224 F.3d 1076 (9th Cir. 2000), 99-50368, United States v. Arrieta

Docket Nº:99-50368, 99-50422
Citation:224 F.3d 1076
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. JUAN MARIO ARRIETA, Defendant-Appellant-Cross-Appellee.
Case Date:September 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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224 F.3d 1076 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant,

v.

JUAN MARIO ARRIETA, Defendant-Appellant-Cross-Appellee.

Nos. 99-50368, 99-50422

United States Court of Appeals, Ninth Circuit

September 25, 2000

Argued and Submitted June 5, 2000--Pasadena, California

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[Copyrighted Material Omitted]

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COUNSEL: Elizabeth A. Newman and Amy Fan Saint Martin, Deputy Federal Public Defenders, Office of the Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Jean Rosenbluth, Assistant United States Attorney, United States Attorney's Office, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California D.C. No. CR-98-01050-JSL-1

Before: Warren J. Ferguson, Robert Boochever, and Stephen Reinhardt, Circuit Judges.

OPINION

FERGUSON, Circuit Judge:

Defendant Juan Mario Arrieta appeals his conviction for reentering the United States after being deported, in violation of 8 U.S.C. S 1326. Mr. Arrieta claims that the district court erred when it denied his motion to dismiss the indictment because his underlying deportation was invalid. We have jurisdiction pursuant to 28 U.S.C. S 1291 and REVERSE.

I. BACKGROUND

Mr. Arrieta first entered the United States in 1986 when his mother brought him here at the age of nine. Ten years later, in 1996, Mr. Arrieta was convicted in California of attempted forcible rape and sentenced to serve one year in a county jail.

Upon his release, the Immigration and Naturalization Service ("INS") instituted deportation proceedings against Mr. Arrieta. In May 1997, Mr. Arrieta and 13 other aliens appeared before an immigration judge ("IJ") for a group deportation hearing. During the hearing, the IJ informed the group that they had the right to "present evidence,""call witnesses," and "show me documents." In addition, he told the group that if they disagreed with his decision, they could "appeal the case to a higher court." The IJ also informed the group that if they did not appeal their case, then the decision was final. When the IJ asked if they understood these rights, they collectively answered "Yes."

Subsequently, the IJ addressed Mr. Arrieta individually and asked him whether he understood the rights he had explained to the group. Mr. Arrieta answered that he did. Mr. Arrieta then admitted that (1) he was not a citizen of the United States; (2) he was convicted in California of a serious offense; and (3) he had entered the United States illegally. Based on these facts, the IJ ordered that Mr. Arrieta be deported. The IJ then asked Mr. Arrieta whether he accepted his decision or whether he wanted to appeal the decision. Mr. Arrieta responded that he accepted his decision. Accordingly, the IJ stated that his order was final, and Mr. Arrieta was deported.

In October 1998, Mr. Arrieta was arrested and charged with reentering the United States following deportation in violation of 8 U.S.C. S 1326. Prior to pleading guilty, Mr. Arrieta filed a motion to dismiss the indictment based on his belief that the underlying deportation proceeding violated his right to due process. The district

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court disagreed and denied the motion. Mr. Arrieta filed a timely notice of appeal.

II. DISCUSSION

"In a criminal prosecution under S 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation."

United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998) cert. denied, 525 U.S. 849 (1998). 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. The defendant "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." Id.

A. Due Process Violation

In a criminal proceeding, an alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. See United States v. EstradaTorres, 179 F.3d 776, 780-81 (9th Cir. 1999). In order for the waiver to be valid, however, it must be both "considered and intelligent." Id.; See United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987).

In this case, Mr. Arrieta argues persuasively that he could not make a considered and intelligent decision about his right to appeal because the IJ never informed him of his eligibility for a S 212(h) waiver. See 8 U.S.C. S 1182(h). We have stated that where the record contains an inference that the petitioner is eligible for relief from deportation,"the IJ must advise the alien of this possibility and give him the opportunity to develop the issue." Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir. 1989). Indeed, we have found this requirement to be "mandatory." United States v. ArceHernandez, 163 F.3d 559, 563 (9th Cir. 1998). In ArceHernandez, the IJ erred by failing to advise the alien of his right to apply...

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