Opinion
No. 99 CR 159
February 15, 2000
MEMORANDUM OPINION AND ORDER
Marco Antonio Pequeño Garza ("Defendant") was indicted for and plead guilty to the crime of illegally reentering the United States in violation of 8 U.S.C. § 1326. Defendant now moves this Court to dismiss his indictment as well as to withdraw his guilty plea. For the reasons discussed herein, both motions are denied.
I. Background
Defendant, a Mexican citizen, first entered the United States in 1974 on an immigration visa. He retained legal permanent resident status until June of 1998. On March 11, 1998, Defendant was convicted in a Kane County, Illinois, Circuit Court of unlawful possession with intent to deliver cocaine, aggravated criminal sexual abuse of a minor, and domestic battery. On June 4, 1998, an immigration judge ordered that Defendant be deported to Mexico, pursuant to 8 U.S.C. § 1326 (b), based on his aggravated felony convictions. On June 13, 1998, Immigration and Naturalization Service ("INS") officials escorted Defendant to Nogales, Arizona, where he crossed the border into Mexico.
During his 1998 removal hearing, in which Defendant proceeded pro se, the following exchange took place between Defendant and the immigration judge:
JUDGE: [T]hat is my decision [to order immediate deportation]. If you believe it is incorrect, you do have the right to file an appeal within 30 days. If, however, you accept this decision, it becomes final and the Immigration Service will then make arrangements with you for your immediate or your departure in the very near future. Do you understand your appeal rights?
Defendant provides this Court with an unofficial transcript from the removal hearing. The government does not raise any objections to the accuracy of the transcript for the purposes of the instant motions. (Gov. Resp. at 3n. 3). Thus, Defendant's Exh. A of his Motion to Dismiss Indictment will be relied upon by this Court.
PEQUENO: Yes, I do, your Honor.
JUDGE: Okay, do you wish to appeal this or do you accept this decision?
PEQUENO: No, I accept this.
The immigration judge's summary order, dated June 4, 1998, indicated that Defendant was to be removed to Mexico and that he had waived his right to appeal the order. (Mot. to Dismiss, Exh. C). Defendant's waiver was memorialized by a handwritten circle placed around the term "Waived" at the bottom of the order. In a separate summary order, also dated June 4, 1998, the immigration judge noted that Defendant' request for bond had been denied and that Defendant had also waived his right to appeal this decision. At the bottom of that document, the term "Reserved" was circled with regard to the appeal issue, but then scratched out; the term "Waived" was also circled. In the space provided for the deadline for appeal, "7-6-98" was handwritten.
In an affidavit submitted to this Court, Defendant recounts an off-the-record conversation he had with the immigration judge:
JUDGE: [After explaining to Defendant that he will be deported.] If I was to deport you, where would you like to be deported to?
PEQUENO: Mexico.
JUDGE: Do you wish to appeal this deportation?
PEQUENO: Your Honor, can I appeal from Mexico?
JUDGE: Yes, you may appeal from Mexico.
PEQUENO: OK then, I'll do that then, because I don't want to continue being in jail with no money and not being able to get an attorney sitting here in jail.
JUDGE: It's fine with me. So do you waive your right to appeal at this time?
PEQUENO: Yes I do, as long as I can do it from Mexico.
JUDGE: That's fine with me. [Later, as the judge was signing the summary order,] OK since you['re] going to appeal from Mexico you'll have til July 4th. No, just a minute, since July 4th is a national holiday, I'll give you til July 6th to appeal by.
(Def. Mot. to Dismiss, Exh. B). The transcript of the removal proceeding indicates that an off-the-record discussion did occur.
On July 6, 1998, Defendant filed a notice of appeal with the Board of Immigration Appeals ("BIA"). (Def. Mot. to Dismiss, Exh. D). INS moved to dismiss that appeal, noting that Defendant had waived his right to appeal and that he had been deported pursuant to the immigration judge's order. (Def. Mot. to Dismiss, Exh. E). Defendant took no further action on the appeal and there is no appeal presently pending before the BIA. (See Def. Mot. to Dismiss, Exh. D (noting that "per BIA on 2/17/99, No appeal pending. Deported prior to appeal being filed.")).
Subsequently, Defendant re-entered the United States without obtaining the consent of the Attorney General. Federal agents took Defendant into custody on March 11, 1999. On April 7, a grand jury returned an indictment charging Defendant with illegally reentering the United States in violation of 8 U.S.C. § 1326 (a) and (b). On June 28, 1999, Defendant plead guilty to the charge pursuant to a plea agreement entered into with the government. In his plea agreement, Defendant acknowledged that he waived his right to appeal his 1998 removed order. During Defendant's plea hearing before this Court, however, Defendant indicated that he had not in fact waived his right to appeal; instead, he maintained that the immigration judge had expressly advised him that he could appeal his removal from Mexico. The Court questioned the propriety of the plea in light of the possibility of a pending appeal. At the July 28, 1999, hearing before this court, Defendant's attorney, citing to 8 C.F.R. § 3.3, assured the Court that Defendant's removal from the United States served as a waiver of appeal. (Tr. 7/28/99 at 22-23); 8 C.F.R. § 3.3 (e) ("Departure from the United States of a person who is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his or her case, shall constitute a waiver of his or her right to appeal.")) With this understanding, the Court accepted Defendant's guilty plea.
II. Analysis
Defendant urges this Court to dismiss his indictment and to allow him to withdraw his guilty plea. He contends that his 1998 deportation order, the validity of which is a necessary prerequisite to his indictment, was obtained in violation of his fundamental rights, thereby justifying the dismissal of his indictment. In addition, Defendant argues that the alleged denial of his right to appeal the 1998 removal order compels a withdrawal of his guilty plea.
If procedural errors in a deportation hearing deprive an alien of judicial review, a defendant prosecuted under 8 U.S.C. § 1326 may collaterally challenge the resulting deportation order upon which the criminal charge is predicated. In United States v. Mendoza-Lopez, the Supreme Court announced that "where the defects in an administrative hearing proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." 481 U.S. 828, 838, 107 S.Ct. 2148, 2155 (1987). Thus, the Court held, "a collateral challenge to the use of a deportation proceeding . . . must be permitted whether the deportation proceeding effectively eliminates the right to judicial review" Id., 481 U.S. at 839, 107 S.Ct. at 2156.
In explaining the Supreme Court's mandate, the Seventh Circuit has outlined a two-step analysis:
[F]or a section 1326 defendant to successfully prevent his underlying deportation from being used to prove an element of a criminal offense, the defendant must first show that the deportation hearing effectively foreclosed his right to direct judicial review of the deportation order. Second, he must show that the deportation hearing was fundamentally unfair. In other words, he must show that he was prejudiced by the Immigration Judge's failure to inform him of his rights to seek . . . appeal, because an informed exercise of those rights would have yielded him relief from deportation. If he cannot make either one of these showings, the deportation order may be used to establish an element of a criminal offense.United States v. Esninoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994). To warrant the dismissal of his indictment, then, Defendant must succeed in collaterally attacking his 1998 deportation. United States v. Anderson, 64 F. Supp.2d 870, 876 (S.D. Ind. 1999).
In the present case, Defendant maintains that he did not knowingly and intelligently waive his right to appeal his 1998 removal order. He asserts that the immigration judge informed him during the off-the-record discussion that Defendant could appeal his removal order from Mexico. Relying on the immigration judge's alleged representations, Defendant claims that he believed he was preserving his appellate rights. Defendant's argument is tenable. During the 1998 removal proceeding before the immigration judge, some confusion seems to have arisen over whether Defendant actually asserted his right to appeal. The judge's written order regarding the denial of bond suggests that at first, he marked Defendant's right to appeal as "Reserved" and issued him a July 6, 1998, appeal deadline. Subsequently, the judge scratched out his prior selection and circled "Waived." The handwritten insertion of the July 6 appeal deadline, however, remained unaltered.
During the removal hearing, the immigration judge informed Defendant: "If you believe [the order of immediate deportation] is incorrect, you do have the right to file an appeal within 30 days. If, however, you accept this decision, it becomes final and the Immigration Service will then make arrangements with you for your immediate or your departure in the very near future. Do you understand your appeal rights?" The judge later confirmed that Defendant understood his rights, asking, "do you wish to appeal this or do you accept this [removal] decision?" Had the judge's on-the-record statements clearly elaborated on the fact that Defendant was waiving his right to appeal by consenting to immediate deportation, the Court would be satisfied that Defendant was not deprived of judicial review. See United States v. Jackson, 93 F.3d 335, 338 (7th Cir. 1996) (noting that "the recording of the deportation hearings indicates that the Immigration Judge advised Jackson of his right to appeal the deportation order" and therefore precludes a finding that the hearing foreclosed defendant's right to appeal). As detailed previously, the record strongly suggests that some discussion of an appeal occurred so as to compel the judge to make note of an appeal deadline. Keeping this possible discussion in mind, then, the Court is inclined to conclude that the immigration judge's colloquy, although not misleading, was not satisfactory because there was room for the judge to clarify that deportation and Defendant's right to appeal were mutually exclusive alternatives. The Court, however, need not render a final determination on whether the 1998 proceedings "effectively foreclosed [Defendant's] right to direct judicial review of his deportation order." Even if the Court finds in favor of Defendant on this first element, his collateral challenge cannot succeed because he cannot establish the second element of fundamental unfairness.
Unlike the factual question surrounding whether Defendant knowingly waived his right to appeal, the Court's finding is clearly mandated with respect to this second element. To prevent his 1998 deportation from being used a basis for a § 1326 conviction, Defendant must show that the exercise of his appellate rights would have yielded him relief from deportation. Jackson, 93 F.3d at 338. Defendant was guilty of two aggravated felonies and is therefore "conclusively presumed to be deportable from the United States." Espinoza-Farlo, 34 F.3d at 471 (citing 8 U.S.C. § 1101(a)(43) 1228(c)). See also Jackson, 93 F.3d at 338 (finding that defendant "had committed numerous felonies [and] had no defense to deportation"); Anderson, 64 F. Supp.2d at 881. Had he appealed his 1998 removal order, Defendant would not have won an appeal. Espinoza-Farlo, 34 F.3d at 471; Jackson, 93 F.3d at 338. Therefore, Defendant fails to demonstrate that he was prejudiced by the immigration judge's decision.
Defendant contends that the guilty pleas underlying his convictions which, in turn, formed the basis of his deportation order were invalid. Specifically claiming ineffective assistance of counsel, Defendant filed petitions in the Kane County Circuit Court as well as the Illinois Supreme Court seeking a reversal of his convictions. Faced with a similar situation, the Tenth Circuit, utilizing the same two-step standard for collateral challenges, declared:
Defendant claims that his attorney failed to advise him that a guilty plea would result in deportation.
Because of his felony drug conviction, [the defendant] was without a defense to or viable basis for contesting deportation. What he argues to be prejudice is the lost opportunity during the pendency of his deportation proceeding to obtain relief in state district court on his prior felony drug conviction based on ineffective assistance of counsel. We agree with the district court that this lost opportunity is too speculative here to qualify as prejudice. There [is] no reasonable basis for finding that the outcome of [the defendant's] deportation case would have been different. . . .United States v. Avila-Gonzalez, No. 98-1391, 1999 WL 1037572, at *3n. 5 (10th Cir. Nov. 16, 1999). Likewise, this Court finds that Defendant's pending state habeas petitions are too speculative to undergird the claim that his removal order was fundamentally unfair. Because Defendant is unable to make a showing of fundamental unfairness, the 1998 deportation order may be used to establish an element of a criminal offense. Espinoza-Farlo, 34 F.3d at 471. In turn, Defendant's motion to dismiss his indictment is denied.
With regard to Defendant's motion to withdraw his guilty plea to the § 1326 violation, that too is denied. No defendant has an absolute right to withdraw a guilty plea. United States v. Neeley, 189 F.3d 670, 685 (7th Cir. 1999). A withdrawal will be permitted if the defendant satisfactorily bears the burden of presenting a "fair and just" reason compelling withdrawal. Id; Fed.R.Crim. p. 32(e). Defendant does not challenge the propriety of the Rule 11 plea colloquy held before this Court. See Fed.R.Crim.P. 11. Instead, Defendant's motion to withdraw his plea is predicated on the alleged denial of his appellate rights at his 1998 deportation hearing. In light of the Court's finding that Defendant's collateral challenge is without merit, the Court finds no fair and just reason for withdrawing Defendant's plea.
In fact, the Court, together with both parties, thoroughly investigated the propriety of this plea in light of Defendant's contention that he did not waive his right to appeal the 1998 removal order. It was only after Defendant's attorney assured the Court that Defendant had, by leaving the United States, waived his appellate right, and that his then-current plea was entirely voluntary and informed, that this Court accepted the plea.
IV. Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss Indictment is DENIED. Likewise, his Motion to Withdraw Guilty Plea is also DENIED.