Opinion
No. C 03-0195 PJH
August 19, 2003
ORDER
Petitioner Rafael Montes Mayorga filed this petition for writ of habeas corpus under 28 U.S.C. § 2241 on January 13, 2003. He also sought a stay of deportation. Following briefing, the court denied the request for a stay in an order filed herein on April 23, 2003 ("the April 23 order"), and set a briefing schedule for the petition. The court has read and considered the parties' papers, and finds that the petition must be DENIED.
The factual background is as set forth in the April 23 order. Briefly, petitioner entered the United States without inspection in 1996, and in 1997 was convicted of being an illegal alien in possession of ammunition, an aggravated felony. He received a sentence of four months, and was removed from the United States in January 1998. He illegally reentered the country in 1999. He married a United States citizen in 2001, and applied for an adjustment of status based on his marriage.
In 2002, the Immigration and Naturalization Service served petitioner with a notice to reinstate the prior removal order, pursuant to 8 U.S.C. § 1231(a)(5). He was subsequently arrested, pleaded guilty to one count of illegal entry by an alien, 8 U.S.C. § 1325, and was sentenced to six months' imprisonment. When he was released from jail, he filed a request for an emergency stay of removal and the present petition. The court granted a temporary stay, but in April 2003 denied the stay, as indicated above.
Petitioner contends that the January 1998 removal order was unlawful because he was not provided with a Spanish translation of his rights in the removal proceeding, in violation of his due process rights under the Fifth Amendment to the United States Constitution. Respondents dispute this claim, asserting that he was provided with a Spanish translation.
Respondents also argue that under 8 U.S.C. § 1231(a)(5), this court lacks jurisdiction to consider petitioner's constitutional claims. As the court indicated in the April 23 order, however, petitioner is arguably entitled to pursue his constitutional claim in district court through a petition for writ of habeas corpus. See Calcano-Martinez v. I.M.S., 533 U.S. 348 (2001); I.N.S. v. St. Cyr, 533 U.S. 289 (2001).
The court also finds, however, that petitioner cannot prevail on the constitutional claim because he fails to establish that he was prejudiced by the lack of process allegedly afforded him. U.S. v. Corrales-Beltran, 192 F.3d 1311,1318 (9th Cir. 1999); see also Padilla v. Ashcroft, 334 F.3d 921, 924-25 (9th Cir. 2003) (alien must show prejudice as predicate to obtaining relief for violation of procedural due process rights in immigration proceedings). To show prejudice, an alien must show that he had a plausible ground of relief from the order of removal. Corrales-Beltran, 192 F.3d at 1318;Padilla, 334 F.3d at 925.
In this case, petitioner admitted that he had no legal right to be in the United States when he pleaded guilty in 1997 to the charge of being an illegal alien in possession of ammunition, and again when he pleaded guilty in 2002 to the charge of illegal entry by an alien. Even if the court accepts petitioner's claim that his rights were not explained to him in Spanish, the petition must be denied because he makes no showing of a constitutional due process violation. Specifically, he has not established that the result of the January 1998 proceeding (removal from the United States) would have been different had the procedures been explained to him in Spanish.
In accordance with the foregoing, the court DENIES the petition for writ of habeas corpus.
IT IS SO ORDERED.
JUDGMENT
The court having denied the petition for writ of habeas corpus,It is Ordered and Adjudged
that the petitioner Rafael Monies Mayorga take nothing, and that the petition be dismissed on the merits.
IT IS SO ORDERED.