U.S. v. Zarate-Martinez

• Decision Date: 13 January 1998
• Docket Number: Nos. 97-10212,D,97-10218,ZARATE-MARTINE,s. 97-10212
• Citation: 133 F.3d 1194
• Parties: 98 Cal. Daily Op. Serv. 311, 98 Daily Journal D.A.R. 421 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Jose Juanefendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1194

133 F.3d 1194

98 Cal. Daily Op. Serv. 311, 98 Daily Journal

D.A.R. 421

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Jose Juan ZARATE-MARTINEZ, Defendant-Appellant-Cross-Appellee.

Nos. 97-10212, 97-10218.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 12, 1997.

Decided Jan. 13, 1998.

Maria C. Borbon, Rosemary Marquez, Assistant Federal Public Defender (oral argument), Tucson, AZ, for Defendant-Appellant-Cross-Appellee.

John P. Leader, Assistant United States Attorney, Tucson, AZ, for Plaintiff-Appellee-Cross-Appellant.

Before: ALDISERT, ^* D.W. NELSON and TASHIMA, Circuit Judges.

ALDISERT, Circuit Judge:

The appeal by Jose Juan Zarate-Martinez from judgment and sentence for a violation of 8 U.S.C. § 1326(b)(1), reentry after deportation subsequent to a felony conviction, requires us to decide if his due process rights were violated because he had no meaningful opportunity for judicial review of the underlying deportation order and whether he was denied equal protection because one of the cocaine convictions underlying his deportation resulted from California's unlawful failure to provide him with drug rehabilitation treatment. He entered a conditional guilty plea subject to our review of his claims of constitutional violations.

We must consider also the cross-appeal of the government that the district court erred in reducing the offense from an "aggravated felony" charge under § 1326(b)(2) to the lesser included reentry offense under § 1326(b)(1). We affirm the judgment on Zarate-Martinez' appeal, but on the cross-appeal we vacate the judgment and sentence and remand with a direction that the district court reinstate the aggravated felony charge under § 1326(b)(2) and permit Zarate-Martinez to plead anew to the reinstated indictment.

I.

Zarate-Martinez first entered the United States when he moved with his family to Los Angeles in 1981. He was 13 at the time. Subsequent to his arrest by California authorities in January 1993 for possession of 0.66 grams of cocaine, Zarate-Martinez was convicted in Superior Court of possession of a controlled substance and sentenced to three years probation and 365 days in prison. In August 1993 he ran afoul of state law again. He was arrested for possession of 2.15 grams of cocaine, and again was convicted of possession of a controlled substance. He was sentenced to three years probation and 100 days in prison. In September 1993 his probation was revoked and he was sentenced to two additional years in prison. He was paroled in October 1994.

Upon his release, the Immigration and Naturalization Service immediately sought to deport him. He attended a mass deportation hearing in El Centro, California on October 6, 1994. There, the immigration judge addressed 22 potential deportees as a group and Zarate-Martinez individually before determining that he was deportable. He was thereafter deported to Mexico. A mere three months later, on January 12, 1996, Zarate-Martinez was arrested by federal authorities after illegally reentering the United States through a hole in a fence near Nogales, Arizona. He was indicted and charged with violating 8 U.S.C. § 1326(b)(2), illegal reentry after deportation subsequent to an aggravated felony conviction. Zarate-Martinez made motions to dismiss alleging, inter alia, that: (1) he had not been convicted of an aggravated felony; (2) the unlawfulness of the underlying deportation was a due process bar to his conviction; and (3) he had been denied equal protection by California's failure to provide him substance abuse treatment following his first drug conviction in January 1993.

The district court concluded that Zarate-Martinez' prior conviction for possession of cocaine was not an aggravated felony. Rather than dismiss the indictment, the court reduced the charge to a violation of 8 U.S.C. § 1326(b)(1), reentry after deportation subsequent to a felony conviction.

The district court denied Zarate-Martinez' motion to dismiss based on unlawful deportation, holding that he had failed to show prejudice. The district court did not address the equal protection issue. On March 5, 1997, Zarate-Martinez entered a conditional guilty plea to violating § 1326(b)(1) and was sentenced to 24 months imprisonment and 36 months supervised release.

II.

In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation. United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 2155-2156, 95 L.Ed.2d 772 (1987). If the defendant's deportation proceedings fail to provide this opportunity, the validity of the deportation may be collaterally attacked in the criminal proceeding. Id. Zarate-Martinez can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. See United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir.1994). In his Supplemental Motion to Dismiss, Zarate-Martinez properly raised the due process issue in the district court. Accordingly, we are permitted to decide this issue on the merits.

A.

"Although a deportee may waive his right to judicial review of his deportation order, that waiver must be considered and intelligent. Otherwise, the deportee is deprived of judicial review in violation of due process. The government bears the burden of proving the waiver." United States v. Lopez-Vasquez, 1 F.3d 751, 753-754 (9th Cir.1993) (internal citations and quotations omitted).

We are satisfied that the government failed to meet the burden of proving that either the group colloquy or Zarate-Martinez' individual interrogation with the immigration judge met the waiver requirements we set forth in Lopez-Vasquez. 1 F.3d at 754 (prohibiting "[m]ass silent waiver"). The immigration judge first engaged in a group colloquy with the detainees. After explaining the appeals process, he asked:

THE COURT: ... You all understand that you will have the right to appeal.

A: Everyone answers yes. (Interpreter)

ER at 24 (emphasis added). This exchange is insufficient to constitute waiver. Although this question did require an audible response, it only informed the detainees of the right to appeal and suggested to them that the opportunity to appeal would be presented at some future time. The colloquy continued THE COURT:.... If anyone of you wants to fight its (sic) case to try to stay in the United States, please raise your hand. There are no hands raised.

Id. This latter exchange is indistinguishable from the silent waiver that we condemned in Lopez-Vasquez. The hand-raising request "tended to stigmatize detainees who wished to appeal and to convey a message that appeal was disfavored and contingent upon further discussion with the immigration judge." Lopez-Vasquez, 1 F.3d at 754.

The immigration judge later had an individual conversation with Zarate-Martinez:

THE COURT: Do you understand your rights?

ZARATE: Yes.

...

THE COURT: Anything else you'd like to say?

ZARATE: No.

ER at 32-33. These statements, while not suffering from the stigmatization problems of a mass silent waiver, do not qualify as an express or implied "voluntary and intelligent" waiver of his right to appeal. We conclude, therefore, that Zarate-Martinez' due process rights were violated by the defects in his deportation proceeding. This, however, is only the first prong of the necessary inquiry.

B.

To succeed in his collateral challenge, Zarate-Martinez must prove prejudice as a result of the due process violation in his deportation proceeding. United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 1096, 137 L.Ed.2d 228 (1997). This requires him to offer "plausible grounds of relief which might have been available to him but for the deprivation of rights." Leon-Leon, 35 F.3d at 1432. Zarate-Martinez argues that he was prejudiced because, had he the opportunity to appeal, he possibly could have persuaded the Board of Immigration Appeals to grant a discretionary suspension of deportation.

Prior to April 1, 1997, Zarate-Martinez would have been eligible for suspension of deportation only if he had:

been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional or extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1254(a)(2). Under the old statutory scheme, this subsection would provide the relevant analytical framework because, as discussed in part IV infra, Zarate-Martinez had been convicted of an "aggravated felony." 8 U.S.C. §§ 1251(a)(2)(A)(iii), 1254(a)(2). ¹

With the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress amended the Immigration and Naturalization Act, eliminating 8 U.S.C. § 1254 on "suspension of deportation," and replacing it with a new provision, entitled "Cancellation of removal." This section provides that an alien is eligible for cancellation of removal if he or she:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title; and

(D) establishes that removal would result in exceptional and extremely unusual...