Lopez-Ortiz’s
eligibility does not rise to the level of fundamental unfairness.
Having determined that Lopez-Ortiz’s removal hearing did not
violate his right to due process, we need not reach the remaining
requirements of our precedents and 8 U.S.C. 1326(d), namely
exhaustion of administrative remedies and actual prejudice. We
reverse the order of the district court and remand the case for
trial.
REVERSED and REMANDED.
11