U.S. v. Campos-Gomez

Full title: United States of America, Plaintiff, v. Fernando Campos-Gomez, Defendant

Court: United States District Court, D. Arizona

Date published: Oct 14, 2008

No. CR 06-2077-TUC-DCB (GEE) (D. Ariz. Oct. 14, 2008)

Opinion

No. CR 06-2077-TUC-DCB (GEE).

October 14, 2008

Motion to Dismiss

REPORT AND RECOMMENDATION

GLENDA EDMONDS, Magistrate Judge

The District Court referred this case to the Magistrate Judge for a hearing on the defendant's Motion to Dismiss. [doc. #27]

On December 13, 2006, Campos-Gomez was indicted for one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2); one count of alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a)(2); and one count of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The defendant moves this court to dismiss the charge of illegal reentry and the charge of alien in possession of a firearm on the grounds that his earlier deportation violated due process and he suffered prejudice thereby. He argues the immigration judge at the deportation hearing erroneously told him he was not eligible for a § 212(c) waiver and further failed to properly inquire if he wanted to proceed without counsel. He maintains he had plausible grounds for such a waiver.

A hearing on the motion was held on Tuesday, September 23, 2008. Upon consideration of the evidence presented at the hearing and the arguments of respective counsel, the Magistrate Judge recommends the District Court deny the defendant's Motion to Dismiss. The defendant was not eligible for a § 212(c) waiver at the time of his deportation hearing.

Background

Campos-Gomez was arrested on February 29, 1996, for conspiracy to possess and distribute marijuana, inter alia. His original plea deadline was April 12, 1996, and his original trial date was April 23, 1996. He consented to a continuation of these dates and eventually pleaded guilty on October 4, 1996. He was sentenced to five years' imprisonment but served less than five years.

On April 24, 1996, after Campos-Gomez consented to a continuation but before he pleaded guilty, the Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which eliminated § 212(c) relief for defendants, such as Campos-Gomez, convicted of an aggravated felony or a drug offense. Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1118 (9^th Cir. 2002), cert. denied, 539 U.S. 902 (2003). The § 212(c) waiver permitted the immigration judge to suspend deportation if equitable considerations made deportation unfair.

Later that same year, the Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which eliminated § 212(c) entirely and replaced it with a more restrictive "cancellation of removal." Armendariz-Montoya, 291 F.3d at 1118 n. 1.

On October 3, 2000, Campos-Gomez appeared at his removal hearing. The immigration judge (IJ) noted that Campos-Gomez was not accompanied by an attorney. The following exchange took place:

IJ: Will you be representing yourself?

CG: Yes, sir.

IJ: You understand you are giving up the right to an attorney.

CG: Yes, your honor.

(Motion hearing, Exhibit 5.) The IJ sustained the allegations against the defendant and ordered him removed to Mexico. The IJ further stated there were no forms of relief available to the defendant.

Campos-Gomez appealed the removal order to the Bureau of Immigration Appeals (BIA). The appeal was rejected because it was not in English. Campos-Gomez resubmit his appeal in English, but there is no record the appeal was ever received. On November 27, 2000, Campos-Gomez was deported to Mexico.

On June 25, 2001, the Supreme Court decided that the statutes eliminating of § 212(c) relief were impermissibly retroactive as applied to those defendants who pleaded guilty when § 212(c) was still in effect. I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 2293 (2001). The Court explained that these defendants presumably relied on the continued existence of the waiver when they pleaded guilty. Id. at 322, 2291. Accordingly, "it would surely be contrary to familiar considerations of fair notice, reasonable reliance, and settled expectations" to deprive them of the benefit of their bargain. Id. at 323-24, 2292.

EVIDENCE: Angelita Gomez-Trejo

Gomez-Trejo is the defendant's mother. She testified at the evidentiary hearing that their family came to the United States when Campos-Gomez was four years old. Campos-Gomez and his siblings performed music with their father as a way to make money. When their father left the family, Campos-Gomez continued to play music to support the family.

Campos-Gomez has four children who are adversely affected by his incarceration.

Cecilia Campos-Parrado

Campos-Parrado is the defendant's sister. She testified that Campos-Gomez played music to support the family after their father left.

She sees Campos-Gomez' children every day. They greatly miss their father.

Tarik Sultan

Sultan is an immigration attorney who practices in Tucson. He testified as an expert about the § 212(c) waiver of admissibility. Under this section, a person subject to deportation because of a drug conviction could avoid deportation based on the equities. Sultan testified it is "plausible" that Campos-Parrado would have obtained § 212(c) relief had he applied for it when he was removed in 2000 assuming § 212(c) relief was still available to him.

Discussion

Campos-Gomez is charged with illegal reentry. As part of its case in chief, the government must prove that Campos-Gomez was properly deported or removed prior to his reentry. Campos-Gomez argues the government cannot do this because irregularities in his deportation proceeding violated his due process rights and he suffered prejudice thereby. See U.S. v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9^th Cir. 2004). Specifically, he argues his earlier deportation violated due process because the immigration judge at the deportation hearing erroneously told him he was not eligible for a § 212(c) waiver and further failed to properly inquire if he wanted to proceed without counsel. He maintains he had plausible grounds for obtaining a § 212(c) waiver and therefore suffered prejudice from the immigration judge's errors. The immigration judge told Campos-Gomez that he was not eligible for a § 212(c) waiver because, by the time of the hearing, the AEDPA had eliminated the waiver for defendants such as Campos-Gomez.

Campos-Gomez argues that he was, in fact, eligible for the § 212(c) waiver pursuant to I.N.S. v. St. Cyr, 533 U.S. 289, 323-24, 121 S.Ct. 2271, 2291-92 (2001). In that case, the Supreme Court held the waiver still applied to those aliens in deportation proceedings after the waiver's elimination date provided they pleaded guilty before the elimination date. Id. Campos-Gomez, on the other hand, pleaded guilty after the waiver was eliminated. He nevertheless argues he is entitled to benefit from the holding in St. Cyr because he had a chance to plead guilty (or go to trial) prior to the elimination date but instead chose to continue plea negotiations. He argues he reasonably relied on the continued existence of the waiver when he made this choice. Accordingly, he concludes the law eliminating the waiver is impermissibly retroactive as applied to him. The court does not agree.

In St. Cyr, the Supreme Court held that the elimination of § 212(c) relief by AEDPA and IIRIRA was impermissibly retroactive as applied to those defendants who pleaded guilty when § 212(c) was still in effect. I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 2293 (2001). The Court reasoned that those defendants relied to their detriment on the future existence of the waiver when they pleaded guilty. Id. "If those aliens had been aware of [the imminent elimination of the waiver] at the time of the plea, they might have elected to proceed to trial in lieu of pleading guilty." Armendariz-Montoya v. Sonchik 291 F.3d 1116, 1121 (9^th Cir. 2002). Accordingly, it would be unfair to apply the waiver elimination statute to them even though the statute was in effect at the time they had their deportation hearing. St. Cyr, 533 U.S. at 323-24, 2291-92.

In this case, Campos-Gomez cannot show he relied to his detriment on the existence of the waiver when he made his decision to continue the plea negotiation process. To put it another way: If Campos-Gomez knew the waiver would be eliminated in the near future, would he have pleaded guilty right away rather than agree to a continuance? See Armendariz-Montoya, 291 F.3d at 1121. He presents no evidence that he would have done so. At that time, the government had offered no plea agreement. It was in his best interests to agree to the continuance in the hopes that further plea negotiations would be fruitful.

Camos-Gomez maintains he reasonably relied on the future existence of the waiver when he agreed to the continuance. He further argues this decision was detrimental because had he pleaded guilty right away he would have been eligible for the holding in St. Cyr. The defendant, however, misconstrues the test. It is not enough to show his decision operated to his eventual detriment. He must show the elimination of the waiver operated to his detriment. This he cannot do. The elimination of the waiver by itself did not make the continuance problematic. As the court explained above, the elimination of the waiver did not deprive him of the benefit of his decision to continue plea negotiations.

Now, in retrospect, this decision turned out to be a poor one because of the eventual holding in St. Cyr. This, however, is of no legal moment. The question is whether Camos-Gomez "might have acted differently had he anticipated [the elimination of the waiver], not whether he might have acted differently if he had anticipated St. Cyr." U.S. v. Zuniga-Guerrero, 460 F.3d 733, 738 (6^th Cir. 2006), cert. denied, 127 S.Ct. 1011 (2007); see Armendariz-Montoya v. Sonchik 291 F.3d 1116, 1121 (9^th Cir. 2002) (The statute has an impermissibly retroactive effect only where the aliens can "plausibly claim that they would have acted any differently if they had known about [the waiver's elimination]."). He provides no evidence that he would have done so. Accordingly, Campos-Gomez cannot show he relied to his detriment on the continued existence of the waiver. He therefore does not benefit from the holding in St. Cyr. See, e.g., Armendariz-Montoya, 291 F.3d at 1121-22 ( St. Cyr does not apply to a defendant who rejected the plea agreement and was convicted at trial before AEDPA took effect.); Zuniga-Guerrero, 460 F.3d at 737 ( St. Cyr does not apply to a defendant who "rejected an offered plea bargain two days before AEDPA took effect."); but see Ponnapula v. Ashcroft, 373 F.3d 480, 496 (3^rd Cir. 2004) ("[I]f it was reasonable in St. Cyr for an alien to rely on the attenuated availability of § 212(c) relief in accepting a plea agreement, we see no reason why it would be unreasonable for the same alien to likewise rely in declining a plea agreement.").

Campos-Gomez argues in the alternative that the holding in St. Cyr applies to him because he reasonably relied on the future existence of the waiver when he committed his underlying crime. Ninth Circuit precedent, however, precludes this argument. Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1133 (9^th Cir. 2007) ("Petitioner's claimed reliance interest is per se unreasonable because of the absurd argument that aliens might have decided not to commit drug crimes . . . had they known that they could not ask for a discretionary waiver of deportation.") (internal punctuation omitted), cert. denied, 128 S.Ct. 2499 (2008).

Campos-Gomez argues that Saravia-Paguada was wrongly decided because the Ninth Circuit in that case employed a "reasonable reliance" test that is inconsistent with an earlier Supreme Court decision — Landgrafv. USI Film Products, 511 U.S. 244, 270 (1994). This court, however, is obliged to follow Saravia-Paguada. See Miller v. Gammie, 335 F.3d 889 899-900 (9^th Cir. 2003) (en banc).

Campos-Gomez further argues his underlying deportation violated due process because the immigration judge failed to properly ascertain if he wanted to proceed pro per and waived his right to counsel. The failure of the immigration judge to preserve Campos-Gomez' right to counsel, however, entitles him to relief only if prejudice results. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1105 (9^th Cir. 2004). Here, Campos-Gomez argues he was prejudiced because counsel would have been able to properly assert his right to a § 212(c) waiver. As explained above, however, Campos-Gomez had no right to a waiver. Even if the immigration judge erred, Campos-Gomez cannot establish prejudice. Without a showing of prejudice, Campos-Gomez cannot collaterally attack his prior deportation.

RECOMMENDATION:

In view of the foregoing, it is recommended that, after its independent review of the record, the District Court: DENY the Motion to Dismiss. This Report and Recommendation is being faxed to all counsel on this date. Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections within 10 days of being served with a copy of this Report and Recommendation. If specific objections are not timely filed, the party's right to de novo review may be waived. See U. S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003) (en banc), cert. denied, 540 U.S. 900 (2003).

The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.