United States v. Mansa Baptist , 759 F.3d 690 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1273
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MANSA N. BAPTIST,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 448 — James B. Zagel, Judge.
ARGUED JUNE 6, 2014 — DECIDED JULY 17, 2014
Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Mansa N. Baptist (“Baptist”) was first
removed1 from the United States to Belize in 1998 after he
signed a stipulated removal order. Afterwards, he illegally
reentered the United States several times; each time he was
1
When the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) was enacted in April 1997, the term “removal” was substituted
for the term “deportation.” For consistency’s sake, we will use the term
“removal” throughout this opinion.
2 No. 14-1273
discovered, he was again removed to Belize. In 2005, Baptist
illegally entered the United States once more and avoided
detection until he was arrested in 2010. Afterwards, he was
charged with being illegally present in the United States after
having been previously removed, in violation of 8 U.S.C.
§ 1326(a). Baptist filed a motion to dismiss the indictment. In
his motion, he collaterally attacked his 1998 removal under
8 U.S.C. § 1326(d), contending that the removal violated his
due process rights. The district court denied Baptist’s motion,
and he appealed. We affirm the district court’s decision.
I. BACKGROUND
Baptist is a native of Belize who entered the United States
as a lawful permanent resident on January 31, 1988. On
September 15, 1992, Baptist pleaded guilty to possession of a
controlled substance and was sentenced to probation. On
February 6, 1995, Baptist was convicted of possession of a
controlled substance after a bench trial and was sentenced to
probation a second time.2 On September 23, 1996, Baptist was
2
The original order of probation, probation documents, presentence
investigation report, and the official statement of facts for Baptist’s 1995
conviction state that he was convicted of possession only. Other documents,
however, including the Illinois Department of Corrections’ mittimus,
automated court records, and the transcript from Baptist’s sentencing
hearing indicate that he was convicted of possession with intent to deliver.
For his 1996 conviction, certified court documents, the presentence
investigation report, and the Illinois Department of Corrections’ mittimus
show that Baptist was convicted of delivery of a controlled substance.
However, transcripts from Baptist’s sentencing hearing reflect that the
judge found Baptist guilty of possession only. Ultimately, whether Baptist’s
(continued...)
No. 14-1273 3
again convicted of possession of a controlled substance after a
bench trial; this time, he was sentenced to five years’ imprison-
ment. At the time, this offense was considered an aggravated
felony. INA § 101(a)(43)(B).
After being released on parole, Baptist received a Notice to
Appear (“NTA”) on October 14, 1998, stating that he had been
placed in removal proceedings due to his earlier controlled
substance conviction. The NTA asserted that Baptist had been
convicted of an offense constituting an aggravated felony drug
trafficking offense as well as a controlled substance offense,
making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (any
alien who is convicted of an aggravated felony at any time is
removable) and 8 U.S.C. § 1227(a)(2)(B)(i) (any alien who has
been convicted of a violation of a law relating to a controlled
substance, other than a single offense involving possession of
marijuana for one’s own use, is removable).
On October 22, 1998, Baptist was given a form titled,
“Respondent’s Stipulated Request for Order Waiver of Hearing
Pursuant to 8 CFR 3.25(b).”3 The stipulated removal order was
written in English, Baptist’s native language, as well as
Spanish. The document explained Baptist’s rights as well as the
consequences of signing the form. Relevant portions of the
removal order state:
2
(...continued)
1995 and 1996 convictions were for possession or possession with intent to
deliver does not affect our analysis. For purposes of this opinion, we will
assume that Baptist was convicted of possession only.
3
The statute is now 8 C.F.R. § 1003.25(b).
4 No. 14-1273
2. I have received a copy of the LIST OF FREE LEGAL
SERVICE PROVIDERS. I am aware that, pursuant to 8
CFR 240.3, I may be represented by an attorney … . I do
not wish to be represented by an attorney … I elect to
represent myself in these proceedings.
3. I understand my right to a personal hearing before
an immigration judge … . I hereby waive th[is] right[],
and request that my removal proceeding[] be conducted
solely by way of written record without a hearing.
5. I do not wish to apply for relief from removal … . I
am not seeking the relief of … cancellation of removal,
… or any other possible relief or other benefits under
the Act.
8. I understand the consequences … are that I will be
removed from the United States. I make this request
voluntarily, knowingly, and intelligently.
10. I waive appeal of the written order of removal
from the United States.
11. I have carefully read or have had read to me in my
native language this entire document, and fully under-
stand its consequences. I am aware that my eventual
removal from the United States will be the result of my
signing this document.
Baptist signed the form. The Immigration Judge (“IJ”)
reviewed the signed stipulated removal order and stated, “I
find, based upon my review of the record in this matter, that
respondent has entered into this stipulation voluntarily,
knowingly and intelligently.” (Baptist never appeared before
No. 14-1273 5
the IJ; he waived his right to do so when he signed the stipu-
lated removal order.) On October 22, 1998, the IJ ordered
Baptist’s removal. Baptist was deported to Belize on
November 9, 1998; he did not appeal the IJ’s order, file a
motion to reopen the proceedings, or file a habeas petition.
Sometime before September 2, 1999, Baptist reentered the
United States without inspection. On April 2, 2002, he was
arrested by Chicago police officers for assault. Police notified
the Immigration and Naturalization Service, and Baptist
received a Notice of Intent/Decision to Reinstate Prior Order.
This notice stated that Baptist was subject to removal based on
the fact that he had illegally reentered the United States after
having been previously removed, and that the Attorney
General intended to reinstate Baptist’s 1998 removal order. The
notice informed Baptist that he could contest the findings
contained therein, but Baptist never did so. He was removed
to Belize a second time on May 9, 2002.
On June 12, 2002, Baptist tried to gain entry to the United
States by falsely stating that he was a United States citizen. He
was apprehended and charged in district court with illegal
reentry in violation of 8 U.S.C. § 1326(a). On September 2, 2002,
he pleaded guilty; on November 8, 2002, he was sentenced to
37 months’ imprisonment. He served his sentence, then was
removed to Belize a third time on February 17, 2005.
On December 22, 2005, Baptist illegally reentered the
United States once again, this time by displaying someone
else’s Indiana driver’s license to border patrol officers in
California. Baptist managed to evade detection for several
years, but was arrested by Chicago police officers on
6 No. 14-1273
August 30, 2010, for possession of cannabis. The police in-
formed Immigration and Customs Enforcement of Baptist’s
presence in the United States. Baptist was indicted on June 12,
2012, and charged with being illegally present in the United
States after being previously removed or deported in violation
of 8 U.S.C. § 1326(a).
On October 10, 2012, Baptist was arrested; thereafter, he
was held in custody.
Baptist entered a conditional guilty plea to the charges, but
reserved his right to appeal. He then filed a motion collaterally
attacking his 1998 removal under 8 U.S.C. § 1326(d), arguing
that the removal violated his due process rights. He claimed
the removal was fundamentally unfair since it was based on
the stipulated removal order he signed without the assistance
of counsel or the opportunity to appear before an IJ. He also
asserted that if he had not signed the stipulated removal order,
he could have applied for relief from deportation under
§ 212(c) of the former Immigration and Nationality Act.
The government responded to Baptist’s motion and
asserted that his removal was not fundamentally unfair. Since
Baptist voluntarily signed the stipulated removal order, the
government argued that he knowingly waived his right to
counsel as well as a hearing before an IJ. Furthermore, the
government argued that Baptist suffered no prejudice as a
result of his removal, because he was ineligible for relief from
removal anyway. The government also stated that Baptist’s
challenge was without merit since he failed to exhaust his
administrative remedies.
No. 14-1273 7
On July 2, 2013, the district court denied Baptist’s motion.
It found that Baptist’s removal was not fundamentally un-
fair, because he willingly signed the stipulated removal order,
waived his rights, and failed to demonstrate the requisite
prejudice. The court stated: “[t]he stipulated [removal] order
fully advised [Baptist] of his rights, … [and Baptist] doesn’t
claim [he was] coerced or tricked into signing the form … . The
stipulation says that he had read [the form] in his native
language, [and] fully understood its consequences … . He
provides no grounds as to why his waiver was not considered
or intelligent … .”
Baptist now appeals the denial of his motion to dismiss.
II. DISCUSSION
This court reviews de novo the denial of a motion to
dismiss an indictment under 8 U.S.C. § 1326(a). United States v.
Arita-Campos, 607 F.3d 487, 491 (7th Cir. 2010); United States v.
Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir. 2006). Section 1326
makes it a crime for a removed alien to enter, attempt to enter,
or be found in the United States without the consent of the
Attorney General. 8 U.S.C. § 1326 (West 2014). Since a prior
removal is necessary for a conviction under § 1326, an alien
may collaterally attack the underlying removal pursuant to the
due process clause. United States v. Mendoza-Lopez, 481 U.S. 828,
837–38 (1987). The defendant bears the burden of proving that
the deportation order was defective. Arita-Campos, 607 F.3d at
490. In order to successfully do so, an alien must demonstrate
that (1) he exhausted all administrative remedies that were
available to him; (2) the deportation proceedings improperly
deprived him of the opportunity for judicial review; and (3)
8 No. 14-1273
the entry of the order was “fundamentally unfair.” 8 U.S.C.
§ 1326(d). While we have yet to expressly state that all three
requirements must be met before an alien can successfully
collaterally attack a prior removal, we have implied as much.
See, e.g., Santiago-Ochoa, 447 F.3d at 1019–20; United States v.
Lara-Unzueta, 735 F.3d 954, 961 (7th Cir. 2013).
In reaching its decision to deny Baptist’s motion to dismiss,
the district court focused primarily on the fundamental fairness
of Baptist’s removal. The court concluded that Baptist’s 1998
removal was not fundamentally unfair since Baptist knowingly
and voluntarily waived his rights by signing the stipulated
removal order. The court declined to reach 8 U.S.C. § 1326(d)’s
other requirements.
Since this case hinges on the fundamental fairness of
Baptist’s 1998 removal proceedings and on the stipulated
removal order he signed, we begin our analysis there.
The term “fundamentally unfair” is never defined in 8
U.S.C. § 1326(d); however, to demonstrate fundamental
unfairness, the defendant must show that there was a due
process violation and that he suffered prejudice as a result of
the removal proceedings. Santiago-Ochoa, 447 F.3d at 1019;
United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994).
A. Due Process Violation
In Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1036 (5th Cir.
1982), the Fifth Circuit stated that “even aliens who have
entered the United States unlawfully are assured the protec-
tions of the fifth amendment due process clause.” While due
process rights can be waived, “such a waiver must be made
No. 14-1273 9
knowingly and voluntarily.” Nose v. Attorney Gen. of the U.S.,
993 F.2d 75, 79 (5th Cir. 1993).
Under well-established principles of contract law, we
usually assume that an individual knowingly and voluntarily
waived his rights if he signed a waiver. 27 Williston on
Contracts § 70:113 (4th Ed. 2009) (“One who signs or accepts a
written contract, in the absence of fraud or other wrongful act
on the part of another contracting party, is conclusively
presumed to know its contents and to assent to them.”).
However, this is not a contract case; Baptist’s constitutional
right to due process is implicated, and deportation is a serious
penalty. When constitutional rights are implicated, more is
required; “[m]eticulous care must be exercised lest the proce-
dure by which [Baptist] is deprived of that liberty not meet the
essential standards of fairness.” Bridges v. Wixon, 326 U.S. 135,
154 (1945).
In this case, Baptist signed a stipulated removal order, in
which he waived his right to appear before an IJ and to appeal
his removal. Stipulated removal orders are governed by 8
C.F.R. § 1003.25(b), which states:
An Immigration Judge may enter an order of deporta-
tion, exclusion or removal stipulated to by the alien …
and the Service. The Immigration Judge may enter such
an order without a hearing and in the absence of the
parties based on a review of the charging document, the
written stipulation, and supporting documents, if any.
If the alien is unrepresented, the Immigration Judge
must determine that the alien’s waiver is voluntary,
knowing, and intelligent. The stipulated request and
10 No. 14-1273
required waivers shall be signed on behalf of the
government and by the alien and his or her attorney or
representative, if any … . A stipulated order shall
constitute a conclusive determination of the alien’s
deportability or removability from the United States.
After reviewing the signed stipulated removal order, the
district court concluded that Baptist knowingly and voluntarily
waived his rights. The court noted that the order was written
in English, Baptist’s native language, and expressly stated, “I
understand the consequences … are that I will be removed
from the United States. I make this request voluntarily,
knowingly, and intelligently.”
Baptist contends, however, that his waiver was not know-
ing and voluntary, since he says he never read the stipulated
removal order before signing it. He argues that the Ninth
Circuit’s decision in United States v. Ramos, 623 F.3d 672 (9th
Cir. 2010), should guide our decision here, but a key issue
distinguishes Ramos from this case. In Ramos, the defendant
signed a stipulated removal order, in which he waived his
right to appeal and to counsel. Id. at 677. He was deported and
later appealed, claiming that he had not knowingly and
intelligently waived his rights. Id. at 679. The Ninth Circuit
agreed, concluding that Ramos’s waiver was not “considered
or intelligent.” Id. at 680. The court noted that Ramos spoke
only Spanish, that the stipulated removal order was never
orally explained to him in Spanish, and that the written
Spanish translation provided to Ramos was inadequate to
ensure that Ramos understood what rights he was waiving. Id.at 680–81.
No. 14-1273 11
Here, by contrast, the stipulated removal order presented
to Baptist was written in English, Baptist’s native language.
The order clearly stated that Baptist acknowledged receiving
a list of free legal service providers and was informed that he
could be represented by an attorney, but instead chose to
represent himself. The form also stated, “I fully understand …
my right to a personal hearing before an immigration judge
… . Knowing this, I hereby waive th[is] right[], and request that
my removal proceedings be conducted solely by way of
written record without a hearing.”
The form also contained multiple acknowledgments that
defendant was aware of his rights, but knowingly and intelli-
gently waived them. Provision Eight states, “I understand the
consequences of this Stipulated Request for Order, Waiver of
Hearing are that I will be removed from the United States. I
make this request voluntarily, knowingly, and intelligently.”
Provision Eleven states, “I have carefully read or have had
read to me in my native language this entire document, and
fully understand its consequences. I am aware that my even-
tual removal from the United States will be the result of my
signing this document.”
Baptist’s failure to read the form is insufficient to prove his
waiver invalid. It is uncontested that Baptist could read and
understand the form before him, since the form was in English,
his native language. It is also undisputed that the form
explained Baptist’s rights, including his right to counsel, to a
hearing, and to appeal, as well as the fact that he was choosing
to waive those rights. The bottom of the form expressly stated
that defendant had read and understood the form as well as
12 No. 14-1273
the rights he was waiving, and Baptist signed the form.
Though Baptist contends that he was told to “hurry up and
sign [the form] if he wanted to go back to Belize,” he never
asserts that anyone tricked or pressured him into signing the
form; instead, he argues that he should have been represented
by counsel or had the form orally explained to him before his
waiver could be considered knowing and voluntary.
But 8 C.F.R. § 1003.25(b) contains no requirement that an
alien must be represented by counsel or that a stipulated
removal order must be orally explained to him. Instead, the
statute merely requires the IJ to “determine that the alien’s
waiver is voluntary, knowing, and intelligent” if the alien is
unrepresented by counsel. The IJ did so here, stating, “I find,
based upon my review of the record in this matter, that
[Baptist] has entered into this stipulation voluntarily, know-
ingly and intelligently.”
Baptist bore the burden of showing that his 1998 removal
was fundamentally unfair, but he failed to put forth enough
evidence to convince us that the stipulated removal order he
signed was invalid. Therefore, we find no due process viola-
tion.
B. Requisite Prejudice
Even if we were to assume that Baptist’s due process rights
were violated, he still “must establish that [he] was prejudiced,
that is, that the error likely affected the result of the proceed-
ings.” Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir. 2007). Baptist
failed to do so here.
No. 14-1273 13
Before April 1996, the Attorney General, in his discretion,
could waive deportation for an alien who had been convicted
of a crime considered an “aggravated felony” as long as the
alien served a term of imprisonment of less than five years.
INA § 212(c); 8 U.S.C. § 1182(c). However, on April 24, 1996,
the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
was enacted and made relief under INA § 212(c) unavailable to
all aliens who had been convicted of aggravated felonies. Pub.
L. 104–132, 110 Stat. 1214. On April 1, 1997, IIRIRA repealed
INA § 212(c) and replaced it with a new form of relief called
“cancellation of removal.” Pub. L. 104–208, 110 Stat. 3009–546
(1996); 8 U.S.C. § 1229b. However, aliens convicted of aggra-
vated felonies were ineligible for this form of relief. INA
§ 240A; 8 U.S.C. § 1229b.
In I.N.S. v. St. Cyr, the Supreme Court limited the scope of
IIRIRA, holding that aliens who pleaded guilty before the
statute was passed could still obtain relief from removal under
INA § 212(c); the Court, however, said nothing about those
aliens who went to trial and were convicted. 533 U.S. 289, 326
(2001). We have squarely addressed this issue in our circuit and
have held that waivers under INA § 212(c) are available only
to aliens who pleaded guilty prior to the enactment of AEDPA
and IIRIRA, not to aliens who went to trial. Montenegro v.
Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004). In Canto v. Holder,
we explained that eligibility for INA § 212(c) waivers should
not extend to aliens who did not plead guilty prior to the
enactment of AEDPA and IIRIRA since they did not “rel[y]
upon th[e] likelihood of receiving discretionary relief under
section 212(c) in deciding whether to forgo their right to a
14 No. 14-1273
trial … .” 593 F.3d 638, 642 (7th Cir. 2010) (citing I.N.S. v.
St. Cyr, 533 U.S. at 325).
Here, Baptist was convicted in 1995 and 1996 of possession
of a controlled substance. Under the law in effect at the time
of his removal in 1998, Baptist’s prior possession offenses
qualified as aggravated felonies. See, e.g. Matter of Yanez-Garcia,
23 I&N Dec. 390, 398 (BIA 2002) (holding that felony posses-
sion qualifies as an aggravated felony); Fernandez v. Mukasey,
544 F.3d 862, 874 (7th Cir. 2008) (holding that multiple state
possession convictions make an alien removable as an aggra-
vated felon). Though the law has since changed and Baptist’s
possession offenses no longer constitute aggravated felonies
under 8 U.S.C. § 1101(a)(43)(B), the law in effect at the time of
Baptist’s challenged removal is what matters to our analysis.
Since Baptist’s offenses constituted aggravated felonies in 1998,
Baptist was neither eligible for cancellation of removal, nor
could he have applied for discretionary relief under INA
§ 212(c).
The Supreme Court’s decision in St. Cyr cannot save
Baptist’s prejudice claim either. Section 212(c) waivers are
only available to aliens who pleaded guilty prior to the
enactment of AEDPA and IIRIRA; Baptist did not plead guilty
to his 1995 and 1996 possession offenses, but was convicted
after bench trials. Since Baptist cannot demonstrate the
prejudice necessary to sustain a collateral attack on his 1998
deportation, his claim must fail.
No. 14-1273 15
C. Exhaustion of Administrative Remedies and the
Opportunity for Judicial Review
Since Baptist failed to establish that his removal proceed-
ings were fundamentally unfair, we need not reach 8 U.S.C.
§ 1326(d)’s other requirements—exhaustion of administrative
remedies and the opportunity for judicial review.4
III. CONCLUSION
Baptist bore the burden of proving that his 1998 removal
proceedings were defective under 8 U.S.C. § 1326(d), but could
not do so. He failed to establish that his removal proceedings
were “fundamentally unfair,” so we AFFIRM the decision of
the district court.
4
Even if we were to do so, it would not assist Baptist. To satisfy 8 U.S.C.
§ 1326(d), “an alien must have filed a motion to reopen, appealed to the
Board of Immigration Appeals, and pursued all other administrative
remedies available to him.” United States v. Cazares, 2011 WL 612723 *3
(C.D. Ill. 2011) (citing Arita-Campos, 607 F.3d at 491).
Baptist did none of these; he never appealed his sentence, filed a motion
to reopen, or filed a habeas petition. Baptist argues that since he never read
the stipulated removal order before signing it, was not provided with an
attorney, and was not orally informed of his rights, he was unaware of his
right to appeal, and so should not be faulted with failure to exhaust his
administrative remedies.
But the stipulated removal order clearly outlined Baptist’s right to
appeal. When Baptist signed the form, he waived that right; his failure to
read the form does not exempt him from 8 U.S.C. § 1326(d)'s exhaustion
requirement.