Opinion
Criminal No. DKC 2000-0371.
December 20, 2000.
MEMORANDUM OPINION
Presently pending and ready for resolution is Defendant's motion to dismiss. The issues are fully briefed, including submission of supplemental memoranda after a hearing held on December 11, 2000. For the following reasons, the motion will be denied.
Carlos Alberto Suazo-Martinez, Defendant, is charged in a single count indictment with reentry after deportation for an aggravated felony in violation of Title 8 U.S.C. § 1326 (a) and (b)(2). He seeks dismissal of the indictment on the basis of the alleged unfairness of his deportation hearing, citing United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
I. Background
Defendant first came to the United States in 1979, at age 15, as a lawful permanent resident. On September 30, 1996, Mr. Suazo-Martinez pled guilty to corporal injury to spouse/cohabitant in California and was sentenced to three years in prison. In May, 1997, the INS commenced deportation proceedings, and Mr. Suazo-Martinez finished his sentence in February 1998. At his deportation hearing on April 18, 1998, he admitted both his alienage and the prior conviction, but argued that he would not have pled guilty if he had known of the consequences. He also expressed concern that, if deported, he would be unable to care for his children. An interpreter was present and, although not represented by counsel, Mr. Suazo-Martinez knew of his right to counsel and had been provided a list of attorneys. Defendant was advised of his right to appeal, which he reserved at the time, but was told that he was not eligible to seek other relief. A notice of appeal was filed, but he failed to file a timely brief. A later filed brief was rejected as untimely. Bond was denied due to the seriousness of the crime. He was deported September 18, 1998.
It appears that Defendant entered the guilty plea on the same day that Congress enacted IIRIRA, but the plea was earlier in the day. For purposes of this opinion, the court will assume that the plea was entered while AEDPA was in effect, and prior to IIRIRA's passage. If, indeed, the plea was effective after passage of IIRIRA, Defendant would have even less about which to complain.
At the hearing, Defendant conceded that he had no challenge to the waiver of counsel at the deportation hearing.
Defendant filed for cancellation of removal on August 11, 1998, but the form was returned to him, stamped "rejected."
II. Framework for Discussion:
Collateral Attack on Deportation Proceedings
In Mendoza-Lopez, 481 U.S. at 839, the Supreme Court held that an alien charged under § 1326 may attack, collaterally, the deportation order underlying the offense. In the absence of effective judicial review, a deportation proceeding and order, which suffered from fundamental unfairness, cannot be used to support a criminal conviction. The government did not challenge, in the Supreme Court, the lower court holding that the deportation proceeding in that case had been fundamentally unfair, making the deportation order unlawful. In response, Congress enacted 8 U.S.C. § 1326 (d). It provides:
Defendant argued at the hearing that, to the extent that subsection (d) goes beyond Mendoza-Lopez, its application to him would violate due process because his underlying conviction predated enactment of that section. Subsection (d), however, was enacted as part of AEDPA, and not IIRIRA. In any event, as recognized in Defendant's post hearing memorandum, other courts have concluded that the statute merely codifies the Court's decision. See United States v. Lopez-Vasquez, 227 F.3d 476, 483 n. 13 (5th Cir. 2000).
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) of this section unless the alien demonstrates that —
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
The collateral challenge must demonstrate a variety of factors. Not only must the deportation proceeding have been "fundamentally unfair," but the alien must also demonstrate that the hearing effectively eliminated the right to challenge the hearing by means of judicial review and that the deficiencies caused actual prejudice.
III. Analysis
There are two aspects of immigration law that bear on Defendant's contention that his deportation hearing was flawed. First, the definition of those convictions which subject a person to deportation (or removal) has changed, becoming more extensive. Second, the availability of discretionary relief has been modified on several occasions. The interplay of those two aspects of the law must be analyzed to understand Defendant's contentions. Once that analysis is complete, the retroactivity provisions of the respective laws come into play, and, finally, the due process issue can be addressed. As will be seen, at the time of his guilty plea, the defendant's conviction did not qualify as an "aggravated felony" and thus would not have subjected him to deportation. If it had, however, there would have been no avenue for discretionary relief as the AEDPA was in effect. Congress clearly stated that the changed definition of a deportable conviction in IIRIRA is to apply regardless of the date of the conviction. What remains unclear, on the other hand, is whether the amendments to discretionary relief were meant to apply retroactively. Because the only change that affected Mr. Suazo-Martinez was the definition of a deportable conviction, he has no due process argument.
Prior to April 24, 1996, a person was deportable upon conviction for (1) crimes of moral turpitude committed within five years of entry, which resulted in confinement for one year or longer; (2) multiple crimes of moral turpitude; (3) aggravated felony; (4) violation of any law or regulation relating to controlled substances; (5) certain firearms offenses; and (6) miscellaneous crimes, i.e., espionage, sabotage and/or treason and sedition. See 8 U.S.C. § 1251(a)(2); INA § 241(a)(2) (1995). Until April 1, 1997, an "aggravated felony" included "a crime of violence (as defined in section 16 of Title 18, but not a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years." 8 U.S.C. § 1101 (a)(43)(F) (1996). Under former 8 U.S.C. § 1182 (c), INA § 212(c) (1995), the Attorney General had discretion to waive the grounds for deportation under certain conditions, including domicile for seven years and conviction for something other than an "aggravated felony" and service of a term of imprisonment of less than five years. Denial of discretionary relief could be challenged in the court of appeals. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") expanded the list of convictions ineligible for § 212(c) relief and declared any "aggravated felony" to be ineligible, regardless of the length of the sentence. AEDPA, Pub.L. No. 104-132, 110 STAT 1277-78 (1996). According to one treatise, "This essentially bars § 212(c) relief for virtually anyone convicted of a crime." 1 Charles Gordon, Stanley Mailman, Stephen Yale Loehr, Immigration Law and Procedure § 2.04[14][b][v](Matthew Bender rev. ed. 2000). Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") on September 30, 1996, with an effective date of April 1, 1997. A form of discretionary relief is now called "cancellation of removal." It replaced § 212(c) relief and applies to resident aliens with domicile of at least five years who have not been convicted of an aggravated felony. IIRIRA, Pub. L. No. 104-208, § 304, 110 STAT 3009, 587-97 (1996).
The statutory definition of "aggravated felony" was amended by the AEDPA in ways not relevant to this case.
IIRIRA is part of the Omnibus Appropriations Act 1997, Pub.L. No. 104-208, §§ 321, 322, 110 STAT 3009, 627-28 (1996).
The transitional rules are not relevant to this case because deportation proceedings were not commenced until after the effective date.
For the first time under IIRIRA, Defendant's conviction qualifies both as a deportable domestic violence conviction and as an "aggravated felony" under the current law, 8 U.S.C. § 1227 (a)(2)(E) and (a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43). Under these circumstances, Defendant asserts that IIRIRA's abrogation of § 212(c) discretionary relief cannot fairly be applied to him and that he received erroneous advice at the immigration hearing, thus rendering the proceeding fundamentally unfair. He contends, by reference to cases such as Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000) and St. Cyr v. I.N.S., 229 F.3d 406 (2d Cir. 2000), that a change in the availability of discretionary relief would upset his "reasonable, settled expectations and change the legal effect of prior conduct." Accordingly, he argues that he should have had § 212(c) relief available and the immigration judge's erroneous advice rendered the proceeding fundamentally unfair and effectively deprived him of the incentive to exhaust administrative remedies or seek judicial review.
The flaw in this argument is that the statutory alteration of discretionary relief in IIRIRA is not what deprived him of that avenue of hope to avoid deportation. Rather, because his conviction occurred after the enactment of AEDPA, no discretionary relief would have been available in any event if deportation was due to a qualifying conviction. The statutory amendment that made his deportation possible was the change in the definition of aggravated felony. That provision is undeniably retroactive.
IIRIRA included a provision explicitly applying the current definition of aggravated felony to a previous conviction: "Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of the enactment of this Paragraph." Section 321(c), entitled "Effective Date" adds: "The amendments made by this aggravated felony section shall apply to actions taken on or after the date of the enactment of this Act regardless of when the conviction occurred."
Thus, it does not matter when the IIRIRA-defined aggravated felony conviction occurred, as long as the removal/deportation action is taken after September 30, 1996. Sousa v. I.N.S., 226 F.3d 28, 32-33 (1st Cir. 2000); Aragon-Ayon v. I.N.S., 206 F.3d 847, 852-53 (9th Cir. 1999); Choeum v. I.N.S., 129 F.3d 29, 37 (1st Cir. 1997); Mendez-Moralez v. I.N.S., 119 F.3d 738, 739 (8th Cir. 1997). Accordingly, the immigration judge was correct to advise Mr. Suazo-Martinez that discretionary relief was unavailable and there was nothing fundamentally unfair about the deportation hearing.
Even if the immigration judge had incorrectly advised Mr. Suazo-Martinez about the availability of discretionary relief, his collateral attack on the deportation order would fail. Long before AEDPA and IIRIRA, the Court of Appeals for the First Circuit rejected an argument functionally identical to the one made here. In United States v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993), the court concluded that the erroneous advice provided by the immigration judge as to the availability of § 212(c) relief "was not the type of error that provides any basis for collateral attack on the judge's deportation order in a subsequent criminal prosecution. . . ." The court explained:
Here, in contrast to the situation in Mendoza-Lopez, the immigration judge's putatively erroneous decision did not "effectively" rob Vieira of his right to review. Vieira filed a notice of appeal. He later deliberately withdrew the appeal. He was represented by counsel throughout. As Vieira voluntarily abandoned his right to obtain review of the deportation order, we see no way to hold that he was deprived of meaningful review of the administrative proceeding contrary to the due process clause.
Defendant's attempts to distinguish Vieira are unavailing. The defendant was not represented by counsel, but knew of and waived his right to counsel. Vieira tried to challenge the immigration judge's statement on the availability of § 212(c) relief, but withdrew the appeal before resolution. Defendant here told the immigration judge that he would not have pled guilty had he known of the consequences, thus raising the detrimental reliance argument that underlies the retroactivity problem dealt with above. He reserved the right to appeal, but failed to follow through. As in Vieira, the deportation proceedings did not deprive him of either administrative remedies or judicial review. Nor is the purported error in the advice concerning discretionary relief the type of error that provides a basis for collateral attack.
A defendant must also show prejudice from the asserted procedural defect. United States v. Garcia-Martinez, 228 F.3d 956, 963 (9th Cir. 2000). As stated therein, "[t]o meet this burden, . . . [the defendant] must demonstrate plausible grounds for relief from deportation." When deportation is a foregone conclusion, an alien cannot show prejudice.
IV. Conclusion
For the foregoing reasons, Defendant's collateral challenge to his deportation order fails, and his motion to dismiss will be denied.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 20th day of December, 2000, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendant's motion to dismiss BE, and the same hereby IS, DENIED; and
2. The clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the parties.