United States v. Roque-Espinoza, Mise ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3947
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MISEAL ROQUE-ESPINOZA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 845—Rebecca R. Pallmeyer, Judge.
____________
ARGUED JANUARY 6, 2003—DECIDED JULY 30, 2003
____________
Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. After spending all but
the first eight months of his life in the United States,
Miseal Roque-Espinoza was removed from the United
States and sent back to his native Mexico in July 1998,
after serving time in prison for marijuana distribution and
attempted murder. Roque-Espinoza illegally re-entered the
United States some time in 1999 and was arrested for
drunk driving in October 2000. His arrest alerted the
immigration authorities to his return, and it was not long
thereafter that he was charged with violating 8 U.S.C.
§ 1326(a) and (b)(2). Roque-Espinoza first pleaded guilty
2 No. 01-3947
to the charge against him, but then he filed a motion to
withdraw his guilty plea in light of the Supreme Court’s
intervening decision in INS v. St. Cyr, 533 U.S. 289 (2001).
The district court denied the motion and sentenced Roque-
Espinoza to a term of 72 months followed by three years of
supervised release. We affirm.
I
Roque-Espinoza was released from the Illinois Depart-
ment of Corrections after serving three years for drug
distribution and attempted murder. As we noted, Roque-
Espinoza had lived in the United States since infancy.
Nevertheless, he is not a United States citizen, and he
suffered the normal consequence of removal (given the
nature of his crimes of conviction) in 1998 after he was
released from prison.
We have gleaned certain facts about the proceedings that
led up to Roque-Espinoza’s 1998 removal from the tran-
scripts and the government’s filings in the district court.
Unfortunately, the record on appeal does not contain tape
recordings or a transcript of Roque-Espinoza’s removal
hearings, and so we are unable to verify exactly what
transpired there. We understand, however, that the tapes
were available to the parties in the district court proceed-
ings on this matter, and Roque-Espinoza does not now
contest the government’s characterization of those proceed-
ings, on which we rely in what follows.
Roque-Espinoza was removed following a hearing con-
ducted by an Immigration Judge (IJ) during which he was
represented by a lawyer (whom he had obtained after the IJ
granted two continuances for that purpose). After the IJ
ruled at the merits hearing that Roque-Espinoza was to be
removed, Roque-Espinoza’s lawyer asked the IJ to grant his
client discretionary relief from removal under § 212(c) of the
Immigration and Naturalization Act, 8 U.S.C. § 1182(c)
No. 01-3947 3
(1994) (repealed). The IJ denied that request because he
believed that the legislation making such relief available
had been repealed. Nonetheless, the IJ informed Roque-
Espinoza of his right to appeal the removal order, and
Roque-Espinoza’s lawyer indicated that his client would
take an administrative appeal from that order. Despite this
representation, however, he never did so.
Prior to being removed, Roque-Espinoza was warned that
he could re-enter the United States only with the per-
mission of the Attorney General. This warning obviously
made little impression on him, because a short time later,
sometime in 1999, he surreptitiously returned to the United
States. Once back, he failed to keep a low profile; instead,
he was arrested on October 14, 2000, by the Bellwood,
Illinois, police for drunk driving. That arrest set in motion
the chain of events that led to federal charges of unlawful
re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2), which
is the statute that makes it a crime for an alien to enter the
United States following an earlier denial of admission,
exclusion or removal without the permission of the Attorney
General. It is uncontested that Roque-Espinoza did not seek
permission from the Attorney General prior to re-entering
the United States. Roque-Espinoza pleaded guilty to these
charges on May 10, 2001.
Three and one half months after Roque-Espinoza entered
his guilty plea, his lawyer sought permission from the court
to withdraw the plea. His reason was that the Supreme
Court’s decision in St. Cyr, which was rendered after his
guilty plea, demonstrated that his earlier removal in 1998
could not as a matter of law serve as a predicate for the
§ 1326 conviction. St. Cyr held that the repeal of § 212(c)
discretionary relief from removal contained in the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept.
30, 1996), does not apply retroactively to defendants who
pleaded guilty to criminal charges prior to the act’s passage.
4 No. 01-3947
533 U.S. at 326. Roque-Espinoza had pleaded guilty on
June 15, 1995, to the state drug and attempted murder
charges that had first landed him in state prison and then
supported his 1998 removal. Roque-Espinoza argues that
St. Cyr establishes that his 1998 removal was invalid be-
cause it was premised on the IJ’s erroneous advice that he
was ineligible for discretionary relief from removal. In fact,
he continues, it is now clear that he was eligible to apply for
such relief given the date of the state guilty plea. If he can
strike down the 1998 removal, his § 1326 charges are also
unsupported, because the 1998 removal is an essential ele-
ment of the § 1326 offense. The district court, however,
found that St. Cyr did not effect a change in the law that
could help Roque-Espinoza. It denied his motion to with-
draw the guilty plea on October 11, 2001, and sentenced
him to 72 months’ imprisonment on November 1, 2001.
II
The Federal Rules of Criminal Procedure allow a defen-
dant to withdraw a guilty plea for “a fair and just reason.”
United States v. Bennett, 332 F.3d 1094, 1099 & n.1 (7th
Cir. 2003) (citing FED. R. CRIM. P. 11(d)(2)(B)).1 Nonethe-
less, this is a narrow escape hatch from a plea entered
following a proper Rule 11 colloquy. See, e.g., Bennett, 332
F.3d at 1099 (explaining guilty plea following Rule 11
colloquy enjoys “presumption of verity”); United States v.
Hodges, 259 F.3d 655, 661 (7th Cir. 2001); United States v.
Gomez-Orozco, 188 F.3d 422, 425 (7th Cir. 1999). Roque-
Espinoza bears the burden of showing that a fair and just
1
As this court explained in Bennett, 332 F.3d at 1099 & n.1, the
Federal Rules of Criminal Procedure were amended in 2002, and
the rule authorizing defendants to seek the withdrawal of a guilty
plea prior to sentencing was moved from FED. R. CRIM. P. 32(e) to
FED. R. CRIM. P. 11(d)(2)(B). The substance of the rule has not
changed.
No. 01-3947 5
reason exists for the withdrawal of his guilty plea, United
States v. Parker, 245 F.3d 974, 976 (7th Cir. 2001), and we
review the district court’s decision denying his motion to
withdraw his guilty plea for an abuse of discretion, Bennett,
332 F.3d at 1099.
Roque-Espinoza urges us to find just such an abuse of
discretion in the district court’s ruling. In his view, St. Cyr
establishes that the IJ erred in finding him ineligible for
discretionary relief from removal. This error, he continues,
is enough by itself to invalidate his original removal. If he
is entitled to present his arguments on the merits of that
removal in this collateral attack, and he persuades us that
St. Cyr indeed has the effect he claims, then he asserts that
he has a winning defense to the charge of illegal re-entry
in violation of § 1326. In making this argument, Roque-
Espinoza also invokes the Supreme Court’s decision in
United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which
held that in order to rely on a prior deportation as an
element of the crime of unlawful re-entry, the proceedings
leading up to a deportation (as removal was then called)
must comport with principles of due process. Id. at 837. The
IJ’s mistake here, he concludes, was so serious that it
tainted the entire removal proceeding and caused it to fall
short of the due process to which he was entitled.
We pause at the outset to reject the “waiver” argument
that the government advances in response to Roque-
Espinoza’s appeal. (The government uses the term “waiver”
in its brief, but we think the more accurate characterization
of the argument it presents is forfeiture.) The government
asserts, in effect, that Roque-Espinoza has forfeited the
argument that he presses on appeal because he failed to
develop it fully before the district court. It seizes on the fact
that Roque-Espinoza’s motion to withdraw his guilty plea
and memorandum of law in support of that motion did not
in so many words allege a due process violation at his re-
moval hearings or that he was deprived of the opportunity
6 No. 01-3947
to seek judicial review of the removal order. In the govern-
ment’s view, these shortcomings in Roque-Espinoza’s filings
before the district court mean that he has forfeited his right
to pursue this claim on appeal.
No one would call Roque-Espinoza’s motion to withdraw
his guilty plea and the supporting memorandum models of
trial advocacy, but that does not mean that they were so
wanting that we should find forfeiture. At worst, the argu-
ments he is presenting now were woefully underdeveloped.
But Roque-Espinoza did indicate that he was trying to
make a collateral attack on the IJ’s 1998 removal order on
the basis of a violation of his due process rights at the
removal hearing. His motion to withdraw his guilty plea
and the supporting memorandum of law cited the Supreme
Court’s decisions in St. Cyr and Mendoza-Lopez. The district
judge was plainly able to discern from Roque-Espinoza’s
filings that he was relying on a combination of Mendoza-
Lopez and St. Cyr to attack his 1998 deportation. We there-
fore reject the government’s argument and move on to the
merits.
In United States v. Mendoza-Lopez, the Supreme Court
did not offer specific guidance about the minimal due proc-
ess requirements for a deportation proceeding. It did, how-
ever, describe why the proceedings at issue there fell short
of the constitutional guarantees. The Court found that the
circumstances surrounding Mendoza-Lopez’s deportation—
that he was deported following a mass deportation proceed-
ing during which he did not knowingly and intelligently
waive his right to appeal, and during which he was not
informed of his right to seek discretionary relief from de-
portation—“amounted to a complete deprivation of judicial
review of the determination.” Id. at 840. Therefore, the
Court reasoned, Mendoza-Lopez’s deportation could not be
used to establish an element of a subsequent offense. Id. at
842.
No. 01-3947 7
Reasoning from the holding in Mendoza-Lopez, this court
has since held that to attack a deportation or removal
collaterally in a § 1326 case, the defendant must first show
that the underlying order was the result of a “deportation
hearing [that] effectively foreclosed his right to direct ju-
dicial review of the deportation order,” and then establish
that “the deportation hearing was fundamentally unfair.”
United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.
1994); see also United States v. Jackson, 93 F.3d 335, 338
(7th Cir. 1996) (applying Espinoza-Farlo test). Other cir-
cuits have taken a similar approach. See United States v.
Benitez-Villafuerte, 186 F.3d 651, 658 & n.8 (5th Cir. 1999)
(collecting cases). In 1996 Congress amended § 1326 to
provide a means for collaterally attacking removals on
which the government seeks to rely to establish § 1326
violations. Section 1326(d) tracks the test employed in this
circuit with the important addition of an administrative
exhaustion requirement. The statute now authorizes a
collateral attack on an underlying removal if the following
three conditions are met: (1) the alien has exhausted the
administrative remedies that offer relief from the removal
order; (2) the removal order was the result of proceedings
that deprived the alien of an opportunity for judicial review;
and (3) a showing of fundamental unfairness. 8 U.S.C.
§ 1326(d)(1)-(3).
Several of our sister circuits have held that because
§ 1326(d)’s three requirements are stated in the conjunctive,
they are mandatory and thus a defendant must satisfy all
three in order to prevail in her collateral attack. United
States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003); United
States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.
2002). The Ninth Circuit might have qualified that posi-
tion—but perhaps it did not—when it added that “[t]he
exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar
collateral review of a deportation proceeding when the
waiver of right to an administrative appeal did not comport
8 No. 01-3947
with due process.” United States v. Muro-Inclan, 249 F.3d
1180, 1183 (9th Cir. 2001). Muro-Inclan may only be mak-
ing the general point that a fundamental fairness problem
will arise if one of the three required elements fails for due
process reasons. We have no need to decide whether there
is a distinction with a difference between the Ninth Circuit
and the others, because as we now explain, Roque-Espinoza
did fail to exhaust, and the circumstances of his failure do
not come close to raising a due process issue.
It is undisputed that Roque-Espinoza did not pursue an
appeal of the IJ’s deportation order with the Board of
Immigration Appeals (BIA). It is also clear that both he and
his lawyer were informed of his right to pursue such an
appeal and that his lawyer indicated that his client would
appeal the IJ’s decision. Roque-Espinoza’s only response to
these otherwise damaging facts is to argue that he should
have been excused from administrative exhaustion on futil-
ity grounds. At the time the IJ decided Roque-Espinoza’s
case, the BIA had taken the position that the provisions of
the Antiterrorism and Effective Death Penalty Act (AEDPA)
repealing § 212(c) discretionary relief applied retroactively.
See AEDPA, Pub. L. No. 104-132, 110 Stat. 1214, 1277; In
re Soriano, 21 I. & N. Dec. 516, 519, 1996 WL 426888 (Op.
Att’y Gen. June 27, 1996). An administrative appeal would
thus have been futile, he argues, and under those circum-
stances the statutory exhaustion requirement should be
excused. There is some support for this position in our
cases, see, e.g., Iddir v. INS, 301 F.3d 492, 498 (7th Cir.
2002) (exhaustion of administrative remedies not required
when “appealing through the administrative process would
be futile because the agency . . . has predetermined the
issue”). Nonetheless, the law would never change if litigants
did not request the responsible tribunals to reconsider
earlier rulings. Furthermore, Roque-Espinoza has bigger
problems than administrative exhaustion. Whether or not
we agreed with him on that point (and the Supreme Court’s
No. 01-3947 9
cases construing the contemporaneous exhaustion require-
ments of the Prison Litigation Reform Act suggest strongly
that futility excuses will not go far, see Porter v. Nussle, 534
U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001)), the
fact remains that Roque-Espinoza was not completely de-
prived of an opportunity to seek judicial review of the IJ’s
understanding of the law. That is enough to dispose of his
case.
Even though Roque-Espinoza may have had good reason
for thinking that he was not eligible for discretionary relief
from removal, because the IJ had so informed him, he
should have realized that avenues of judicial review were
available to him. Apart from a direct appeal to the court of
appeals from a BIA order finding him ineligible for § 212(c)
relief, which may have been possible, he could also have
filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. See Calcano-Martinez v. INS, 533 U.S. 348, 351
(2001); Bosede v. Ashcroft, 309 F.3d 441, 446 (7th Cir. 2002).
In United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir.
2002), the Second Circuit held that an alien was not de-
prived of his right to seek judicial review of a removal order
via the writ of habeas corpus despite the fact that at the
time of Gonzalez-Roque’s removal proceedings and related
appeals, the Supreme Court had not yet firmly established
that habeas corpus relief survived Congress’s termination
of judicial review for removable aliens convicted of aggra-
vated felonies in the IIRIRA and AEDPA. Id. at 49-50. After
all, this is the mechanism that Enrico St. Cyr used, and his
efforts yielded a Supreme Court decision to the effect that
the repeal of § 212(c) relief could not be applied retroac-
tively to aliens in his position. St. Cyr, 533 U.S. at 326.
Nothing prevented Roque-Espinoza from playing the role of
St. Cyr in his particular situation. The fact that he chose
not to make the attempt does not mean that he was de-
prived of all avenues of judicial review of his removal order.
Since the earlier order was a valid one, there is no reason
10 No. 01-3947
why the government could not rely on it to prove the later
violation of § 1326.
Given this conclusion, we have no need to reach Roque-
Espinoza’s further argument that the proceedings leading
up to his 1998 removal were fundamentally unfair: this is
an issue he could have tested earlier, but did not. We note,
however, that it would be hard to show that the loss of a
chance at wholly discretionary relief from removal is the
kind of deprivation of liberty or property that the due
process clause is designed to protect. See United States v.
Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002) (“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.”); United States v. Wilson, 316 F.3d 506, 510
(4th Cir. 2003) (same). The Tenth Circuit, in contrast, has
held that in some cases, an IJ’s failure properly to inform
an alien facing removal of her right to seek discretionary
relief is fundamentally unfair. United States v. Aguirre-
Tello, 324 F.3d 1181, 1191 (10th Cir. 2003); see also Wilson,
316 F.3d at 515-16 (Motz, J., concurring) (disagreeing that
discretionary nature of § 212(c) relief means that removal
proceeding in which eligible alien is not informed of her
right to pursue such relief is not fundamentally unfair).
There may be an important distinction between an alien’s
claim that she has a right to seek discretionary relief, and
the very different claim that she has a right to have that
discretion exercised in a particular way. Depending on the
nature of the underlying interest implicated, denial of the
first might violate basic principles of due process, even
though it is clear that no claim can be stated with regard to
the latter. For example, it is well established that there is
no constitutional right to parole. Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Yet
when a state creates a parole system with mandatory pro-
No. 01-3947 11
visions, an expectation of parole that is entitled to some due
process protections may be established. Id. at 12; Walker v.
Prisoner Review Bd., 769 F.2d 396, 400 (7th Cir. 1985). We
need not decide here how far this line of analysis can be
taken in the context of the relief afforded by § 212(c),
because Roque-Espinoza’s failure to exhaust the remedies
available to him dooms his case no matter what.
III
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-30-03