United States v. Gonzalez-Parra, 29018.

• Decision Date: 05 March 1971
• Docket Number: No. 29018.,29018.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Julio GONZALEZ-PARRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

438 F.2d 694 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jose Julio GONZALEZ-PARRA, Defendant-Appellant.

No. 29018.

United States Court of Appeals, Fifth Circuit.

February 4, 1971.

As Modified on Denial of Rehearing March 5, 1971.

Abraham H. Shukat, Miami Beach, Fla. (Court-appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Jose E. Martinez, Richard A. Hauser, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Before THORNBERRY, AINSWORTH and GOLDBERG, Circuit Judges.

AINSWORTH, Circuit Judge:

Jose Julio Gonzalez-Parra, also known as Lenin Alarcon-Corrales, was indicted and convicted under 8 U.S.C. § 1326¹ as an alien who, having been arrested and deported, reentered the United States without the express consent of the Attorney General. From this conviction he appeals, alleging that in the proceedings below he was denied due process and that his Sixth Amendment right to a jury trial was infringed. We affirm.

The appellant, a native of Costa Rica, entered the United States at Miami on January 18, 1968, as Jose Julio Gonzalez-Parra. His visa authorized him to remain as a nonimmigrant visitor until October 7, 1968. On November 1, 1968, officials of the Immigration and Naturalization Service (I&NS) took him into custody in New York. A hearing was held before a Special Inquiry Officer of the I&NS to determine whether appellant should be deported pursuant to 8 U.S.C. § 1251(a) (2).² Appellant was represented by retained counsel at the hearing, had an interpreter present, and testified on his own behalf. He pled no defenses and offered no evidence that he had a right to remain in the United States. His counsel asked permission for him to depart voluntarily, but shortly thereafter withdrew the request. The Special Inquiry Officer thereupon ordered appellant deported to Costa Rica. Appellant expressly waived his right of appeal, and left the United States for Costa Rica by plane on November 7, 1968.

On or about December 13, 1968, the appellant reentered this country at Miami under the name Lenin Alarcon-Corrales, which he now contends is his real name. He was once again taken into custody by the I&NS, and on September 17, 1969, was indicted for violation of 8 U.S.C. § 1326. He pled not guilty and, through counsel, moved to dismiss the indictment on the ground that Section 1326 is unconstitutional on its face, in that it imposes criminal punishment on an alien for defiance of a deportation order without affording him a trial de novo of the facts on which the validity of the order depends. The District Judge denied the motion to dismiss. He inspected the record of the original deportation proceedings, and found that the Special Inquiry Officer had "substantial grounds" for ordering the appellant deported and that no basis was disclosed for invalidating the order. The appellant thereupon withdrew his original plea and entered a plea of guilty. The District Judge adjudged him guilty as charged and, in response to appellant's request that he be sentenced without further delay, sentenced him to the custody of the Attorney General for 60 days (with credit for time in custody prior to trial) pending deportation anew.

Appellant contends that he should never have been deported in the first place. He concedes that he entered the United States on a nonimmigrant visa and that he stayed beyond the period permitted. He alleges that he obtained the visa by giving a false name and by misrepresenting himself as a visitor when in fact he intended to make his living here, and that at all times pertinent herein, his mother has lived in Miami Beach, Florida, as a permanent resident alien. In consequence, he contends, the I&NS erred when it deported him pursuant to 8 U.S.C. § 1251(a) (2), because in so doing it ignored the provisions of Section 1251(f), which reads in pertinent part:

The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to alien otherwise admissible at the time of entry who is the * * * child of * * * an alien lawfully admitted for permanent residence.

Appellant did not make these contentions at the I&NS proceedings, and though the District Judge entertained argument on both sides, he confined his ruling to the formal record of those proceedings. The question on appeal is whether a jury trial de novo on these contentions is a constitutional prerequisite to the conviction of appellant for unlawful reentry.

We face at the outset the question whether, by his guilty plea, appellant waived the right of appeal on the issue of the constitutionality of 8 U.S.C. § 1326. We hold that he did not. It is well established in this Circuit that a guilty plea, if voluntarily and understandingly made, admits all facts charged and waives all non-jurisdictional defects in the prior proceedings against him. See Busby v. Holman, 5 Cir., 1966, 356 F.2d 75, 77; Moore v. United States, 5 Cir., 1970, 425 F.2d 1290, 1291, and cases cited therein. The Supreme Court has declared, however, that where a defendant moves to dismiss an indictment on the ground that the statute he is charged with having violated is unconstitutional, and the Trial Judge denies the motion to dismiss, the defendant may plead guilty and yet preserve the constitutional issue for appeal. Haynes v. United States, 390 U.S. 85, 86-87 n. 2, 88 S.Ct. 722, 724-725 n. 2, 19 L.Ed.2d 923 (1968). The Haynes rule permits a defendant to preserve for appeal a narrow class of constitutional questions that the Trial Court has resolved against him "without being required to go through a futile trial on the merits." 1 C. Wright, Federal Practice and Procedure § 175 at 381 (1969); cf. United States ex rel. Rogers v. Warden of Attica State Prison, 2 Cir., 1967, 381 F.2d 209, 214. In the instant case the appellant made it clear that, while he conceded that he had been deported and had reentered without express authorization, he did not concede the validity of the deportation order; and that he pleaded guilty and waived jury trial on the general issue only because the Trial Judge's ruling that he was not entitled to jury trial de novo on the merits of the deportation order left him with "no fact left to try."³

We think it clear that Congress intended to bar collateral attacks on deportation orders in prosecutions under 8 U.S.C. § 1326. Section 1105a of 8 U.S. C., enacted in 1961 as Section 106a of the Immigration and Nationality Act, sets forth a comprehensive scheme for judicial review of deportation orders. See generally Note, Deportation and Exclusion: A Continuing Dialogue Between Congress and the Courts, 71 Yale L.Rev. 760 (1962). Section 1105a(c) provides that "An order of deportation * * * shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order." Any alien ordered deported pursuant to the decision of an I&NS Special Inquiry Officer has an administrative remedy available as of right in the form of an appeal to the Board of Immigration Appeals. 8 C.F. R. § 242.21 (1970). A deportee who takes this administrative appeal and loses may obtain judicial review in several ways. First, if he is still in custody pursuant to the order, he may obtain judicial review thereof by habeas corpus proceedings. 8 U.S.C. § 1105a(a) (9). Second, whether he is in custody or not, Section 1105a(a) accords him the right to civil judicial review in the federal court of appeals for the circuit in which he resides or in which the pre-order hearings were held, provided he files a petition for review within six months of the date of the order. Section 1105a(a) (4) provides in part that

* * * the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General\'s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive; * * *.

Third, Section 1105a(a) (6) provides that defendants in certain criminal prosecutions based on deportation orders may obtain pretrial judicial review of those orders. This section, however, limits the availability of such review to prosecutions under 8 U.S.C. §§ 1252(d) (wilful failure of deportee to comply with certain additional orders of the Attorney General prior to departure) and 1252(e) (wilful failure to arrange for departure and to depart). It does not provide for such review in prosecutions under Section 1326. Finally, Section 1105a(a) expressly provides that the foregoing procedures "shall be the sole and exclusive procedures for * * * the judicial review of all final orders of deportation * * *."

The appellant here, advised by counsel at his deportation proceeding, expressly waived an administrative remedy available to him as of right, and departed from the United States having failed either to institute habeas corpus proceedings while in custody or to file a petition for judicial review in any circuit court. He appeals from conviction under 8 U.S.C. § 1326 rather than under 8 U.S.C. §§ 1252(d) or (e). As we interpret Section 1105a, this appellant may not obtain judicial review of the merits of his original deportation order in this case.

Thus we confront a problem in constitutional interpretation. In Wong Wing v. United States, 163 U.S. 228, 16 U.S. 977, 41 L.Ed. 140 (1896), the Supreme Court held that the Sixth Amendment bars the state from punishing a man for violation of a deportation statute unless "the fact of guilt is first * * * established by a judicial trial." 163 U. S. at 237, 16 S.Ct. at 981. In United States v. Spector, 343 U.S. 169, 72...