U.S. v. Leon-Leon

• Citation: 35 F.3d 1428
• Decision Date: 16 September 1994
• Docket Number: LEON-LEO,No. 93-10162,D,93-10162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuelefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1428

35 F.3d 1428

UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel LEON-LEON, Defendant-Appellant.

No. 93-10162.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 13, 1994.

Decided Sept. 16, 1994.

Francisco Leon, Tucson, AZ, for defendant-appellant.

Joseph Koehler, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: FERGUSON, NOONAN, and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON; Dissent by Judge FERGUSON.

T.G. NELSON, Circuit Judge:

I.

Overview

Jose Manuel Leon-Leon (Leon-Leon) reentered the United States after being deported and, as a result, was convicted of violating 8 U.S.C. Sec. 1326. He appeals the district court's decision that the deportation order could be used to prove an element of Sec. 1326. He also appeals the district court's exclusion of evidence regarding his reasonable belief that he had permission to reenter the United States. We affirm.

II.

Facts and Procedural History

On November 29, 1985, Leon-Leon, a citizen of Mexico, was admitted to the United States as a permanent resident alien. On August 10, 1986, he was convicted of transporting marijuana, an aggravated felony. Pursuant to this conviction, Leon-Leon was deported to Mexico in September 1988. After his deportation, Leon-Leon made no application to the Immigration & Naturalization Service (INS) for any kind of status adjustment.

On June 9, 1992, Leon-Leon reentered the United States. The next day, he was apprehended in Douglas, Arizona, during the execution of a search warrant at the home of his ex-wife. On October 21, 1992, a superseding indictment was filed charging Leon-Leon with illegal reentry following deportation pursuant to an aggravated felony conviction in violation of 8 U.S.C. Sec. 1326(b)(2). ¹ Leon-Leon entered a plea of not guilty.

Prior to trial, Leon-Leon moved to dismiss the indictment, collaterally challenging the validity of the 1988 deportation order. The order was issued pursuant to a deportation hearing which had been conducted by telephone with the Immigration Judge (IJ) presiding in Phoenix while Leon-Leon and his attorney, Fernando Gaxiola (Gaxiola), were at the INS office in Tucson. An interpreter was provided during the hearing. She asked Leon-Leon in Spanish whether his name was Jose Manuel Leon-Leon, whether he understood Spanish, and whether Gaxiola was his attorney. Leon-Leon responded affirmatively to each of these questions. Thereafter, the IJ asked Gaxiola, in English, whether Leon-Leon waived the seven day rule with respect to the hearing, admission of service of the order to show cause, the reading of any rights and explanations required by regulation, and the reading of the order to show cause; whether Leon-Leon admitted the factual allegations; and whether he conceded Mexico was the country of deportation. Gaxiola answered affirmatively to this single, compound question which was not translated into Spanish for Leon-Leon. The district court denied Leon-Leon's motion to dismiss the indictment based on his challenge to the validity of this telephonic hearing, holding that Leon-Leon had failed to show prejudice.

Also prior to trial, the Government moved to exclude from evidence any testimony regarding Leon-Leon's possession of an I-551 Permanent Resident Alien card (green card). At the time of his reentry into the United States, Leon-Leon was in possession of a green card which had been issued on November 29, 1985, the date of his initial, legal entry into the United States. Leon-Leon sought to admit evidence of the green card to establish that he reasonably believed he had been granted permission to reenter the United States. Apparently, Leon-Leon hoped to have his ex-wife testify that the INS had contacted her and requested that she pick up Leon-Leon's green card, and after doing so, she consulted with Gaxiola who advised her the card was valid. The district court granted the prosecution's motion thereby excluding evidence of Leon-Leon's possession of the green card.

The case proceeded to trial, and a jury convicted Leon-Leon. He was sentenced to a term of 51 months with 36 months of supervised release. Leon-Leon appeals the district court's denial of his motion to dismiss the indictment and grant of the prosecution's motion in limine to exclude evidence of the green card.

III.

Discussion

A. 1988 Deportation Hearing

Whether the defects in an underlying deportation procedure invalidated the proceeding for use in a criminal proceeding is a mixed question of law and fact which we review de novo. United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir.1992) (en banc).

Leon-Leon collaterally attacks his 1988 deportation hearing arguing that he was deprived of his Fifth Amendment due process rights because the IJ abused his discretion by not requiring translation of important portions of the deportation hearing. ² Consequently, Leon-Leon argues that the deportation order could not be used to prove an element of Sec. 1326 and that the district court should have dismissed the indictment.

The Supreme Court, in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), held that an alien must be permitted to collaterally challenge a deportation order which is to be used as an element of a criminal offense. See id. at 839, 107 S.Ct. at 2155-56. Further, it held that where a deportation proceeding violates an alien's due process rights, the Government may not rely on any resulting deportation order as proof of an element of a criminal offense. See id. at 840, 107 S.Ct. at 2156.

However, in spite of any violation of the alien's due process rights, the deportation order may still be used to prove an element of a crime if the alien fails to show prejudice resulting from the violation. Subsequent to the Supreme Court's decision in Mendoza, which prohibited the use of a deportation order to prove an element of Sec. 1326 where the deportation hearing violated the alien's due process rights, we held:

A defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. Sec. 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice.

Proa-Tovar, 975 F.2d at 595. In Proa-Tovar, the Government conceded the alien did not knowingly and intelligently waive his direct appeal rights. Id. at 593. Despite the deprivation of the right to appeal, the alien was "unable to articulate any prejudice he might have suffered." Id. at 594. Consequently, we affirmed the alien's conviction under Sec. 1326.

In Proa-Tovar, we declined "to delineate the boundaries of the prejudice element." Id. at 595-96. We did note, though, that the alien in Proa-Tovar pointed "to no plausible grounds of relief that might have been available to him on appeal." Id. at 594. The only circumstance under which we suggested no showing of prejudice was necessary was "when the administrative proceedings were so flawed" that an effective judicial review of a deportation, which might otherwise have been prevented, would be foreclosed. Id. at 595. However, this was not the case in Proa-Tovar where "[t]he lack of a direct appeal only resulted in [the alien] leaving at a somewhat earlier time" because he would have been deported anyway. Id.

In this case, we hold that Leon-Leon's due process rights were violated during the deportation hearing. Although Leon-Leon was not entitled to translation of the entire hearing, the IJ was required to exercise his discretion to determine that portion of the proceeding to be translated in order to protect Leon-Leon's reasonable opportunities to show why he should not be deported. El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 752 (9th Cir.1992). By failing to translate crucial inquiries at the deportation hearing, the IJ deprived Leon-Leon of this reasonable opportunity. Thus, we hold that he abused his discretion when he asked Leon-Leon in a single, compound, untranslated question whether he waived his rights and whether he admitted he was deportable.

However, in spite of this due process violation, Leon-Leon failed to show any prejudice resulting from the violation. Like the alien in Proa-Tovar, Leon-Leon offers no plausible grounds of relief which might have been available to him but for the deprivation of rights. Instead, Leon-Leon argues prejudice should be presumed. However, we have clearly held the alien has the burden of proving prejudice in such circumstances. Proa-Tovar, 975 F.2d at 595. Furthermore, although the IJ abused his discretion by failing to have important portions of the hearing translated, Leon-Leon failed to refute the fact that he is clearly deportable.

It has now been six years since Leon-Leon was deported to Mexico, two years since he was arrested in August 1992, and two years since Proa-Tovar was decided in September 1992. Leon-Leon has not offered to prove that he was actually prejudiced by the due process violations at the 1988 hearing. The lack of such evidence entitles us to conclude that he would have been deported in 1988 even if the hearing had been perfectly conducted.

A deportation hearing is not a criminal trial and need not be conducted as such. An alien's due process rights are adequately protected if, as permitted by Mendoza-Lopez and Proa-Tovar, he can establish in a later criminal case that the defects in the deportation hearing actually prejudiced him. A showing of prejudice deprives the Government of the foundation of the illegal reentry charge which is a sufficient vindication of the alien's rights to due process. A prophylactic rule aimed at encouraging INS hearing officers to do a better job by not requiring a showing of prejudice in the later criminal trial was specifically rejected by the en banc court in Proa-Tovar. See 975 F.2d at...