U.S. v. Torres

• Decision Date: 07 September 2004
• Docket Number: No. 03-2574.,03-2574.
• Citation: 383 F.3d 92
• Parties: UNITED STATES of America v. Jose Augustin TORRES, a/k/a Juan Diaz, a/k/a Victor Torres, a/k/a Anthony Rodriguez, a/k/a Joselito Torres, a/k/a Martin Rodriguez Jose Augustin Torres, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

383 F.3d 92

UNITED STATES of America v. Jose Augustin TORRES, a/k/a Juan Diaz, a/k/a Victor Torres, a/k/a Anthony Rodriguez, a/k/a Joselito Torres, a/k/a Martin Rodriguez Jose Augustin Torres, Appellant.

No. 03-2574.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) January 23, 2004.

September 7, 2004.

Appeal from the United States District Court for the Eastern District of Pennsylvania, Eduardo C. Robreno, J Maureen Kearney Rowley, Chief Federal Defender, David L. McColgin, Supervising Appellate Attorney, Elizabeth T. Hey Assistant Federal Defender, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney, for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney, Senior Appellate Counsel, Anita Eve, Assistant United States Attorney, Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE, District Judge.^*

OPINION OF THE COURT

CHERTOFF, Circuit Judge.

Jose Augustin Torres appeals his conviction for unlawful re-entry into the United States after having been deported. On July 18, 2002, Torres was indicted for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. The indictment also charged that, prior to his removal, Torres had been convicted of an aggravated felony, making him subject to the enhanced penalties set forth in section 1326(b)(2). Torres filed a motion to dismiss the indictment, arguing that the underlying removal order was flawed and could not, therefore, support a conviction for unlawful re-entry. The District Court denied the motion to dismiss. Reserving his right to appeal, Torres pled guilty on February 24, 2003. On May 15, 2003, the District Court sentenced Torres to 27 months imprisonment, three years supervised release and a $100 special assessment. Torres appeals, maintaining that his removal order cannot serve as a predicate to his conviction for unlawful re-entry.

This case presents a question concerning the scope of an alien's right to collaterally attack the removal order that underlies a conviction for unlawful re-entry.

I.

Torres was admitted into the United States on July 14, 1989, as a lawful permanent resident from the Dominican Republic, his native country. On August 30, 1993, Torres was convicted of a felony drug trafficking offense in the Superior Court of New Jersey, Middlesex County. Torres voluntarily returned to the Dominican Republic but on May 23, 1998, he attempted to re-enter the United States.

Torres's 1993 conviction rendered him removable.¹ INS officials therefore detained Torres at the point of his 1998 entry and placed him in removal proceedings. In July of 1998, a hearing was held before an Immigration Judge (IJ) at which Torres was not represented by counsel. The IJ informed Torres of his rights during and after the hearing, including his right to appeal the outcome of his removal proceedings. The IJ then found Torres removable as charged, and ordered him removed to the Dominican Republic at Torres's request. Torres accepted the IJ's decision, and did not appeal the IJ's determination. At no time during the hearing, however, did the IJ inform Torres that he was eligible for any form of discretionary relief from removal. Torres was removed on September 2, 1998. Despite his removal and without authorization, Torres was found yet again in the United States on February 25, 2002. Torres's indictment under 8 U.S.C. § 1326 followed on July 18, 2002.

Before the District Court, Torres moved to dismiss the indictment contending that the order of removal upon which it was based was flawed. Torres argued that, during his 1998 removal proceedings, he was entitled to be considered for discretionary relief from removal under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (1995) (repealed by Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, Div. C, § 304(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-597).² Torres attributed the IJ's belief that Torres was not eligible for 212(c) relief as being based on an erroneous conclusion of law that was later corrected by the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Further, Torres asserted that the IJ's failure to inform him of his eligibility for discretionary relief rendered that removal proceeding unconstitutional-and therefore an inappropriate predicate for a conviction under 8 U.S.C. § 1326. See United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

After the District Court held an initial hearing on Torres's motion, Torres sought to admit expert testimony on his motion. The District Court, finding the testimony to be irrelevant, denied Torres's request to admit expert testimony. Simultaneously, the District Court denied Torres's motion to dismiss the indictment.³ Torres then pled guilty to the indictment, subject to his right to appeal. The District Court imposed sentence and, soon after, issued a written opinion explaining its decision to deny Torres's motion to dismiss. Torres timely appealed.

We have jurisdiction under 28 U.S.C. § 1291, and review this issue of law de novo. See Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir.1998) (exercising plenary review of legal issue of statutory construction); United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir.1995) (holding that questions of constitutional waiver are reviewed de novo).

II.

Torres's 1998 removal order was an element of his offense of illegal reentry. See 8 U.S.C. § 1326. According to Torres, at the time of his 1998 removal proceeding, he was wrongly denied consideration for 212(c) relief from removal. In order to address Torres's challenge, it is necessary for us to briefly rehearse the recent history of the immigration laws.

A.

The 1952 INA contained a provision excluding from the United States aliens convicted of the illicit traffic in narcotics. See 66 Stat. 182-187; see also St. Cyr, 533 U.S. at 294-95, 121 S.Ct. 2271. The same provision, which was section 212(c) of the INA, granted the Attorney General discretion to waive removal in the case of lawful permanent residents who had resided in the United States for at least seven years, so long as they had served less than five years in prison for an "aggravated" felony (separately defined at 8 U.S.C. § 1101(a)(43) (1995)):

Aliens lawfully admitted for permanent resident who temporarily proceeded abroad voluntarily and not under an order of [removal], and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

See 66 Stat. at 187 (codified at 8 U.S.C. § 1182(c) (1995)); see also St. Cyr, 533 U.S. at 294-95, 121 S.Ct. 2271. Thus, for aggravated felonies, the critical threshold for eligibility for 212(c) relief was a sentence below five years.

In 1996, Congress eliminated the Attorney General's discretion under INA section 212(c) to waive removal for aliens excludable for having committed even non-aggravated controlled substance offenses. See Anti-Terrorism and Effective Death Penalty Act (AEDPA) § 440(d), Pub.L. No. 104-132, 110 Stat. 1277; Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) § 304(b), Pub.L. No. 104-208, 110 Stat. 3009-597. The five-year threshold was also thereby eliminated. The question soon arose whether the 1996 elimination of the Attorney General's discretion operated retroactively. That is, in the wake of AEDPA and IIRIRA, did the Attorney General retain discretion to grant 212(c) relief from removal for aliens whose non-aggravated removable offense occurred prior to the change in the law, but whose removal had not yet been effected?

The first challenge to retroactive application of this broader preclusion of 212(c) relief came from aliens who had pled guilty to aggravated felonies prior to the enactment of AEDPA and IIRIRA but who served less than five years imprisonment. This group of aliens would have maintained the possibility of 212(c) relief if they faced removal before the effective dates of AEDPA and IIRIRA. Seeking to retain their opportunity for 212(c) relief after the new laws became effective, these aliens argued, in part, that they had entered pleas of guilty to the aggravated felonies in an effort to keep the sentence imposed below the five-year prison term threshold enumerated in 8 U.S.C. § 1182(c). Thus, they had pled guilty with the expectation under the former law that, despite their felony convictions, they would remain eligible for discretionary relief from removal. That being so, it would be unfair and unconstitutional to retroactively apply the elimination of 212(c) discretionary relief by AEDPA and IIRIRA against them.

The Attorney General disagreed. See In re Soriano, 21 I. & N Dec. 516, 1996 WL 426888, Int. Dec. 3289 (BIA 1996). Eventually, so did a number of the Courts of Appeals. See, e.g., DeSousa v. Reno, 190 F.3d 175, 186-87 (3d Cir.1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306-08 (5th Cir.1999). From 1996-2001, Soriano and the Courts of Appeals decisions that followed it took the position that the elimination of 212(c) relief enacted by AEDPA and IIRIRA acted retroactively; that is, 212(c) relief was not available to any criminal alien whose removal would be effected after the effective dates of AEDPA and IIRIRA.

In 2001, the Supreme Court resolved the question through an appeal from a denial of a writ of habeas corpus. See St. Cyr, 533 U.S. at 315, 121 S.Ct. 2271. The Court reversed Sor...