Opinion
No. 01-10106-01.
January 16, 2002
Memorandum and Order
The indictment in this case charges the defendant with being an alien unlawfully found in the United States on or about September 13, 2001, without obtaining advance consent from the Attorney General, after having been convicted of an aggravated felony "and having been deported from the United States on or about August 4, 2000," in violation of 8 U.S.C. § 1326(a) (b)(2). Doc. 10. The matter came before the court on January 14, 2002, for a hearing on defendant's motion to dismiss the indictment. In his motion, defendant alleges he was deprived of due process in connection with his deportation on August 4th, 2000 such that the government may not use that event to satisfy the "prior deportation" element of the charge under § 1326(b)(2).
I. Summary of Facts.
The issue at hand concerns an expedited deportation procedure adopted by the INS for aliens who illegally re-enter the United States while under a previous order of exclusion, deportation or removal. If the INS determines that an alien is subject to this "reinstatement" provision, it orders the reinstatement of the prior order of deportation and deports the alien without a hearing before an immigration judge and without the opportunity for judicial review. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8.
Section 241(a)(5) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1231(a)(5), provides:
Reinstatement of removal orders against aliens illegally reentering
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
In establishing whether an alien is subject to this procedure, the implementing regulation directs an immigration officer to determine: (1) whether the alien has been subject to a prior order of removal; (2) the identity of the alien (including, in "disputed cases," a fingerprint comparison); and (3) whether the alien unlawfully reentered the United States (based on all relevant evidence, including any statements made by the alien).
If the INS officer determines that the alien is subject to removal under this section, the officer provides the alien with a written notice of his determination. The officer must advise the alien that he may make a written or oral statement contesting the determination. If the alien makes a statement, the officer is directed to consider whether the statement warrants reconsideration of the determination. If the INS persists in its determination that the alien is subject to the regulation, "the alien shall be removed under the previous order of exclusion, deportation, or removal. . . ."
An exception is provided for an alien who expresses a fear of returning to the country named in the removal order. In such circumstances, the regulation directs the officer to refer the alien to an asylum officer for a determination of whether the alien has a reasonable fear of persecution. 8 C.F.R. § 241.8(d).
At the motions hearing in this case, the government presented the testimony of INS Special Agents Hector Anthony McKenna and Carl Hummell, and also introduced and explained, through the testimony of these witnesses, nine exhibits relating to the defendant's prior deportation proceedings. Highly summarized, the evidence showed that the defendant was deported on August 4, 2000, pursuant to the procedure in 8 C.F.R. § 241.8.
The exhibits showed that on January 27, 1997, an INS warrant for arrest of "Raul Perez-Luevano aka Raul Jr. Luevano-Mercado" was issued and served on Mr. Perez based on an allegation that he was in the United States in violation of the immigration laws. Exh. 1. Mr. Perez was then served with an Order to Show Cause that ordered him to appear for a hearing before an immigration judge in El Paso, Texas, and show cause why he should not be deported. Exh. 2. At a hearing on March 25, 1997, Immigration Judge Bertha A. Zuniga found, based on Mr. Perez's admissions, that Mr. Perez was deportable and ordered that he be deported from the United States to his native country of Mexico. Exh. 3. The judge's order contained a provision at the bottom stating: "Appeal: WAIVED (A/I/B)," with a hand-drawn circle around both the "WAIVED" and the "B." Special Agent Carl Hummell testified at the hearing in the instant case that this notation meant the right to appeal from the order had been waived by both the INS and the respondent Mr. Perez. Mr. Perez was given a warning that it would be illegal for him to return to the U.S. without obtaining advance consent from the Attorney General, and, following the issuance of a warrant of deportation by the INS District Director, he was deported to Mexico on the same day, March 25, 1997. Mr. Perez was fingerprinted during the course of the above proceedings.
Hummell testified that the "A" stood for "alien," the "I" for "INS," and the "B" for "both."
Mr. Perez was subsequently found in the United States. Exhibit 6 is an INS record reflecting a statement subsequently given by "Pedro Perez-Madrid" to INS agent Hector McKenna on July 14, 2000, in Wichita, Kansas. Agent McKenna testified he gave Mr. Perez his Miranda rights in Spanish before this interview and that Mr. Perez agreed to waive his rights and talk. The evidence at the hearing indicated Mr. Perez admitted in the interview that his true name was Pedro Perez-Madrid, that he had been born in Mexico, that he had been deported about four years earlier, that he had returned to the United States through Arizona about 18-24 months ago, and that he had applied to the Attorney General for permission to re-enter but "never finished with the case." He said he would appreciate it very much if he was given another chance to return to his country. The evidence at the motions hearing indicated this interview was approximately five minutes or so and concluded around 11:06 a.m. On the same date, a warrant was issued by the INS, signed by the Deputy District Director, authorizing the INS to take Mr. Perez into custody for an alleged violation of the immigration laws. Exh. 6b. This document was served on Mr. Perez at about 2:06 p.m. Also on the same date, Mr. Perez was presented with a "Notice of Intent/ Decision to Reinstate Prior Order" by Agent McKenna, which set forth the INS's intent to reinstate the order of deportation previously imposed on Mr. Perez, together with Agent McKenna's findings pursuant to 8 C.F.R. § 241.8 that Mr. Perez was an alien subject to a prior order of deportation issued on March 25, 1997, that Mr. Perez had been identified as an alien who was removed on that date, that Mr. Perez illegally reentered the U.S. on or about December 15, 1997 in Arizona, and that Mr. Perez was subject to removal by reinstatement of the prior order. Exh. 7. The evidence at the hearing showed that Agent McKenna, in accordance with INS custom, may have prepared this form prior to his interview with Mr. Perez. Prior to the interview, Agent McKenna had verified that Mr. Perez was the same individual that had been deported on March 25, 1997, by having the Sedgwick County Sheriff's Lab conduct a fingerprint comparison, and he or another agent reviewed Mr. Perez's "A file" and determined there was no evidence of Mr. Perez having filed for permission to reapply for admission to the U.S. On July 14, 2000, Agent McKenna read the Notice of Intent (Exh. 7) to Mr. Perez in Spanish, including the portion stating that he did not have a right to a hearing before an immigration judge but that he could make a statement contesting the agent's findings if he so desired. Mr. Perez signed an acknowledgment stating that he did not wish to make such a statement. The bottom of this form contained a "Decision, Order and Officer's Certification," signed by an INS Deputy District Director, finding that Mr. Perez was subject to removal through reinstatement of the prior order pursuant to § 241(a)(5) of the statute. On July 25, 2000, an INS District Director issued a warrant for removal/deportation authorizing INS agents to remove Mr. Perez. The warrant was subsequently executed and Mr. Perez was deported to Mexico on August 4, 2000. Mr. Perez was subsequently found in the U.S. again on September 13, 2001, prompting the current charge against him.
II. Discussion.
Relying on United States v. Mendoza-Lopez, 481 U.S. 828 (1987) and Rose v. Clark, 478 U.S. 570 (1986), defendant argues that the August 4th deportation proceeding was fundamentally unfair and violated his right to due process because it failed to provide appropriate notice and a hearing; it was a one-sided proceeding in which the INS acted as judge and jury and made its determination without any hearing; his purported waiver of the right to contest the INS Officer's determination was not recorded audibly, was taken by agents of the prosecuting entity, and was taken without any neutral oversight by an immigration judge; and because the proceeding deprived him of judicial review.
In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), a defendant in a criminal proceeding under § 1326 alleged that his prior deportation proceeding violated due process and therefore could not be used to support the § 1326 charge. The district court in that case found that proceeding had violated due process because the record of the deportation proceeding showed that the defendant had not understood his right to apply for suspension of deportation or his right to appeal the deportation ruling. Accordingly, the district court dismissed the § 1326 indictment. On appeal, the Supreme Court noted Congress had intended that the validity of a deportation order not be contestable in a § 1326 prosecution, but the Court concluded that due process required that "where the defects in an administrative 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 as element of a criminal offense." Id. at 838. Thus, the defendant had a right in the § 1326 prosecution to collaterally challenge the validity of the deportation order. Id. at 839.
The Ninth Circuit has reviewed at least two challenges to the reinstatement procedure of § 241(a)(5). In Alvarez-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir. 2001), the court addressed a due process challenge to this procedure raised via habeas corpus petition by an alien in INS custody. The court rejected the challenge by more or less finding that the reinstated deportation procedure "piggy-backed" onto the initial deportation proceeding: "Aliens who are removable under § 241(a)(5)," the court said, "have already received all the process that is due under the Constitution." Id. at 1173. "Thus, another hearing is denied only to those aliens who have already been excluded, deported or removed after having been given one full and fair hearing, including the right to judicial review of that hearing. To preclude a second bite at the apple after an illegal reentry does not offend due process." Id. at 1174 (emphasis in original). The Government also cites United States v. Martinez-Vitela, 193 F.3d 1047, 1053 (9th Cir. 1999), a criminal case under § 1326 in which the court said that under Mendoza-Lopez an alien was entitled to an opportunity to show that the original deportation proceeding against him violated due process, but the court proceeded to find no violation of due process in the reinstatement proceeding where the initial proceeding met the requirements of due process and the alien had admitted he was the person subject to the previous order and had reentered the country illegally. In such circumstances, the court said, "the 1997 reinstatement proceeding simply re-effectuated the 1995 decision." Id.
The Ninth Circuit subsequently withdrew the opinion cited above but later held in an unpublished decision that if the underlying deportation proceeding that is being reinstated satisfied due process, and the individual previously deported has acknowledged that he again entered the country illegally, the reinstatement procedures provided for in 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8 also satisfy due process. See United States v. Martinez-Vitela, 225 F.3d 665 (Table), 2000 WL 687698 (9th Cir., May 25, 2000).
Although defendant's argument presents a close question, the court is persuaded that the Ninth Circuit's approach in Martinez-Vitela is correct. The reinstatement procedure is little more than a recognition that a prior order of deportation remains valid and may be used against the person subject to it if he unlawfully reenters the United States. No allegation has been made here that the defendant was deprived of due process in connection with his deportation proceeding in March of 1997. That proceeding resulted in a valid order of deportation which was carried out on March 25, 1997. When the defendant was subsequently found in the U.S., the INS instituted proceedings to determine if the prior order should be reinstated. The factual prerequisites for reinstatement under § 241(a)(5) — i.e, that the defendant was an alien subject to a prior order, that he had re-entered the country illegally, and that he had not obtained appropriate consent from the Attorney General — were determined by the INS to be satisfied, based in significant part on the defendant's own admissions. Although these findings were made in an abbreviated proceeding not subject to judicial review and defendant argues that the process was fundamentally unfair, he has not challenged any of the INS's predicate findings, nor has he cited evidence suggesting that any of the findings might be erroneous. Cf. United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998) (To make a successful collateral challenge to a deportation order in a § 1326 prosecution, a defendant must show that the deportation hearing effectively foreclosed his right to seek judicial review and was fundamentally unfair; to establish fundamental unfairness, the alien must show that he was prejudiced.). Under the circumstances, the court concludes no showing has been made that the procedures used in connection with the August 4, 2000 deportation violated the defendant's right to due process. Accordingly, the Government is not precluded from using that event to prove the "prior deportation" element of § 1326.
As the Ninth Circuit has noted, any question about the validity of a reinstated deportation order could be avoided if the Government simply charged the underlying deportation proceeding in the indictment.
At oral argument, defense counsel seemed to suggest he was precluded from raising a due process challenge to the March 1997 deportation proceeding by virtue of § 1231(a)(5). The court disagrees. That statute may preclude an alien from challenging the underlying deportation in the course of a reinstatement proceeding under § 241, but by virtue of Mendoza-Lopez the defendant has the right in this criminal proceeding to challenge the validity of the March 1997 deportation. The court notes, however, that such a challenge appears unavailing, as the record now before the court indicates the defendant voluntarily waived his right to appeal from the March 1997 deportation order.
Conclusion.
The defendant's motion to dismiss (Doc. 19) is hereby DENIED.
IT IS SO ORDERED.