United States v. Villarreal-Valdez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 12 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 03-3115
v. (D.C. No. 02-CR-10038-01-MLB)
RAYMUNDO GUADALUPE (D. Kansas)
VILLARREAL-VALDEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , Circuit Judges.
Defendant Raymundo Villarreal-Valdez appeals following a conditional
plea of guilty to illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. He challenges the district court’s decision overruling his motion to
dismiss the indictment on the grounds that he qualifies as a United States citizen
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
and that he was denied due process at the immigration hearing that resulted in his
deportation.
Defendant was born in Mexico in 1975. His father was a Mexican national,
but on June 8, 1997, his mother and grandmother were recognized as
United States citizens from birth. Beginning in 1988 Defendant resided primarily
in the United States. On June 8, 1992, Defendant was issued a Resident Alien or
“green” card allowing him to be lawfully present in the United States until June 8,
2002.
In 1996 Defendant pleaded guilty to a Colorado felony marijuana offense
and served a short prison sentence. When he was released, he was given an
immigration hearing, at which he was not represented by counsel. At the hearing
his permission to remain lawfully in the United States was revoked. He waived
appeal and was deported on October 18, 1996.
The district court found that Defendant was not informed that he could
apply to stay in the United States, but held that he nevertheless was not denied
due process. The district court likewise refused to dismiss the indictment on the
ground that Defendant is a United States citizen. Defendant entered a conditional
guilty plea to illegal reentry and now appeals the district court’s decision. We
affirm.
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I. Derivative Citizenship
“To obtain a conviction under 8 U.S.C. § 1326 for illegal reentry after
deportation, the government must prove the defendant: (1) is an alien; (2) was
previously arrested and deported; (3) was thereafter found in the United States;
and (4) lacked the permission of the Attorney General.” United States v. Anaya,
117 F.3d 447, 449 (10th Cir. 1997). Defendant contends that the district court
erred in failing to dismiss the indictment for illegal reentry because he is
derivatively eligible for United States citizenship under 8 U.S.C. § 1401. The
district court’s decision not to dismiss the indictment is a matter of law that we
review de novo. See Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189
(10th Cir. 1999).
At the time of Defendant’s birth § 1401 provided:
[A] person born outside the geographical limits of the United States
and its outlying possessions of parents one of whom is an alien, and
the other a citizen of the United States who, prior to the birth of such
person, was physically present in the United States or its outlying
possessions for a period or periods totaling not less than ten years, at
least five of which were after attaining the age of fourteen years
is a national and citizen of the United States. 8 U.S.C. § 1401(a)(7) (1952). The
district court held that “[s]ection 1401(a)(7), which was in effect at the time of
defendant’s birth, could not have conferred citizenship on defendant because
there is no evidence that defendant’s mother, even though later ‘deemed’ to have
been a U.S. citizen at her birth, was physically present in the United States prior
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to defendant’s birth for a period or periods totaling ten years, at least five of
which were after she attained the age of 14.” Dist. Ct. Memorandum & Order, at
5. We agree.
Defendant “concedes there is no evidence in the record to establish the
residency requirements of his mother in the United States prior to his birth
pursuant to 8 U.S.C. §1401(g).” Aplt. Br. at 8-9. His claim of derivative
citizenship is consequently not based on the plain language of § 1401. Rather, he
argues that “[t]he residency requirement . . . is an unfair application of the statute
on a person who could not legally establish her prior residency . . . because at that
time she was deemed illegal, and is only later recognized as a U.S. citizen from
her birth.” Id. at 9.
Assuming, without deciding, that because Defendant’s mother is considered
a citizen from birth, she satisfied the citizenship requirement at the time of
Defendant’s birth, we see no reason why she would be incapable of meeting the
residency requirements. See § 1401(a)(7) (1952). Defendant’s mother could have
been legally present in the United States for the requisite period of time even
though she had not yet been deemed a citizen. We therefore fail to see how
applying the residency requirements of § 1401 in these circumstances is unfair.
In any event, “Congress unquestionably possesses the authority to create
standards for the attainment of United States citizenship by foreignborn persons.”
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Gonzalez de Lara v. United States, 439 F.2d 1316, 1317 (5th Cir. 1971); see also
U.S. Const. art. I, § 8, cl. 4; Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972)
(“plenary congressional power to make policies and rules for exclusion of aliens
has long been firmly established”). We have no authority to construe away the
unambiguous residency requirements of § 1401. See Montana v. Kennedy, 366
U.S. 308, 314 (1961). Accordingly, we conclude that Defendant cannot claim
derivative citizenship through his mother.
II. Citizenship Under 8 U.S.C. § 1431Defendant next asserts that he automatically became a citizen by operation
of 8 U.S.C. § 1431. But we decline to address this issue on appeal because
Defendant did not raise it in the district court. See United States v. Mora, 293
F.3d 1213, 1218 (10th Cir. 2002).
III. Due Process
Defendant also claims that the district court erred in failing to dismiss the
indictment on the ground that his due process rights were violated at the
underlying deportation hearing because he was not advised of his right to apply to
stay in the United States.
“A defendant may collaterally challenge a deportation hearing in an 8
U.S.C. § 1326 prosecution if the defendant can show that the deportation hearing
was fundamentally unfair and deprived the alien of the right to judicial review.”
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United States v. Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994); see also
United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). Furthermore, this
court has held that an immigration judge, when aware of information indicating
that an individual may be eligible for relief from deportation, is required to
inform that individual of his apparent eligibility for relief. United States v.
Aguirre-Tello, 324 F.3d 1181, 1191 (10th Cir. 2003). “To succeed in this
collateral challenge, however, defendant . . . must show that he was prejudiced
and that he was thereby deprived of his right of direct appeal.” Id. at 1192. To
demonstrate prejudice, Defendant must show that “there is a reasonable
probability that [he] would have obtained relief from deportation” if he had been
informed of his right to seek relief. Id. at 1193-94.
Relying on INS v. St. Cyr, 533 U.S. 289 (2001), Defendant contends that he
would have been eligible for relief at the time of his deportation under laws that
were in effect at the time of the immigration hearing. In St. Cyr the Supreme
Court held that the repeal of § 212(c) of the Immigration and Nationality Act
(INA) (allowing for a broad discretionary waiver of deportation by the Attorney
General) would not be applied retroactively so as to foreclose § 212(c) relief for
aliens whose convictions were obtained through plea agreements prior to the
repeal of § 212(c). Id. at 326. Although Defendant essentially concedes (as he
must) that he would not have been eligible for § 212(c) relief due to his inability
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to satisfy the residency requirements of that section, he asserts that he would have
been eligible for relief under another since-repealed statute which was in effect at
the time he pleaded guilty. Specifically, he claims that he would have been
eligible for relief under provisions of § 244 of the INA, formerly codified at 8
U.S.C. §1254(a) and (e). Defendant also claims that he qualified for relief under
§ 212(h) of the INA, codified at 8 U.S.C. § 1182(h).
The district court ruled that although Defendant had not been informed of
his eligibility to seek relief from deportation, he had not made an adequate
showing of prejudice. It pointed out that he had not offered any evidence relating
to §§ 1182(h)(1)(B) and 1254(a), (e) at the hearing on the motion to dismiss the
indictment. “Whether the district court erred in failing to dismiss the indictment
due to alleged violations of due process in the underlying immigration
proceedings is a mixed question of law and fact that we review de novo.”
United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998).
We agree with the district court that Defendant has not met his burden of
showing a reasonable probability that he would have obtained relief under
§ 212(h). That provision authorizes the Attorney General to waive the application
of certain provisions making aliens ineligible for visas or admission (including
conviction of certain crimes) “in the case of an immigrant who is the . . . son . . .
of a citizen of the United States . . . if it is established to the satisfaction of the
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Attorney General that the alien’s exclusion would result in extreme hardship to
the United States citizen.” Defendant asserts that his parents (including his
citizen mother) were going to suffer extreme hardship as a result of the
deportation simply because he would be separated from them. This is not
sufficient to show extreme hardship. See Amaya v. INS, 36 F.3d 992, 995 (10th
Cir. 1994).
Similarly, we agree with the district court that Defendant did not make a
sufficient showing that he would have obtained relief under § 1254. Under
§ 1254(a)(1) the Attorney General had discretion to suspend deportation of an
individual who
has been physically present in the United States for a continuous
period of not less than seven years immediately preceding the date of
[the] application, and proves that during all of such period he was
and is a person of good moral character; and is a person whose
deportation would, in the opinion of the Attorney General, result in
extreme hardship to the alien or to his spouse, parent, or child, who
is a citizen of the United States or an alien lawfully admitted for
permanent residence.
8 U.S.C. § 1254(a) (1994). Again, on the issue of extreme hardship Defendant
advances only that he would have been separated from his family.
As for §1254(e), the Attorney General was given discretion to permit an
alien subject to deportation to “depart voluntarily from the United States at his
own expense in lieu of deportation if such alien shall establish to the satisfaction
of the Attorney General that he is, and has been, a person of good moral character
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for at least five years immediately preceding his application for voluntary
departure.” 8 U.S.C. § 1254(e)(1) (1994). But that provision was not available to
“any alien who is deportable because of conviction for an aggravated felony.” Id.§ 1254(e)(2). Defendant was deported after being convicted of an aggravated
felony and was consequently not eligible for relief under § 1254(e).
Because Defendant has not made an adequate showing of prejudice, we
conclude that the district court properly refused to dismiss the indictment. We
affirm the district court’s refusal to dismiss the indictment against Defendant and
therefore AFFIRM the judgment and sentence below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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