U.S. v. Girosky-Garibay

Decision Date27 November 2001
Docket NumberNo. EP-01-CR-1238-DB.,EP-01-CR-1238-DB.
PartiesUNITED STATES of America v. Andres GIROSKY-GARIBAY
CourtU.S. District Court — Western District of Texas

James N. Langell, Federal Public Defender's Office, Andres Girosky-Garibay, El Paso, TX, for Andres Girosky-Garibay (1), defendants.

Thomas Clair Roepke, United States Attorney's Office, El Paso, TX, for U.S. Attorneys.

ORDER

BRIONES, District Judge.

On this day, the Court considered Defendant Andres Girosky-Garibay's Motion to Dismiss the Indictment filed in the above-captioned cause on October 3, 2001.1

On July 18, 2001, Defendant was indicted pursuant to 8 U.S.C. § 1326.2 Thereafter, Defendant filed the instant Motion to Dismiss challenging the validity of his prior order of removal from the United States upon which the Government bases its charge of illegal re-entry after deportation pursuant to 8 U.S.C. § 1326. The Government filed a Response on October 12, 2001. On October 16, 2001, the Court held a hearing to consider the Motion.

After due consideration, the Court is of the opinion that Defendant's Motion should be granted for the reasons set forth below.

BACKGROUND

Defendant, a citizen of Mexico, became a Lawful Permanent Resident in January of 1982. On July 10, 1998, Defendant was convicted in the 168th District Court of El Paso County of felony offense of driving while intoxicated ("DWI"), 3rd Degree, in violation of 6701L-1 of the Texas Motor Vehicle Law. Defendant was sentenced to five years of incarceration, subsequently suspended, and was placed on community supervision for five years. Based on this conviction, the Immigration and Naturalization Service ("INS") initiated removal proceedings in September of 1998 by issuing a Notice to Appear. Following an individual hearing, an Immigration Judge ("IJ") ordered Defendant removed from the United States on November 23, 1998. The IJ found that the felony DWI conviction was a "crime of violence" as defined by 8 U.S.C. § 1101(a)(43)(F)3 and thus an aggravated felony. The IJ further held that because Defendant had been convicted of an aggravated felony, he was not eligible for Cancellation of Removal pursuant to 8 U.S.C. § 1229b(a). Defendant appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which upheld the IJ's decision. Defendant was deported on January 28, 2000.

According to the Indictment in the instant case, subsequent to his removal from the United States, Defendant re-entered the United States on June 30, 2001. On July 18, 2001, Defendant was indicted pursuant to 8 U.S.C. § 1326(a) and (b)(1).4 The Indictment further alleges that Defendant, who had been excluded, deported, and removed from the United States, had not received the consent of the Attorney General to re-apply for admission before he attempted to enter, entered, or was found in the United States. The Indictment includes a Notice of a Penalty Enhancement filed pursuant to 8 U.S.C. § 1326(b)(1) alleging that Defendant's removal was subsequent to Defendant's conviction for the felony offense of DWI.5

DISCUSSION

Defendant filed the instant Motion arguing that his removal proceeding was so fundamentally unfair and prejudicial in violation of his due process rights that under United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), his removal cannot be used as an element in this prosecution. In Defendant's underlying removal proceedings, the IJ held that felony DWI in Texas is an aggravated felony. Based on this conviction and a finding that Defendant was not eligible for relief, the IJ removed Defendant from the United States. Defendant primarily argues that the underlying order of removal violates his due process rights because the IJ erroneously interpreted the law. Specifically, after Defendant was removed from the United States, the Fifth Circuit, in United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir.2001), held that a felony DWI conviction in Texas is not a crime of violence and hence not an aggravated felony.

In order to successfully challenge the use of a prior removal order in a prosecution for illegal re-entry under 8 U.S.C. § 1326, Defendant must satisfy both the requirements of United States v. Mendoza-Lopez and 8 U.S.C. § 1326(d). In Mendoza-Lopez, the Supreme Court held that a Defendant may challenge the validity of an underlying order of deportation in a criminal prosecution in which that prior deportation is an element of the crime. Mendoza-Lopez, 481 U.S. at 839, 107 S.Ct. at 2155. The Fifth Circuit, interpreting Mendoza-Lopez, held that in order to successfully challenge the validity of an underlying deportation order, an alien must establish that: "(1) the prior hearing was `fundamentally unfair'; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice." United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir.2000) (citations omitted). If an alien fails to establish one of the elements, the court need not consider the others. United States v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th Cir.1992) (citations omitted).

According to the Fifth Circuit, Congress effectively codified its interpretation of Mendoza-Lopez in 8 U.S.C. § 1326(d), which provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) of this section unless the alien demonstrates that:

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceeding at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C.A. § 1326(d)(West Supp.2001); See also United States v. Benitez-Villafuerte, 186 F.3d 651, 658 n. 8 (5th Cir.1999).

A. The Retroactive Application of United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001)

In Defendant's underlying deportation proceedings, the IJ found that a felony DWI in Texas was an aggravated felony under the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). The IJ's decision was consistent with the decision of the Board of Immigration Appeals ("BIA") in In re Puente-Salazar, in which that court held that a felony DWI in Texas was a "crime of violence" and therefore an aggravated felony under 8 U.S.C.A. § 1101(a)(43)(F). In re Puente-Salazar, Inter. Dec. 3412, 1999 WL 770709 (B.I.A.1999).

In Chapa-Garza, the Fifth Circuit reached a different conclusion. The Court, recognizing that its decision was inconsistent with Camacho-Marroquin v. INS., held that a Texas conviction for felony DWI is not classifiable as a crime of violence under 8 U.S.C. § 1101(a)(43)(F) and is therefore not an aggravated felony. Chapa-Garza, 243 F.3d at 927; see Camacho-Marroquin v. INS, 188 F.3d 649, 652 (5th Cir.1999), opinion withdrawn Camacho-Marroquin v. INS, 222 F.3d 1040 (5th Cir.2000)(holding that a felony DWI in Texas was a "crime of violence" and therefore an aggravated felony under IIRIRA). Under 8 U.S.C. § 1101(a)(43)(F), an aggravated felony is defined as "a crime of violence (as defined in Section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year." The Court, interpreting the statute, determined that a Texas DWI conviction is not a crime of violence as defined by 18 U.S.C. § 16(b).6 Id.

As a preliminary matter, the Government contends that the Fifth Circuit's decision in Chapa-Garza may not be applied retroactively because it is a new rule of civil law. The Government, citing Harper v. Virginia Depart. of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993), argues that new rules of civil law can only be applied retroactively in those cases still on direct review.

The Court finds that the Government's argument is without merit. Even assuming that the Court in Chapa-Garza announced a new rule of civil law, the holding in Harper could not apply to challenges to the validity of deportation proceedings filed pursuant to Mendoza-Lopez or 8 U.S.C. § 1326(d). Harper requires that in order to apply a civil rule retroactively, the case must still be on direct review. However, the requirements of Mendoza-Lopez and 8 U.S.C. § 1326(d) preclude the application of Harper because in order to succeed under these actions, a Defendant must demonstrate that there was no opportunity for meaningful direct review.

In any event, the Court is of the opinion that the Government is incorrect in classifying the decision in Chapa-Garza as a new rule of civil law. The Fifth Circuit in Chapa-Garza determined the meaning of "a crime of violence;" it did not announce a new rule of civil law. A court's interpretation of a statute may be applied retroactively. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 311, 114 S.Ct. 1510, 1518, 128 L.Ed.2d 274 (1994) (stating that "[t]he principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.") (citations omitted). In United States v. Lopez, 248 F.3d 427 (5th Cir.2001), the Fifth Circuit applied the Supreme Court's holding in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) retroactively to a Motion to Vacate, Set Aside, or Correct his Sentence filed pursuant to 28 U.S.C. § 2255. The Court found that the bar to the retroactive application of "new constitutional rules of criminal procedure" under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) was inapplicable, "because Richardson consisted of the Supreme Court's interpretation of a statute." Lopez, 248 F.3d at 431-32; see also United States v. McPhail, 112 F.3d 197 (5th Cir.1997)...

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