United States v. Arturo Cisneros-Flores

FILED
NOT FOR PUBLICATION JAN 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50627
Plaintiff - Appellee, D.C. No. 3:09-cr-01975-GT-1
v.
MEMORANDUM *
ARTURO CISNEROS-FLORES,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-50628
Plaintiff - Appellee, D.C. No. 3:10-cr-00914-LAB-1
v.
ARTURO CISNEROS-FLORES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Argued and Submitted October 12, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FERNANDEZ and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.**
In this consolidated appeal, Arturo Cisneros-Flores challenges his conviction
following a conditional guilty plea to illegal entry after deportation, in violation of
8 U.S.C. § 1326. Cisneros also challenges the district court’s revocation of his
supervised release from a prior § 1326 conviction. Both challenges are based on
alleged due process violations resulting from denial of counsel at his 1997
deportation proceeding. Cisneros contends that he should have been told, by
counsel or by the immigration judge (“IJ”), of the possibility that he could avoid
deportation by marrying his girlfriend. We affirm.
Cisneros first came to the United States from Mexico when he was 20 years
old, in about 1987. He entered without inspection and began living in Oakland,
California. He was homeless for several years, and was convicted of several
misdemeanor offenses for petty theft and drug possession. In 1994, Cisneros
became romantically involved with Tina Gomez, a United States citizen, and began
**
The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, sitting by designation.
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raising her three children with her. He fathered a child with her in 1999, but that
child was given up for adoption.
Cisneros has been deported at least eight times since 1995. On January 14,
1997, Cisneros appeared without counsel in front of the immigration judge (“IJ”)
for a hearing in what was at least his third deportation proceeding. The IJ told
Cisneros that he could have an attorney represent him if he wished, confirmed that
Cisneros had received the court’s lawyer list, and confirmed that he had been
informed of his appellate rights. He asked Cisneros if he wanted time to find a
lawyer, and Cisneros said yes. The IJ continued the hearing for two weeks to
January 29, 1997.
Cisneros appeared at the January 29, 1997 hearing, again without counsel.
The IJ noted that Cisneros had made a request for a bond hearing, but told Cisneros
that “we’re not here for that reason[] today.” The IJ explained that Cisneros could
present evidence at the hearing, and that the government attorney could present
evidence against him, and proceeded with the deportation hearing without
inquiring whether Cisneros still wanted an attorney.
After being removed, Cisneros reentered the country without the Attorney
General’s permission. He was arrested, and on December 2008, Cisneros pled
guilty to being a deported alien found in the United States. He was sentenced to 30
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days imprisonment. In June 2009, after being removed and again arrested for
reentering without permission, Cisneros pled guilty to being a deported alien found
in the United States in violation of 8 U.S.C. § 1326. He was sentenced to 8 months
imprisonment and 3 years of supervised release, and he was again removed.
On January 27, 2010, Cisneros was again found in the United States and
arrested. He was charged with illegal reentry after deportation in violation of 8
U.S.C. § 1326(a) and (b). Cisneros moved to dismiss the indictment on the ground
that the IJ in the 1997 deportation proceeding had denied him his right to counsel
and failed to advise him of potential relief. He argued that the January 1997
deportation hearing was “fundamentally unfair” because the IJ failed to (1) advise
him that he could adjust his status in proceedings based on his relationship with his
United States citizen “common-law spouse,” and (2) find that he had made a
knowing and voluntary waiver of his right to counsel. He argued that he need not
show actual prejudice from the denial of counsel, but that he was prejudiced
because an attorney would have advised him to formalize his common-law
marriage which would have offered a basis for adjustment of status under INA
§ 245(d).
The district court denied Cisneros’ motion to dismiss, and Cisneros entered a
conditional guilty plea pursuant to an agreement with the government. The District
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Court sentenced him to 16 months’ imprisonment, to be followed by three years of
supervised release. His supervised release from his 2009 conviction was also
revoked, and he was sentenced to an additional consecutive term of 12 months on
his 2009 conviction. Cisneros appeals both the new 2010 conviction and his
sentence on the 2009 supervised release revocation.
The denial of a motion to dismiss an indictment is reviewed de novo when,
as here, the motion “is based on alleged due process defects in the underlying
deportation proceeding.” United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th
Cir. 2009).
1. Cisneros first argues that the IJ should have advised him that he might
be entitled to an adjustment of status due to his relationship with Gomez. This
argument fails.
An IJ must “inform the respondent [in a deportation hearing] of his apparent
eligibility to apply for any of the benefits [of relief from deportation] enumerated
in this paragraph and . . . afford him an opportunity to make application therefor
during the hearing.” Moran-Enriquez v. I.N.S., 884 F.2d 420, 422 (9th Cir. 1989)
(quoting 8 C.F.R. § 242.17(a) (1988)). However, the IJ is under no duty to “act
creatively to advise an immigrant of ways in which his legal prospects at
forestalling deportation might improve with fundamental changes in his status.”
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Moriel-Luna, 585 F.3d at 1198. Moreover, the “IJ had no duty to inform him of
relief for which he was not eligible . . . .” United States v. Lopez-Velasquez, 629
F.3d 894, 899 (9th Cir. 2010) (en banc) (holding “that an IJ's duty is limited to
informing an alien of a reasonable possibility that the alien is eligible for relief at
the time of the hearing”).
Here, the IJ was not required to advise Cisneros of a possible adjustment of
status. The facts as presented to the IJ were that Cisneros had a “girlfriend,” and
he expressly stated he was not married to her. Contrary to Cisneros’s contentions
in his briefs, he did not at any time advise the IJ that he planned on marrying
Gomez. “We do not require IJs to speculate about the possibility of anticipated
changes of circumstances and advise aliens of facts not suggested in the record.”
Moriel-Luna, 585 F.3d at 1197. The IJ had no duty to advise Cisneros about the
possibility of adjusting his status should he marry his girlfriend.
2. Cisneros next argues that he was deprived of his Fifth Amendment
rights because he was denied counsel at his 1997 removal hearing without
affirmatively waiving his right to counsel. Although the government apparently
concedes that Cisneros’ Fifth Amendment rights were violated by deprivation of
counsel, and the district court agreed, it is not clear that his rights were actually
violated.
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A respondent in immigration proceedings has a Fifth Amendment right to
counsel at no cost to the government. Ram v. Mukasey, 529 F.3d 1238, 1241 (9th
Cir. 2008). We have “reiterated many times that an alien cannot appear pro se
without a knowing and voluntary waiver of the right to counsel.” Id. at 1242(internal quotation omitted). This means that the IJ “at a minimum . . . must [(1)]
inquire whether the petitioner wishes counsel, [(2)] determine a reasonable period
for obtaining counsel, and [(3)] assess whether any waiver of counsel is knowing
and voluntary.” Id. at 1241 (quoting Tawadrus v. Ashcroft, 364 F.3d 1099, 1103
(9th Cir.2004)). We have strictly enforced these requirements and required an IJ to
elicit an express waiver of the right to counsel by asking the alien if he desired to
continue pro se and “direct[ing] . . . questions to [alien] concerning the
implications of proceeding without an attorney.” Id. at 1242 (internal quotation
omitted).
This is not to imply an alien can “game the system” and postpone
deportation proceedings indefinitely simply by not obtaining counsel and refusing
to waive his right to counsel. After waiting “a reasonable period for obtaining
counsel,” the IJ can proceed even though the alien is not represented. “However,
in order to proceed without counsel, an IJ must comply with the requirements of
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Tawadrus, and determine, in the absence of a showing of good cause for an
additional continuance, that the right to counsel has been forfeited.” Id.Here, the IJ did not expressly make such a determination. That is not to say
it would have been error to proceed without giving Cisneros additional time to
obtain counsel, especially since Cisneros did not request additional time. The IJ
had previously given Cisneros two weeks to obtain counsel after ensuring that
Cisneros already had the list of free attorneys. Cisneros does not argue that he was
prevented from obtaining counsel during that time, or offer any explanation for
why he failed to obtain counsel. “Absent a showing of clear abuse, we typically do
not disturb an IJ's discretionary decision not to continue a hearing.” Biwot v.
Gonzalez, 403 F.3d 1094, 1099 (9th Cir. 2005). Had the IJ refused to grant
Cisneros additional time to obtain counsel, there is no indication it would have
been clear error.
However, even if we assume, as the district court did, that Cisneros was
denied counsel, that does not end the inquiry or entitle Cisneros to relief. We have
denied challenges to underlying removals where the aliens alleged violations of the
right to counsel in the underlying removal proceedings unless the alien can show
prejudice. United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986) (even
assuming the defendant had been denied counsel, he did not show that this denial
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“actually had the potential for affecting the outcome of the deportation
proceedings”); United States v. Villa Fabela, 882 F.2d 434, 439-40 (9th Cir. 1989),
overruled in part on other grounds by United States v. Proa-Tovar, 975 F.2d 192,
595 (9th Cir. 1992) (en banc) (IJ’s alleged failure to advise of the available of free
legal service programs did not entitle defendant to relief because he had not
“demonstrat[ed] that the claimed procedural flaws in his deportation proceeding
were prejudicial” and he was not eligible for relief from removal). Taken together,
these cases require Cisneros to show he suffered prejudice as a result of the denial
of counsel in order to obtain relief. To show prejudice, Cisneros must show that he
had “plausible grounds from relief from deportation.” United States v.
Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998).
Cisneros contends that the absence of an attorney “potentially affected the
outcome of the proceedings,” because – given his long-term, committed
relationship in 1997 – an attorney would have advised him to get married and
thereby open an avenue for relief. Cisneros could not have shown plausible
grounds for relief from deportation because he was not eligible for relief. He could
not have adjusted his status to that of a lawful permanent resident until he actually
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married Gomez, and marriage was neither imminent nor reasonably certain at the
time of his removal hearing in 1997.1 Thus, Cisneros cannot show prejudice.
3. Cisneros also challenges the revocation of his supervised release from
his 2009 conviction. In making his challenge he asks us to “create an exception to
the general rule articulated in” United States v. Simmons, 812 F.2d 561 (9th Cir.
1987), that a defendant may not challenge the validity of his conviction on direct
appeal of a supervised release revocation sentence. “The conviction may be
collaterally attacked only in a separate proceeding under 28 U.S.C. § 2255. . . .”
Id. at 563. His rationale is that because the 2009 conviction was based on the same
underlying 1997 deportation as the 2010 conviction, if that deportation is
invalidated due to a deprivation of counsel then he cannot be guilty of the 2009
incident either.
We decline to create such an exception. Cisneros voluntarily waived his
right to challenge the 2009 conviction and sentence, and he will be held to that
waiver even if he challenges a later conviction. Furthermore, for the reasons we
affirm Cisneros’ 2010 conviction, we would also affirm his 2009 conviction were
we to reach its merits.
1
Some 14 years after the claimed deprivation of counsel, Cisneros
remains ineligible for an adjustment of status because he is still not married.
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The IJ did not have a duty in 1997 to advise Cisneros to get married so that
he could adjust his status. Even if we assume the IJ violated Cisneros’ Fifth
Amendment right to counsel in his 1997 deportation hearing, he cannot show
prejudice. Cisneros has waived his right to challenge his 2009 conviction, and in
any event, there is no basis for his challenge to the revocation of supervised release
because we do not invalidate the 1997 deportation.
AFFIRMED.
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