Roque-Espinoza, Misa v. United States ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 15, 2006*
Decided June 13, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-2607
MISEAL ROQUE-ESPINOZA, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 04 CV 237
UNITED STATES OF AMERICA,
Respondent-Appellee. Rebecca R. Pallmeyer, Judge.
ORDER
This appeal began as a challenge to the district court’s rejection of Miseal Roque-
Espinoza’s effort to obtain collateral relief from an order requiring his removal from
the United States. Events have overtaken the appeal, however, and we therefore
dismiss it.
*
After an examination of the briefs and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. R.
34(a)(2).
No. 05-2607 Page 2
Roque-Espinoza is a Mexican citizen. He has spent most of his life in the United
States, but he was removed after he served time in prison for attempted murder and
marijuana distribution. See United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir.
2003) (Roque-Espinoza I). He soon returned to this country illegally and was arrested
and prosecuted for illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2). After
initially pleading guilty, Roque-Espinoza sought to withdraw his plea in order to attack
his removal order collaterally, as is permitted in certain circumstances by § 1326(d),
arguing that the Immigration Judge (IJ) had erroneously denied him the opportunity
to apply for discretionary relief under a now-repealed section of the Immigration and
Nationality Act. The district court denied the motion and sentenced Roque-Espinoza
to 72 months’ imprisonment. We affirmed, concluding that Roque-Espinoza’s failure
to appeal the IJ’s decision or file a writ of habeas corpus challenging his removal order
doomed his later collateral attack and therefore the district court’s refusal to allow him
to withdraw his guilty plea was not an abuse of discretion. See Roque-Espinoza I, 338
F.3d at 729-30. After that defeat, Roque-Espinoza filed a petition under 28 U.S.C. §
2255, seeking to challenge his removal order once again, this time on the basis that his
immigration counsel was ineffective for failing to file an appeal. The district court
denied relief.
After Roque-Espinoza filed his notice of appeal, the parties set about briefing
this case. On March 14, 2006, this court issued an order granting Roque-Espinoza’s
motion to file a non-conforming reply brief and noting that the case was, at that point,
fully briefed. On April 13, 2006, however, Roque-Espinoza was turned over to the
custody of the Department of Homeland Security, Immigration and Customs
Enforcement (ICE), and transferred to Louisiana. The government has advised us that
an initial removal hearing was held on April 26, 2006, at which Roque-Espinoza
pleaded guilty and asked to be removed immediately. He did not inform the
immigration court that he had a pending appeal in this court. In order to be certain
that Roque-Espinoza knew what he was doing, the ICE deportation officer interviewed
him and confirmed that he was aware of the status of his appeal. Roque-Espinoza
executed a sworn statement on May 5, 2006, in which he acknowledged the status of
his appeal and affirmed nonetheless that he wished to be removed immediately.
The government informed the court, in a status report filed on May 12, 2006,
that it intended to execute the removal order and remove Roque-Espinoza promptly.
In light of Roque-Espinoza’s decision to acquiesce in this action, we conclude that his
appeal must be dismissed. If he has already been removed, the appeal is moot; even if
he has not been removed, we construe his May 5 statement as a waiver of any
arguments he might have presented on appeal and dismiss it on that basis in the
alternative. We note, as well, that his appeal faced considerable difficulties. As a
general rule, a defendant in a federal criminal proceeding may not attack the validity
of a prior conviction on which a later sentencing enhancement is based, Custis v.
No. 05-2607 Page 3
United States, 511 U.S. 485 (1994), nor may she do so through a 28 U.S.C. § 2255petition, Daniels v. United States, 532 U.S. 374 (2001), nor may a state prisoner
collaterally attack a prior conviction later used for sentencing through a 28 U.S.C. §
2254 petition, Lackawanna Co. Dist. Attorney v. Coss, 532 U.S. 394 (2001). Although
the rule is slightly different in immigration cases, as a result of both the Supreme
Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), and
Congress’s decision in the 1996 amendments to the illegal re-entry statute to
incorporate an alien’s right to attack her removal order collaterally, such an attack is
still difficult. Before the petition may proceed, an alien must: (1) exhaust available
administrative remedies; (2) demonstrate that the immigration proceeding deprived her of an
opportunity for judicial review; and (3) show that the entry of the removal order was fundamentally
unfair. 8 U.S.C. § 1326(d).
Although Mendoza-Lopez and the amended version of § 1326 create a limited right
to pursue a collateral attack on a removal order in the context of a prosecution for illegal re-entry,
neither suggests that an alien may continue to challenge such orders once criminal proceedings are
complete. Indeed, the post-Mendoza-Lopez amendment of § 1326 evinces a clear
congressional intent to limit such challenges even in the original criminal prosecution. To allow
further collateral attacks on removal orders by means of § 2255 petitions would conflict with the
purpose of the statute. Once an alien has received the one opportunity for judicial review of a
removal order that Mendoza-Lopez holds that due process requires, the judicial
system’s more general interest in the finality of judgments and the orderly
administration of justice again assumes greater – perhaps dispositive – weight.
We can only assume that Roque-Espinoza sensibly realized all this when he
decided to stop fighting his removal from the United States. For the reasons stated in
this order, we DISMISS the appeal.