U.S. v. Pallares-Galan

• Citation: 359 F.3d 1088
• Decision Date: 20 February 2004
• Docket Number: No. 02-10532.,02-10532.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Alfredo PALLARES-GALAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

359 F.3d 1088

UNITED STATES of America, Plaintiff-Appellee, v. Jose Alfredo PALLARES-GALAN, Defendant-Appellant.

No. 02-10532.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 2003 — San Francisco, California.

Filed February 20, 2004.

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Franny A. Forsman, Federal Public Defender, Jason F. Carr, Assistant Federal Public Defender, Las Vegas, Nevada, for the appellant.

Robert Bork, Assistant United States Attorney, Las Vegas, Nevada, for the appellee.

Appeal from the United States District Court for the District of Nevada; Kent J. Dawson, District Judge, Presiding. D.C. No. CR-01-00309-KJD.

Before: STEPHEN REINHARDT, EUGENE E. SILER,^* and MICHAEL DALY HAWKINS, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Pallares-Galan appeals from a judgment of conviction following a conditional plea of guilty to one count of unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326. We are required to decide whether a California Annoying or Molesting a Child Under 18 misdemeanor conviction, Cal. Pen.Code § 647.6(a), constitutes an aggravated felony conviction, specifically, "sexual abuse of a minor," 8 U.S.C. § 1101(a)(43)(A), for purposes of deportation law, see 8 U.S.C. § 1227(a)(2)(A)(iii). We hold that it does not, and consequently, that Pallares was eligible for discretionary relief from deportation in the form of cancellation of removal (8 U.S.C. § 1229b). Because the Immigration Judge erroneously advised Pallares that he was not eligible, and because Pallares' waiver of his right to appeal the removal order was not "considered and intelligent" for that and other reasons, we conclude that his claim is not barred by the exhaustion requirement of 8 U.S.C. § 1326(d)(1), and further, that the underlying deportation order was procedurally defective. We REVERSE and REMAND with directions to the district court to consider whether Pallares suffered prejudice as a result, and, accordingly, whether the indictment should be dismissed.

I. BACKGROUND

Mexican national Jose Alfredo Pallares-Galan became a Lawful Permanent Resident on December 1, 1989. In January 1997, he pled no contest in the Municipal Court to the charge of Inflicting Corporal Injury Upon a Spouse, a misdemeanor violation under California Penal Code § 273.5(a). In July 1999, Pallares was charged before the Municipal Court with one count of Annoying or Molesting a Child Under 18, in violation of California Penal Code § 647.6(a), and three counts of Indecent Exposure, in violation of California Penal Code § 314(1).¹ The four misdemeanor offenses were alleged to have occurred on the same day, and appear, from the limited description in the state criminal complaint, to have arisen from a single incident. Initially, Pallares pled not guilty to all four offenses. Thereafter, he moved to withdraw his plea of not guilty to the first count and instead entered a plea of no contest to the charge of Annoying or Molesting a Child Under 18 in exchange for the dismissal of the three counts of Indecent Exposure. He was sentenced to 36 months summary probation with the condition that he serve 180 days in the county jail.

On November 3, 1999, the INS served Pallares with a Notice To Appear alleging that he was subject to removal from the United States due to the 1997 Corporal Injury misdemeanor conviction, which was stated as the sole ground for removal under 8 U.S.C. § 1227(a)(2)(E)(i). At the December 1999 hearing, the Immigration Judge ("IJ") found that the charge of removal was sustained and informed Pallares that he might be eligible for discretionary relief from deportation in the form of cancellation of removal (8 U.S.C. § 1229b).² Pallares prepared an application for cancellation of removal which lists his employment history, states that he filed an income tax return between 1986 and 1998 and reports that he has never received public assistance. The application also states that Pallares' wife, a Mexican national and legal permanent resident, resides in California and is employed as a teacher's aide, and that the couple has two children.

On December 27, 1999, the government served Pallares with Additional Charges of Inadmissibility/Deportability based on the 1999 Annoy/Molest conviction. Subsequently, on January 5, 2000, the government moved to pretermit Pallares' application for cancellation of removal. The final removal hearing occurred two days later, on January 7, 2000. At that hearing, the IJ questioned Pallares about the 1999 conviction for Annoying or Molesting a Child Under 18, and Pallares responded:

I have never touched anyone in my life. I've never touched anyone. Not even in my mind have I had any intention of harming anyone because I have children myself.

Thereafter, the IJ asked whether he had nevertheless pled guilty. Pallares replied:

It's correct, uh, I heard the charge and I knew it wasn't so bad in my heart that I accepted it. The other two charges I was threatened and I have not hurt anyone.

The IJ then proceeded to declare that the Annoy/Molest misdemeanor conviction qualified as an "aggravated felony" for deportation purposes:

The BIA in a decision of a case here in Florence, determined that the conviction for that in California is an aggravated felony because it involves the sexual abuse of a minor. Now that's not, as far as I know, that's not a precedent decision, but it's a decision which came out of the immigration court in Florence ... U ... so my decision ... U ... this additional charge has been sustained. You have been convicted of an aggravated felony. What that means sir is that I cannot consider your application for cancellation of removal, because cancellation of removal requires that a person not be convicted of an aggravated felony. So my decision would be that you are not eligible for cancellation. I don't see that you are eligible for any other relief to stay in the United States. So my decision is that you ... U ... be removed from the United States ...

Finally, after completing her statement of decision, the judge engaged Pallares in a tangled exchange regarding his right to appeal:

IJ: ... Do you want to appeal my decision?

Respondent: How long might it take me to appeal my decision?

IJ: I can't tell you exactly how long the appellate court will take. But judging from the past, I would say it would take six to eight months for the appellate court to make a decision.

Respondent: I swear to you for God that I haven't done anything. And if your honor would give me the opportunity to leave OR I would fight this for my children who need me.

IJ: Sir, I can't ... give you OR to leave ... so, it's up to you, if you want to appeal my decision, you can appeal. I'll give you the papers necessary to file your appeal. ...

Respondent: It would be better if I leave my children, that's fine.

IJ: U.. this is the final order, thank you.

(emphasis added). Pursuant to this exchange, the IJ ordered Pallares removed, indicating in the order that he had "waived" his right to appeal.

Sometime after January 7, 2000, Pallares re-entered the United States. In July 2001, he was arrested by the Las Vegas Police Department, and the following month he was indicted under 8 U.S.C. § 1326 for unlawful re-entry into the United States and placed in federal custody.

Pallares filed a Motion to Dismiss Based on a Prior Unlawful Deportation in the District Court for the District of Nevada, arguing that a due process defect in the underlying deportation proceeding foreclosed proper judicial review of his case, and therefore, that the deportation order could not be used as an element of his illegal reentry offense. At a February 2002 hearing on the motion to dismiss, the district court expressed concern about whether the Annoy/Molest misdemeanor conviction could properly be characterized as an aggravated felony, "sexual abuse of a minor" under § 1101(a)(43)(A), identifying this question as the issue upon which Pallares' collateral attack would rise or fall.³ In response, Pallares' attorney suggested that the court's concern constituted a "compelling" reason for supplemental briefing on this question, explaining that Pallares' brief would address the "categorical approach and whether [the state conviction] is ... really an aggravated felony" and, further, that his argument "would be that the [state] statute is overbroad." The court assented, ordering supplemental briefing on the question.

In his supplemental brief, Pallares advanced an alternative argument to support his claim that the state Annoy/Molest conviction did not count as an aggravated felony for deportation purposes. Asserting that the district court need not reach the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), categorical analysis issue, Pallares instead argued that the plain language of the federal statutory provision — and particularly the word "felony" — was dispositive of the question presented.⁴ The government contested Pallares' argument on the plain language point and further asserted that under the Taylor categorical approach, the full range of conduct under the Annoy/Molest statute did, in fact, fall within the aggravated felony of "sexual abuse of a minor." After receiving the parties' briefs, the court issued an order denying Pallares' Motion to Dismiss.

In June 2002, Pallares entered a conditional plea of guilty to the § 1326 charge, preserving for appeal the district court's denial of his Motion to Dismiss. He was sentenced to 24 months' incarceration to be followed by two years of supervised release. Pallares now appeals the denial of his motion.

II. STANDARD OF REVIEW

We review a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment de novo when the motion is based upon an alleged due process defect in the underlying deportation proceeding. U.S. v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).

Here, however, the government...