United States v. Mendoza-Lopez , 107 S. Ct. 2148 ( 1987 )

Chief Justice Rehnquist,

with whom Justice White and Justice O’Connor join, dissenting.

I agree with the Court’s ruling that the language of 8 U. S. C. § 1326, its history, and other provisions of the Immigration and Nationality Act suggest that Congress did not intend to allow challenges to the validity of a deportation order in a § 1326 proceeding. I also agree with the view that there may be exceptional circumstances where the Due Process Clause prohibits the Government from using an alien’s prior deportation as a basis for imposing criminal liability under § 1326. In my view, however, respondents have fallen far short of establishing such exceptional circumstances here. The Court, in reaching a contrary conclusion, misreads the decision of the District Court.

As the Court acknowledges, respondents, in the District Court, claimed only that “the Immigration Law Judge inadequately informed them of their right to counsel at the [deportation] hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation.” Ante, at 831; see also United States v. Landeros-Quinones, No. CR85-L-06, p. 8 (Neb., Feb. 28, 1985). Respondents did not claim that the judge failed to explain adequately their rights to appeal or that their waivers of these rights were, as we are told today, “not considered or intelligent.” Ante, at 840.

It is true that the District Court, sua sponte, raised the issue whether respondents knowingly waived their rights to appeal the deportation orders. The court, however, treated the issue as subsidiary to its determination that the Immigration Judge did not fully apprise respondents of their rights to apply for suspension of deportation. In ultimately disposing of the issue, the court stated:

“In light of their claimed eligibility for suspension of deportation, ... I find it inconceivable that they would so lightly waive their rights to appeal, and thus to the relief they now claim entitlement, [sic] if they had been fully apprised of the ramifications of such a choice.” United States v. Landeros-Quinones, supra, at 12.

The narrow scope of the District Court’s resolution of the question whether respondents had effectively waived their appeal rights is further demonstrated by the District Court’s examination of the prejudice resulting from the manner in which the deportation hearing was conducted. Determining that a showing of prejudice was a necessary predicate to a successful collateral attack to a prior deportation order, the court concluded that there was a substantial likelihood that respondents were harmed by “the failure of the Immigration Law Judge to fully comply with the provisions of 8 C.F.R. §242.17,” the regulation governing notification of apparent eligibility for suspension of deportation. Id., at 14. Yet, aside from possible harm to respondents resulting from their failure to pursue suspension of deportation relief, the District Court did not identify any prejudice from respondents’ failure to appeal. From these findings of the District Court, the most that can be said with certainty is that the court determined that respondents did not understand that they could pursue their claimed eligibility for suspension of deportation in further proceedings.

In affirming the District Court’s decision in this case, the Court of Appeals did not at all address the question whether respondents knowingly waived their rights to appeal, but instead limited its discussion to respondents’ failure to understand that they could seek suspension of deportation. The Court of Appeals decision thus also does not support this Court’s sweeping assertion that “[t]he fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge’s determination unavailable to respondents.” Ante, at 841.

The Court’s desire to inject into this case a finding that respondents suffered from a denial of their rights to appeal for all purposes is understandable. Without such a finding, the only articulated basis for the Court’s due process holding is respondents’ claim that their deportation orders were invalid because they were not adequately informed that they could apply for suspension of deportation. The Court’s acceptance of this latter claim provides little foundation for its decision.

Recognizing that Congress intended to limit the number of aliens qualifying for suspension of deportation, we have interpreted the statutory section providing for such relief, 8 U. S. C. § 1254(a)(1), as establishing strict threshold criteria that must be met before the Attorney General may grant the relief. See INS v. Rios-Pineda, 471 U. S. 444 (1985); INS v. Phinpathya, 464 U. S. 183 (1984); INS v. Jong Ha Wang, 450 U. S. 139 (1981). Even if all of the requirements of § 1254(a)(1) are satisfied, we have recognized that “it remains in the discretion of the Attorney General to. . . refuse to suspend deportation.” INS v. Rios-Pineda, 471 U. S., at 446. Moreover, if the Attorney General decides that relief should be denied as a matter of discretion, he need not even inquire whether an alien meets the threshold statutory requirements. Id., at 449.

The District Court, in deciding whether respondents were adequately apprised of their ability to apply for suspension of their deportations, concluded that the Immigration Judge complied with the technical notice requirements of 8 CFR § 242.17 (1987); Given that suspension of deportation is provided only as a matter of legislative grace and entrusted to the broad discretion of the Attorney General, the Immigration Judge’s failure to undertake further efforts to make certain that respondents were fully knowledgeable of this privilege hardly compares to the procedural defects this Court has previously identified as fundamentally unfair. See Rose v. Clark, 478 U. S. 570, 577 (1986) (use of a coerced confession, adjudication by a biased judge), cited ante, at 839, n. 17. The judge’s failure to engage respondents in an extended colloquy concerning suspension of their deportations neither “aborted the basic trial process” nor rendered it presumptively prejudicial. 478 U. S., at 578, n. 6.

Conspicuously absent from respondents’ arguments to this Court is any suggestion that the Immigration Law Judge employed improper procedures or erroneously applied the law in determining that respondents were deportable. In fact, several factual findings by the District Court below, not mentioned by the Court, suggest that the Immigration Judge expended considerable effort to ensure the fairness of the hearing. For example, the District Court noted that the Immigration Judge commenced the hearing by instructing respondents “that if any of them did not understand any of the proceedings, to raise their hands and their misunderstandings would be addressed so as to eliminate any confusion.” United States v. Landeros-Quinones, No. CR85-L-06, p. 9 (Neb., Feb. 28, 1985). Respondents indicated their understanding of this arrangement. Moreover, the Immigration Judge informed respondents that they were entitled to be represented by counsel, and made certain that they received a list of the free legal services available to them. At the conclusion of the hearing, the judge asked respondents whether they wished to accept his ruling that they were de-portable, appeal the ruling, or reserve decision, and respondents each stated that they accepted the judge’s ruling. Under these circumstances, I cannot say that respondents’ deportation proceedings violated the dictates of the Due Process Clause.^* I would therefore hold that the courts below erred in concluding that respondents’ prior deportation orders may not be used in the § 1326 proceedings brought against them.

* Because the Government took the position before this Court that deportation orders may never be collaterally attacked in a § 1326 proceeding, it did not request the Court to pass on the question whether respondents’ deportation proceedings violated their due process rights. The Government, however, has not conceded that the deportation proceedings were fundamentally unfair. See, e. g., Tr. of Oral Arg. 13-14. Because the fairness of these proceedings was litigated in the courts below and is a matter subsumed in the precise question presented for this Court’s review, it cannot be seriously argued that the issue is not properly before this Court. Indeed, the Court itself has chosen to decide the issue, albeit in a manner different from that suggested here.