249 F.3d 1180 (9th Cir. 2001), 00-50016, United States v. Muro-Inclan

Docket Nº00-50016
Citation249 F.3d 1180
Party NameUNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JUAN MANUEL MURO-INCLAN, DEFENDANT-APPELLANT.
Case DateMay 08, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1180

249 F.3d 1180 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JUAN MANUEL MURO-INCLAN, DEFENDANT-APPELLANT.

No. 00-50016

United States Court of Appeals, Ninth Circuit

May 8, 2001

Argued and Submitted February 15, 2001

Page 1181

Maria Elena Stratton, Federal Public Defender, Richard D. Burda, Deputy Federal Public Defender, Los Angeles, California, for the appellant.

Timothy Searight, Assistant United States Attorney, Los Angeles, California, for the appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding. D.C. No. CR-99-10 DOC

Before: A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Thomas Zilly, District Judge.1

Zilly, District Judge

Appellant Juan Manuel Muro-Inclan appeals the district court's denial of his motion to dismiss the indictment. Appellant argues that he could not be convicted under 8 U.S.C. §§ 1326 as an illegal alien found in the United States following deportation because his due process rights were violated at his prior deportation proceedings. We affirm.

PROCEDURAL HISTORY

On February 2, 1999, Appellant Juan Manuel Muro-Inclan was indicted on one count of Illegal Alien Found in the United States Following Deportation in violation of 8 U.S.C. §§ 1326. On May 27, 1999, Appellant filed a Motion to Dismiss Charge Based On Unlawful Deportation Hearings. In the motion, Appellant argued that the underlying deportation proceedings were invalid because he had never been informed of his possible eligibility for a waiver of deportation under 8 U.S.C. 1182(h)(a "212(h) waiver"), and therefore the deportation proceedings violated his due process rights. On June 23, 1999, the District Court held a hearing on the motion, and on June 25, 1999, the court issued a written Order denying the motion. Appellant then entered a conditional guilty plea, reserving his right to appeal the denial of the motion to dismiss. At sentencing, Appellant received a 16 point enhancement based on prior aggravated felony convictions,

Page 1182

and he was sentenced to 77 months incarceration.

Appellant then filed the present appeal of the denial of his motion to dismiss. He has also filed a supplemental brief arguing for the first time on appeal that his sentence of 77 months violates Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Appellant alleges that Apprendi was violated because his sentence was enhanced based on prior aggravated felony convictions that were neither admitted nor submitted to a jury and proven beyond a reasonable doubt.

IMMIGRATION HISTORY

Appellant was brought to the United States by his parents as an infant. In 1984, he married a United States citizen, and they have three children who are United States citizens. Appellant's parents are lawful permanent residents of the United States. Appellant has never achieved lawful permanent resident status. He has been deported from the United States on five separate occasions.

LEGAL STANDARD

A. Due process requirements.

The Court of Appeals reviews de novo the denial of a motion to dismiss an 8 U.S.C. §§ 1326 indictment when the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding. See United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000), citing United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992)(en banc).

8 U.S.C. §§ 1326 prohibits any alien from entering the United States after he has "been denied admission, excluded, deported or removed[.]" 8 U.S.C. §§ 1326(a). The maximum sentence is two years unless the removal was subsequent to criminal convictions. A 10 year maximum sentence applies if removal followed "commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony[.]" 8 U.S.C. §§ 1326(b)(1). A 20 year maximum sentence applies if removal followed "conviction for commission of an aggravated felony[.]" 8 U.S.C. §§ 1326(b)(2).

In a criminal prosecution under 8 U.S.C. §§ 1326, "the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000), quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). Therefore, "the validity of the deportation may be collaterally attacked in the criminal proceeding." Arrieta, 224 F.3d at 1079. Such a collateral attack will only succeed where the defendant demonstrates 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.

However, an alien is barred from collaterally attacking an underlying deportation order "if he validly waived the right to appeal that order" during the deportation proceedings. Arrieta, 224 F.3d at 1079, citing United States v. Estrada-Torres, 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.' " Arrieta, 224 F.3d at 1079, citing United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987). Such a waiver is not "considered and intelligent" when "the record contains an inference that the petitioner is eligible for relief from deportation," but the Immigration Judge fails to "advise the alien of this possibility and give him the opportunity to develop the issue." Arrieta 224 F.3d at 1079, quoting Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir. 1989).

Appellee asserts, and the district court agreed, that Appellant is barred from pursuing his due process claim because he did

Page 1183

not seek administrative review of his previous deportation orders, and therefore has not met the requirement of 8 U.S.C. §§ 1326(d) to exhaust administrative remedies. The district judge concluded that because Appellant waived his right to appeal at the 1995, 1996, and 1997 deportation hearings he failed to exhaust administrative remedies.

However, as discussed directly above, due process requires that such a waiver of appeal be "considered and intelligent." Arrieta, 224 F.3d at 1079. The exhaustion requirement of 8 U.S.C.§§ 1326(d) cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process. See United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000)(for a waiver of appeal to be valid, "such a waiver must be `considered and intelligent.' ")(internal citations omitted); United States v. Andrade-Partida, 110 F.Supp.2d 1260, 1269 (N.D.Cal. 2000)(holding that the exhaustion requirement of 8 U.S.C. §§ 1326(d) should be "waived . . . because defendant was not adequately informed of his right to appeal to the BIA. Because of the IJ's error, defendant unintelligently waived his administrative remedies.")2

INS regulations require that a person facing deportation be advised of the possibility for relief from deportation. 8 C.F.R. §§ 240.49(a)("The immigration judge shall inform the respondent of his or her apparent eligibility to apply for . . . [a waiver of deportation] and shall afford the respondent an opportunity to make application therefor during the hearing.")3 This Court has repeatedly held that this provision is "mandatory." See Arrieta, 224 F.3d at 1079; United States v. ArceHernandez, 163 F.3d 559, 563 (9th Cir. 1998). Accordingly, where the record, "fairly reviewed by an individual who is intimately familiar with the immigration laws - as IJs no doubt are - raises a reasonable possibility that the petitioner may be eligible for relief, the IJ must inform the alien of this possibility and give him the opportunity to develop the issue." Moran-Enriquez, 884 F.2d at 423. Immigration Judges "are not expected to be clairvoyant; the record before them must fairly raise the issue." Id. at 422. Failure to so inform the alien is a denial of due process that invalidates the underlying deportation

Page 1184

proceeding. See Arrieta, 224 F.3d at 1079.

Section 212(h) of the Immigration and Naturalization Act, codified at 8 U.S.C. §§ 1182(h), provides one available avenue of relief from deportation. This provision allows the Attorney General to waive deportation

in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

8 U.S.C. §§ 1182(h)(1)(B). Therefore, when the record before the Immigration Judge "raises a reasonable possibility" of relief from deportation under this provision, it is a denial of due process to fail to inform an alien of that possibility at the deportation hearing. See Arrieta, 224 F.3d at 1079.

The government argues that this provision was not an available avenue of relief from deportation at the time of Appellant's 1997 deportation. It asserts that "[section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was the controlling authority. Section 440(d) divested the Attorney General of the discretion to relieve from deportation those persons who had previously been convicted of aggravated felonies." However, AEDPA Section 440(d) did not divest the Attorney General of discretion to grant relief from deportation under 8 U.S.C. §§ 1182(h). AEDPA section 440(d), Pub.L. 104-132, 110 Stat. 1277 (Apr. 24, 1996), modified 8 U.S.C. §§ 1182(c). That subsection provided discretionary relief from deportation for "[a]liens lawfully admitted for permanent resident [sic] who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years[.]" This was not...

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  • 18 F.Supp.3d 1015 (S.D.Cal. 2014), 13-CR-4313-BTM, United States v. Morales-Landa
    • United States
    • Federal Cases United States District Courts 9th Circuit Southern District of California
    • April 18, 2014
    ...proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. Defendant argues that he is excused from the exhaustion requirement. Although he received a form asking whether he challenged h......
  • 907 F.Supp.2d 1068 (N.D.Cal. 2012), CR-12-0155 EMC, United States v. Reyes
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    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • November 2, 2012
    ...States v. Castaneda-Barajas, CR-11-2069-RMP, 2011 WL 3626786, at *3 (E.D.Wash. Aug. 16, 2011) (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1184 (9th Here, because of the incorrect determination that Defendant was ineligible for voluntary departure, Defendant was not informed of his......
  • United States v. Cervantes-Valencia, 042512 ORDC, 03:11-cr-00326-HZ-1
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • April 25, 2012
    ...if he or she "validly waived the right to appeal that order during the deportation proceedings." United States v. Muro-Inclan , 249 F.3d 1180, 1182 (9th Cir. 2001) (citations omitted). "The government bears the burden of proving valid waiver in a collateral attack of the unde......
  • United States v. Reyes-Romero, 070218 PAWDC, 2:17-cr-292
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • July 2, 2018
    ...Defendant is excused from showing an exhaustion of administrative remedies. Id. at 220 (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001), for the conclusion that § l326(d)'s exhaustion requirement "cannot bar collateral review of a depo......
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171 cases
  • 18 F.Supp.3d 1015 (S.D.Cal. 2014), 13-CR-4313-BTM, United States v. Morales-Landa
    • United States
    • Federal Cases United States District Courts 9th Circuit Southern District of California
    • April 18, 2014
    ...proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. Defendant argues that he is excused from the exhaustion requirement. Although he received a form asking whether he challenged h......
  • 907 F.Supp.2d 1068 (N.D.Cal. 2012), CR-12-0155 EMC, United States v. Reyes
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • November 2, 2012
    ...States v. Castaneda-Barajas, CR-11-2069-RMP, 2011 WL 3626786, at *3 (E.D.Wash. Aug. 16, 2011) (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1184 (9th Here, because of the incorrect determination that Defendant was ineligible for voluntary departure, Defendant was not informed of his......
  • 327 F.Supp.3d 855 (W.D.Pa. 2018), 2:17-cr-292, United States v. Reyes-Romero
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • July 2, 2018
    ...Defendant is excused from showing an exhaustion of administrative remedies. Id. at 220 (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001), for the conclusion that § 1326(d)’s exhaustion requirement "cannot bar collateral review of a depo......
  • United States v. Cervantes-Valencia, 042512 ORDC, 03:11-cr-00326-HZ-1
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Oregon
    • April 25, 2012
    ...if he or she "validly waived the right to appeal that order during the deportation proceedings." United States v. Muro-Inclan , 249 F.3d 1180, 1182 (9th Cir. 2001) (citations omitted). "The government bears the burden of proving valid waiver in a collateral attack of the unde......
  • Request a trial to view additional results