186 F.3d 651 (5th Cir. 1999), 160;

Docket Nº:160;
Citation:186 F.3d 651
Party Name:United States v Benitez-Villafuerte
Case Date:August 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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186 F.3d 651 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellant,



No. 98-10730


August 24, 1999

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Appeal from the United States District Court for the Northern District of Texas

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

On July 2, 1997, Gabriel Benitez-Villafuerte ("Benitez") was deported from the United States under the expedited removal procedure set forth in 8 U.S.C. § 1228. Soon thereafter, he illegally reentered. This appeal arises out of the government's criminal prosecution of Benitez under 8 U.S.C. § 1326(a) and (b)(2) for that illegal reentry. In this prosecution, the government has the burden to prove that Benitez had been previously deported. During the prosecution of this case, Benitez collaterally attacked the constitutionality of the previous § 1228 proceeding under United States v. Mendoza-Lopez, 481 U.S. 828 (1987), and moved the district court to suppress the evidence of his deportation. The district court granted the motion. It noted that Benitez had waived his rights to judicially contest that deportation only before the INS officers and that he had not been taken before any neutral magistrate before he was deported. Consequently, it held that Benitez's deportation had failed to comport with Fifth Amendment procedural due process. We hold that waiver of rights in an administrative deportation under § 1228 satisfies procedural due process. As such, since the record of Benitez's § 1228 proceeding is not constitutionally tainted, it is admissible in this case. For the reasons that follow, we reverse the judgment of the district court and remand the case for trial.



On February 13, 1997, Gabriel Benitez-Villafuerte, a Mexican national, was convicted in Dallas County, Texas, of theft of property exceeding $1,500 in value, in violation of Texas Penal Code § 31.03.1 Benitez received a suspended sentence of two years imprisonment.

Sometime later, Benitez was apprehended by the local authorities and placed in the Dallas County jail.2 On June 30, 1997, Benitez was removed from jail and detained by the Immigration and Naturalization Service (the "INS"). After interviewing Benitez in English and reviewing his conviction documents, Border Patrol Agent Michael Winfrey recommended to his supervisor, Debbie Bryant, that because of Benitez's prior felony conviction, he was subject to deportation from the United States. Consequently, the INS initiated expedited removal proceedings against Benitez under 8 U.S.C. § 1227(a)(2)(A)(iii)3 and 8 U.S.C. § 1228.4

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The deportation was administratively conducted by the INS. INS Assistant Deputy Director Neil Jacobs prepared and signed the Notice of Intent to Issue Final Administrative Removal Order ("Notice of Intent"), the initial charging document, alleging that: (1) Benitez entered the United States on or about January 20, 1997, near Laredo, Texas, without inspection by an immigration officer; (2) Benitez had not been admitted for permanent residence in the United States; (3) Benitez had been convicted of theft on February 13, 1997, which constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)5; and, thus, (4) Benitez was deportable under § 1227(a)(2)(A)(iii). Agent Winfrey served Benitez with the Notice of Intent form, and read the contents of the document to him in English. Benitez, in turn, signed the second page of the Notice of Intent form, acknowledging its receipt. After indicating that he wished to return to Mexico, Benitez signed the "waiver" portion of the Notice of Intent form, which provided :


"I admit the allegations and charges of this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the final order. I wish to be deported.

I also waive the 14 day period of execution for the final order of removal...."

(1 R 0085).

A second INS agent, Detention Enforcement Officer Darrell Russell, witnessed Benitez's signature, and attested to such on the Notice of Intent form. That same day, INS Deputy District Director William G. Harrington executed a Final Administrative Removal Order (the "Removal Order"), which was also served on Benitez and read to him in English. In the Removal Order, Harrington made the following findings of fact and conclusions of law: (1) Benitez was not a citizen or national of the United States, nor had he been lawfully admitted for permanent residence; (2) Benitez had been convicted of an aggravated felony as defined in § 1101(a)(43)(G) and therefore was ineligible for any discretionary relief from removal that the Attorney General may grant; and (3) the administrative record established by clear, convincing, and unequivocal evidence that Benitez was deportable under § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. The Removal Order further decreed that Benitez was to be deported to Mexico. Consequently, on July 2, 1997, Russell served Benitez with a warrant of deportation, and he was subsequently deported.

In less than a year, Benitez had reentered the United States. On January 5, 1998, he was arrested in Dallas, Texas. While incarcerated, Benitez was questioned by INS agents, and a criminal investigation of his alien status was initiated.

On March 3, Benitez was indicted on one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2)6. Following a plea of not guilty,

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Benitez filed a motion to suppress the evidence of his prior deportation on the grounds that it violated his right to procedural due process.7 The district court granted Benitez's motion to suppress.

The district court reasoned that because Benitez's waiver of rights in the § 1228 proceeding was not before a neutral magistrate who formally advised Benitez of his basic rights, including the right to contest his expedited removal, his waiver did not comport with constitutional due process. The district court therefore suppressed the evidence of Benitez's July 2, 1997 deportation. The government filed a timely appeal.



The district court held that before evidence of a § 1228 administrative deportation can be introduced in a subsequent criminal trial for alleged reentry, the administrative deportation must satisfy the strictest standards for due process usually applicable only in criminal trials. Specifically, the district court held that Benitez's waiver of rights executed before INS officers did not constitute an effective waiver of his basic rights to judicially contest his deportation because his waiver had not been made in open court before a neutral magistrate who could affirm that the waiver was knowing and voluntary. Thus, the district court concluded that his deportation was ordered in violation of his Fifth Amendment due process rights, and evidence thereof is inadmissible. The district court was unable to cite any authority in support of its holding. This lack of authority is not surprising since such a high hurdle has not before been raised in order to comply with the basic notions of due process in a deportation case.

Aliens who have entered the United States unlawfully are assured the protection of the Fifth Amendment due process clause. Nose v. Attorney General of the United States, 993 F.2d 75, 78 (5th Cir. 1993); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1036 (5th Cir. 1992). The due process clause forbids the state from "arbitrarily . . . causing an alien who has entered the country . . . illegally to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States." Yamataya v. Fisher, 189 U.S. 86, 101, 23 S.Ct. 611, 614-15, 47 L.Ed. 721 (1903). Courts have recognized that the constitutional sufficiency of procedures required by due process varies with the circumstances of each individual case. Landon v. Plasencia, 459 U.S. 33 (1982), citing Lassiter v. Department of Social Services, 452 U.S. 18, 24-25, 101 S.Ct. 2153, 2158 (1981). Generally, the right to due

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process includes the right to a hearing before an immigration judge prior to deportation. Nose, 993 F.2d at 79. Nevertheless, due process rights, including the right to a hearing, may effectively be waived. Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971)(holding "the hearing required by due process is subject to waiver").

A deportation hearing is a civil, not a criminal, action. Prichard-Ciriza v. I.N.S., 978 F.2d 219, 222 (5th Cir. 1992) (citing I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984); Carlson v. Landon, 342 U.S. 524, 538 (1952). As such, the full range of constitutional protections available to a defendant in a criminal case are not afforded an alien in a deportation proceeding. Id.; Patel v. U.S. I.N.S., 803 F.2d 804, 806 (5th Cir. 1986) (citations omitted); Ramirez-Osorio v. I.N.S., 745 F.2d 937, 944 (5th Cir. 1984) (citations omitted). "The power to expel aliens is essentially a power of the political branches of government, which may be exercised entirely through executive officers, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit." Carlson v. Landon 342 U.S. 524, 537 (1952) (citations omitted). See also The Japanese Immigrant Case, 189 U.S. 86, 97-98 (1903); Fong Yue Ting v. United States, 149 U.S. 698, 713-15 (1893). Although in some contexts, Congress has statutorily provided for the judicial review of deportation hearings, such review is not guaranteed by the...

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