Opinion
Civil Action No: SA-03-CR-0478-XR
February 9, 2004
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
On December 4, 2003, Defendant requested that this case be tried before the Court based on stipulated facts and the Defendant waived his right to a trial by jury. On December 11, 2003, a bench trial was held. Defendant Jose Manuel Trevino Zaragoza is charged in an indictment with illegal reentry into the United States under 28 U.S.C. § 1326(a) and (b)(2). Upon the conclusion of the trial, Defendant made a verbal motion for judgment of acquittal. Defendant's motion is based upon a collateral attack against his deportation proceedings. The Court invited the parties to submit briefing and took the motion under advisement. On December 18, 2003, and January 5, 2004, the government filed responses to Defendant's motion for acquittal (docket nos. 27 and 29). Defendant filed a written motion for acquittal, or in the alternative motion to dismiss indictment on December 19, 2003, (docket no. 28) and a response to the government's brief on January 7, 2004 (docket no. 30).
On January 21, 2004, this Court issued its Findings of Facts and Conclusions of Law (docket no. 31). After reviewing Defendant's Objections (docket no. 35), and Supplement to his Objections (docket no. 36), the Court issues this Amended Findings of Facts and Conclusions of Law.
Defendant argues that his deportation violatedhis constitutional right to due process because (1) the immigration judge should have allowed him to seek relief from deportation pursuant to 8 U.S.C. § 1182(c) or cancellation of removal pursuant to 8 U.S.C. § 1229b , and (2) his immigration counsel was inadequate.
Also known as § 212(c) relief.
Also known as a § 24OA request.
Defendant argues that given his family history, work history, education and other factors, it would have been likely that he would secured relief pursuant to § 212(c) or § 240A. Defendant argues that the Immigration Judge erred by applying the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) retroactively.
After hearing the evidence, the Court DENIES Defendant's motion for acquittal, or in the alternative motion to dismiss indictment (docket no. 28) and determines that Defendant is guilty beyond a reasonable doubt of violating 8 U.S.C. § 1326(a) and (b)(2). In accordance with the Federal Rules of Criminal Procedure 12 23, the Court enters these Findings of Fact and Conclusions of Law:
Findings of Fact
1. Jose Manuel Trevino Zaragoza was born in Coahuila, Mexico, on July 9, 1970. He is a citizen of Mexico.
2. He was admitted to the United States as a non-immigrant visitor in July 1976. He obtained lawful permanent resident status on July 7, 1979. Defendant attended public schools in San Antonio, Texas. His daughter, mother, grandmother and four siblings are citizens of the United States. Defendant lived and worked in the San Antonio, Texas area until his deportation.
3. On July 9, 1991, Jose Manuel Trevino Zaragoza was convicted of the misdemeanor offense of possession of less than two (2) ounces of marijuana in County Court 4, Bexar County, Texas.
4. On May 11, 1993, Trevino pled guilty and was convicted of the felony offense of possession of less than 28 grams of cocaine in the 175th District Court, Bexar County, Texas. He was sentenced to 10 years of probation. On May 23, 1996, the Court ordered his probation revoked and sentenced him to 6 years confinement.
5. The felony offense of possession of less than 28 grams of cocaine could be punished by confinement in the Texas Department of Criminal Justice Institutional Division for a term of ten (10) years and is a violation under the Controlled Substances Act. 28 U.S.C. § 801 et seq. It qualifies as an aggravated felony under 8 U.S.C. §
6. To be eligible for § 212(c) relief, a non-citizen must have been a permanent resident alien, have had a lawful unrelinquished domicile in the United States of seven consecutive years, and not have served a term of imprisonment greater than five years as a result of conviction for one or more aggravated felonies as defined under the act. See 8 U.S.C. § 1182(c)(1994). Defendant was a permanent resident alien, had a lawful unrelinquished domicile in the United States of seven consecutive years, and had not served a term of imprisonment greater than five years as a result of conviction for one or more aggravated felonies as defined under the act. At the time he was convicted of possession of cocaine in 1993, Defendant was eligible to apply for relief from deportation under § 212(c).
7. Defendant failed to introduce any evidence that he pled guilty with the expectation that despite the conviction, he would remain eligible for any discretionary relief.
8. On November 14, 1996, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing. Defendant was charged with being deportable under 8 U.S.C. § 1251(a)(2)(B)(i) (controlled substance violation). The Hearing was scheduled for May 12, 1997. Defendant was served with the Order and Notice on May 12, 1997.
9. On May 12, 1997, an Immigration Judge continued the deportation hearing to June 23, 1997, to allow the Defendant an opportunity to retain counsel.
10. On June 23, 1997, Defendant and his attorney, Salvador Colon, appeared before an Immigration Judge and requested another continuance. The request for continuance was granted and the Hearing was rescheduled to August 26, 1997.
11. On August 26, 1997, the deportation hearing was opened and Defendant's counsel requested additional time so that various documents could be reviewed. Defendant's counsel was asked by the Immigration Judge that if the Defendant was found deportable, would he be seeking any form of relief. Defendant's immigration counsel responded that Defendant would be seeking cancellation. The Immigration Judge advised counsel to be prepared to present case law as to why Defendant was eligible for such relief. Thereafter, the hearing was continued to September 22, 1997.
12. On September 22, 1997, the hearing resumed and Defendant admitted that he was convicted of the felony offense of possession of less than 28 grams of cocaine in the 175th District Court, Bexar County, Texas. He admitted that he was sentenced to 10 years of probation, and that on May 23, 1996, the Court ordered his probation revoked and sentenced him to 6 years confinement. The Immigration Judge found that Defendant was deportable. Defendant sought cancellation of the removal, which the Immigration Judge denied stating that Defendant was "ineligible for cancellation of removal because his charging document predates April 1, 1997 and he is not in removal proceedings; therefore, he is statutorily ineligible to apply for or receive cancellation of removal." Defendant's counsel did not seek any other form of relief.
13. On October 14, 1997, Defendant filed his Notice of Appeal. In that Notice, Defendant raised only one reason for his appeal stating: "It is a violation of Respondent's Equal Protection Rights for him to be precluded from applying for Cancellation of Deportation, where a similarly situated Respondent where proceedings were begun after April 1, 1997, would be permitted to so apply."
14. On March 12, 1998, the Board of Immigration Appeals dismissed Defendant's appeal. The BIA found that . . . cancellation of removal is a form of relief that is available in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a, and is inapplicable in deportation proceedings under section 242 of the Act. . . . Despite his claim of eligibility for a section 212(h) waiver on appeal, the respondent's controlled substance conviction precludes him from adjustment of status in conjunction with a waiver under 212(h) . . . The respondent is inadmissible to the United States under . . . 8 U.S.C. § 1182(a)(2)(A)(i)(D), as an alien who has been convicted of a controlled substance violation. An alien who is inadmissible under this section may seek a waiver of inadmissibility under section 212(h) . . . insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana. Since the respondent's offense relates to possession of cocaine, he is ineligible for this waiver.
At the time of his conviction, he was sentenced to ten years probation. When his probation was revoked, he was sentenced to six years imprisonment. The only reason he did not serve those six years is because he was deported two years later.
Although the Immigration Judge cautioned the Defendant as to the efficacy of putting on various witnesses, the Defendant was not denied the opportunity to do so at this hearing. In fact, the only substantive action that took place was the grant of a continuance.
Finally, the BIA concluded it did not have jurisdiction regarding the equal protection arguments raised.
15. On April 8, 1998, U.S. District Judge Lee H. Rosenthal denied Defendant's appeal of the BIA decision. Citing AEDPA and IRRIRA, Judge Rosenthal held that the Court did not have subject matter jurisdiction over administrative deportation and exclusion orders.
16. With the exception of the Defendant's ineffective assistance of counsel argument, he exhausted his administrative remedies.
17. On April 15, 1998, the INS issued a Warrant of Removal/Deportation for Trevino. On April, 16, 1998, Trevino was deported to Mexico. at the Hidalgo, Texas, Port of Entry.
18. Thereafter, Defendant was never granted permission for admission into the United States from either the Attorney General of the United States or from the Secretary of Homeland Security.
19. On July 18, 2003, Defendant was found within the Western District of Texas.
20. On December 5, 2003, Defendant's brother, Hector, was granted a 212(c) waiver after being charged in removal proceedings with having an aggravated felony conviction. Although the exact felony is unknown, the record establishes it as a crime of violence. The Immigration Court opined that the equities in Hector's case were both "unusual and outstanding to the point of counterbalancing his criminal record in the U.S."
Conclusions of Law
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
Collaterally Attacking the Deportation
1. If a defendant can show that the underlying deportation was improper, the government cannot use it to prove the requisite elements of the offense of illegal reentry. U.S. v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999).
2. A defendant may collaterally attack a deportation proceeding in a later criminal proceeding if the defendant can show: (1) that the deportation hearing was fundamentally unfair; (2) that the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the deportation; and (3) the procedural deficiencies caused him actual prejudice. U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987); U.S. v. Lopez-Vasquez, 227 F.3d 476 (5th Cir. 2000); Benitez-Villafuerte, 186 F.3d at 658.
3. Congress has also provided for this situation. In 8 U.S.C. § 1326(d)(l-3), an alien collaterally attacking an underlying deportation order must demonstrate: (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. Thus, the Defendant can collaterally attack his deportation proceedings in this criminal action for his illegal reentry.
A Due Process Violation Did Not Occur When the Immigration Judge Denied the Defendant an Opportunity to Present Evidence
1. The Defendant argues that the Immigration Judge denied him a fair opportunity to be heard on his request for relief when he was not allowed to present evidence demonstrating his eligibility. The Fifth Circuit has held that when a defendant is denied the opportunity to be heard and to present evidence, the Due Process Clause may be implicated. Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000).
2. However, in the context of discretionary relief, the Fifth Circuit has considered a similar situation where the failure to advise an alien of eligibility for discretionary relief does not implicate the Due Process Clause. See United States v. Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003); U.S. v. Calderon-Pena, 339 F.3d 320 (5th Cir. 2003). In Calderon-Pena, the Fifth Circuit held that even when an immigration judge violated an agency regulation requiring the judge to inform the alien of his or her eligibility for discretionary relief, the violation did not rise to the level of a Due Process violation. Id. at 324.
3. Although the Government stressed that the Defendant's attorney appealed the denial of § 212(c) relief, the Board of Immigration's decision states that the Defendant was contesting his denial of § 240A relief and that because he was in deportation proceedings, rather than removal proceedings, he was ineligible for relief. The transcript also records that the Immigration Judge found the Defendant statutorily ineligible to receive cancellation of removal.
4. Thus, it appears that the Defendant's procedural due process rights were not violated in that the Defendant sought cancellation relief from the Immigration Judge. The request for relief was denied and this denial was appealed.
5. Although Toscano-Gil, cites Molina v. Sewell, 983 F.2d 676 (5th Cir. 1993), for the proposition that an alien not given the opportunity to put on evidence establishes a violation of due process, Molina actually found that an immigration judge's failure to advise the defendant of his rights violated the due process clause. Thus, in the context of discretionary relief, the denial of the relief does not implicate the due process clause and neither will the judge's refusal to hear more evidence on the matter. See Lopez-Ortiz, 313 F.3d 225.
The Denial of Discretionary Relief Does Not Implicate the Due Process Clause
1. At the time Defendant was convicted of possession of cocaine in 1993, he was eligible to apply for relief from deportation under § 212(c). Effective April 26 1996, AEDPA amended § 212(c) to preclude relief to non-citizens convicted of a number of offenses, including any conviction relating to violation of a controlled substance statute. Thereafter, effective April 1, 1997, § 212(c) was repealed by IIRIRA. IIRIRA also instituted a new form of relief named cancellation of removal. See 8 U.S.C. § 1229b (otherwise known as § 240A).
2. Defendant argues that the deportation proceedings were fundamentallyunfairbecause he was improperly served with an Order to Show Cause that instituted deportation proceedings rather than a charging document that instituted removal proceedings. Defendant seems to be arguing that under the law then in existence, he was eligible for § 240A relief rather than § 212(c) relief, although both forms of relief are discretionary in nature.
3. In the alternative, the Defendant argues he was improperly denied § 212(c) relief.
4. Before the U.S. Supreme Court's decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), immigration judges oftentimes held that an immigrant placed in deportation or removal proceedings after April 1, 1997, could not apply for § 212(c) relief. However, in St. Cyr the United States Supreme Court held that aliens who were removable under IIRIRA were still eligible to apply for a § 212(c) waiver if their convictions were obtained through plea agreements and notwithstanding those convictions the alien would have been eligible for § 212(c) relief at the time of their plea. The Court reasoned that the repeal of 212(c) relief should not apply retroactively to individuals who participated in plea bargaining under the impression that they could eventually apply for such relief, finding that the elimination of such relief "has an obvious and severe retroactive effect." St. Cyr, 533 U.S. at 325.
5. Defendant does not fall within the class of individuals who, according to St. Cyr, were deprived of consideration for § 212(c) relief because there is no evidence that he participated in his plea bargain under the impression that he could eventually apply for such relief. Thus, the Defendant's denial of § 212(c) relief does not violate due process of law.
6. Assuming arguendo that Defendant falls within the scope of St. Cyr, the removal proceedings were not fundamentally unfair because the Defendant cannot demonstrate that the hearing was fundamentally unfair. In Lopez-Ortiz the Fifth Circuit stated:
Fundamental fairness is a question of procedure. Removal hearings are civil proceedings, not criminal; therefore, procedural protections accorded an alien in a removal proceeding are less stringent than those available to a criminal defendant. The Supreme Court has stated that due process requires that an alien who faces deportation be provided (1) notice of the charges against him, (2) a hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard. The record establishes, and Lopez-Ortiz does not contest, that he was provided with these protections. Because he was provided with the protections mandated by the Supreme Court, Lopez-Ortiz's challenge of the fundamental fairness of his removal hearing rests on the Immigration Judge's error in not explaining his eligibility for § 212(c) relief.
Lopez-Ortiz presupposes that eligibility for discretionary relief under § 212(c) is an interest warranting constitutional due process protection. We disagree. St. Cyr's holding was not grounded in § 212(c) relief having the status of a constitutionally protected interest; rather, it was based on the Court's interpretation of IIRIRA. In fact, § 212(c) relief, because it is available within the broad discretion of the Attorney General, is not a right protected by due process.
This circuit has noted that § 212(c) relief "`was couched in conditional and permissive terms. As a piece of legislative grace, it conveyed no rights, it conferred no status,'" and its denial does not implicate the Due Process clause. Other circuits considering the effect of St. Cyr likewise have held that discretionary relief is not a vested right meriting due process protection (citations omitted).
7. Defendant's counsel recognizes the Fifth Circuit's opinion in Lopez-Ortiz, but forcefully argues that it was incorrectly decided, and that this District Court should follow other Court decisions finding that similar errors in immigration proceedings were fundamentally unfair. See e.g. U.S. v. Perez, 330 F.3d 97 (2d Cir. 2003); U.S. v. Aguirre-Tello, 324 F.3d 1181 (10th Cir. 2003); U.S. v. Frias-Gomez, 262 F. Supp.2d 11 (E.D. N.Y. 2003). Numerous courts have recently grappled with the issue of whether fundamental unfairness turns on the question of whether a defendant's procedural due process rights have been violated, or whether fundamental unfairness may also result when the removal order is based on an erroneous application of the law or substantive allegations. See e.g. U.S. v. Cottone, 244 F. Supp.2d 126 (E.D.N.Y. 2003); U.S. v. Torres, 268 F. Supp.2d 455 (E.D. Penn. 2003).
8. Here, it appears that the Defendant was denied relief under an erroneous application of the law in that he should have been in a removal proceeding rather than a deportation hearing.
9. Two previous decisions from the Western District of Texas held that fundamental unfairness results when a removal order is based on an erroneous interpretation of the law. See U.S. v. Girosky-Garibay, 176 F. Supp.2d 705 (W.D. Tex. 2001); U.S. v. Ojeda-Escobar, 218 F. Supp.2d 839 (W.D. Tex. 2002).
10. However, as noted by Judge Briones in U.S. v. Sotelo-Mendoza, 234 F. Supp.2d 671, 680 (W.D. Tex. 2002), the Fifth Circuit has clearly concluded that improper retroactive application of the IIRIRA amendments repealing § 212(c) relief is not a procedural defect that gives rise to a violation of due process. "Because the Court is bound by Fifth Circuit precedent on this issue, it cannot hold otherwise." Id. See also U.S. v. Calderon-Pena, 339 F.3d 320 (5th Cir. 2003) (violation of immigration agency regulation requiring immigration judge to inform an alien of eligibility for discretionary relief does not rise to the level of a due process violation).
11. It is within the discretion of the Attorney General to grant relief from deportation pursuant to § 212(c) or cancellation of removal pursuant to § 240A. See 8 U.S.C. § 1229b(a) ("The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien — (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.") (emphasis added).
12. Because Defendant was previously convicted of an aggravated felony, he would not have been entitled to § 240A relief. U.S. v. Caicedo-Cuero, 312 F.3d 697 (5th Cir. 2002); U.S. v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001); U.S. v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997). Although Defendant cites Matter of K-V-D-22 I. N. Dec. 1163 (BIA 1999), to demonstrate that the Board of Immigration Appeals distinguished Hinojosa-Lopez when determining the definition of an aggravated felony for immigration purposes, it also stands for the proposition that Immigration Judge's were applying Hinojosa-Lopez to cases such as his at that time. Thus, although the argument could be made that his state felony conviction may not have been considered an aggravated felony for deportation, this Court follows Fifth Circuit precedent and finds that in 1998 when Defendant was deported, his state felony conviction was considered an aggravated felony for deportation proceedings. It is important to note that neither an Immigration Judge nor the Board of Immigration Appeals considered the issue since the Defendant was denied on other grounds.
13. In the alternative, inasmuch as relief from deportation pursuant to § 212(c) or cancellation of removal pursuant to § 240 A is discretionary, any denial of such relief does not implicate the due process clause. Thus, although the Defendant argues that he should have been afforded § 240 A relief or in the alternative, that the denial of his § 212(c) relief was a violation of due process, the Fifth Circuit has held that the denial of discretionary relief will not rise to the level of a constitutional violation.
14. Further, any error in serving Defendant with an Order to Show Cause that instituted deportation proceedings, rather than a charging document that instituted removal proceedings, was harmless given that both sections are "couched in conditional and permissive terms."
The Ineffective Assistance of Counsel Claim Was Not Raised Below
1. Defendant also argues that his counsel was ineffective at his original deportation hearing and during the subsequent appeal to the Board of Immigration Appeals.
2. In a habeas proceeding, the Fifth Circuit has held that a failure to raise an ineffective assistance of counsel claim before the Board of Immigration Appeals deprives the district court of jurisdiction to consider the claim. Goonsuwan v. Ashcroft, 252 F.3d 383, 386 (5th Cir. 2001). Like in Goonsuwan, Defendant must exhaust his administrative remedies in order to collaterally attack his deportation. 8 U.S.C. § 1326(d)(1).
3. Although this Court finds it troubling that an attorney is charged with the responsibility of raising his or her own ineffective assistance at the Board of Immigration Appeal level in order to preserve the question for this Court, the Court is bound to follow Fifth Circuit precedent. Thus, since there is no evidence in the record that Defendant raised his ineffective assistance of counsel claim at the Board of Immigration Appeal, this Court cannot consider the argument.
Conclusion
1. Because Defendant fails to establish that the deportation hearing was fundamentally unfair, this Court need not consider the remaining elements of the three part test. U.S. v. Encarnacion-Galvez, 964 F.2d 402 (5th Cir. 1992).
2. Defendant's state drug felony conviction constitutes an aggravated felony under 8 U.S.C. § 1326(b)(2). See Caicedo-Cuero, 312 F.3d at 701. Although Defendant argues that this Court should not be concerned with the enhanced sentence required under 8 U.S.C. § 1326(b)(2), Defendant's indictment charges him with such. Thus, because this Court finds that his state drug conviction is an aggravated felony, he qualifies for the enhanced penalty.
3. The government has proven beyond a reasonable doubt that on July 18, 2003, Defendant was an alien; that he was found in the United States having been previously deported and removed on or about April 16, 1998 and; that Defendant had not received the consent to reapply for admission from the Attorney General of the United States or the Secretary of Homeland Security. U.S. v. Sanchez-Milam, 305 F.3d 310, 313 (5th Cir. 2002).
Accordingly, the Court hereby finds Defendant Jose Manuel Trevino Zaragoza GUILTY BEYOND A REASONABLE DOUBT of the crime charged in the Indictment in this cause.
It is ORDERED that Defendant be scheduled for sentencing in this cause on March 18, 2004, at 9:30 a.m. in Courtroom No. 3, First Floor of the John H. Wood, Jr. Courthouse, 655 E. Durango, San Antonio, Texas 78206.