724 F.3d 1125 (9th Cir. 2013), 12-30150, United States v. Gonzalez-Villalobos

Docket Nº:12-30150
Citation:724 F.3d 1125
Opinion Judge:PAEZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ENCARNACION GONZALEZ-VILLALOBOS, Defendant-Appellant
Attorney:Nicholas Marchi (argued), Carney & Marchi, P.S., Seattle, Washington, for Defendant-Appellant. Alexander C. Ekstrom, Assistant United States Attorney (argued), and Michael C. Ormsby, United States Attorney, Yakima, Washington, for Plaintiff-Appellee.
Judge Panel:Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
Case Date:July 26, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1125

724 F.3d 1125 (9th Cir. 2013)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ENCARNACION GONZALEZ-VILLALOBOS, Defendant-Appellant

No. 12-30150

United States Court of Appeals, Ninth Circuit

July 26, 2013

Argued and Submitted, February 8, 2013, Seattle, Washington

Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:11-cr-02095-RMP-1. Rosanna Malouf Peterson, Chief District Judge, Presiding.

Nicholas Marchi (argued), Carney & Marchi, P.S., Seattle, Washington, for Defendant-Appellant.

Alexander C. Ekstrom, Assistant United States Attorney (argued), and Michael C. Ormsby, United States Attorney, Yakima, Washington, for Plaintiff-Appellee.

Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

SUMMARY[*]

Criminal Law

The panel affirmed the district court's denial of a motion to dismiss an indictment charging illegal reentry after a prior deportation without addressing the merits of the defendant's argument that the alleged prior deportation proceeding was fundamentally unfair.

The panel held that the defendant, who exhausted his administrative remedies by appealing the Immigration Judge's adverse ruling to the Board of Immigration Appeals, failed to show that an error or obstacle related to his deportation proceedings improperly deprived him of the opportunity for judicial review, as required for a collateral attack on the deportation order under 8 U.S.C. § 1326(d). The panel explained that the IJ's denial of an evidentiary hearing is not an error that, by its nature, affected the defendant's awareness of or ability to seek judicial review.

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OPINION

PAEZ, Circuit Judge.

Defendant Encarnacion Gonzalez-Villalobos appeals his conviction for illegal reentry after a prior deportation in violation of 8 U.S.C. § 1326. In the district court he moved to dismiss the indictment on the ground that the prior deportation order was fundamentally unfair. See 8 U.S.C. § 1326(d). After the district court denied his motion, Gonzalez-Villalobos entered a conditional guilty plea, preserving his right to appeal the denial of the motion. On appeal, he renews his challenge to the prior deportation order.

When a defendant collaterally attacks the validity of a prior deportation order in a § 1326 prosecution, he must show that he exhausted his administrative remedies, that the deportation proceedings improperly deprived him of the opportunity for judicial review, and that entry of the prior deportation order was fundamentally unfair. See 8 U.S.C. § 1326(d)(1)-(3). As we explain below, we have generally found that where an alien was deprived of the opportunity to exhaust his administrative remedies, satisfying § 1326(d)(1), he also has shown that he was deprived of the opportunity to seek judicial review, satisfying § 1326(d)(2). Here, Gonzalez-Villalobos has shown that he exhausted his administrative remedies by appealing the Immigration Judge (" IJ" )'s adverse ruling to the Board of Immigration Appeals (" BIA" ). However, he has failed to show that an error or obstacle related to his deportation proceedings improperly deprived him of the opportunity for judicial review, as required by 8 U.S.C. § 1326(d)(2). Because subsections (d)(1), (d)(2), and (d)(3) must all be satisfied either directly or constructively, we affirm the denial of Gonzalez4 Villalobos's motion to dismiss and his conviction without addressing the merits of his argument that the alleged prior deportation proceeding was fundamentally unfair.

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I.

FACTUAL AND PROCEDURAL HISTORY

A.

The events surrounding the underlying deportation in this case occurred more than twenty years ago.1 In March 1986, Gonzalez-Villalobos was arrested in Yakima, Washington, for possession of a controlled substance (cocaine) with intent to deliver. He was eventually convicted of this offense in the Superior Court of Washington, County of Yakima, in July 1986. In connection with Gonzalez-Villalobos's arrest, agents from the Immigration and Naturalization Service (" INS" ) assisted the local police with the service and execution of a search warrant at his house.2 A few days after the arrest, an INS agent prepared form I-213, " Record of Deportable Alien," in which he recorded Gonzalez-Villalobos's immigration status and the events surrounding his arrest. The I-213 contained an A-file number ending in " 910." The next day, INS served Gonzalez-Villalobos with an order to show cause, alleging that he was deportable as an alien in the United States who entered without inspection. When INS could not locate Gonzalez-Villalobos, it administratively closed the deportation proceeding in January 1987. As it turned out, Gonzalez-Villalobos was incarcerated in federal prison, where he was serving a sentence for being an alien in possession of a firearm.3 Gonzalez-Villalobos completed his federal sentence in December 1987 and upon his release he was taken into custody by INS. A few weeks later, INS released him from custody because it determined that he was a class member in a pending class action. The agency then cancelled the pending order to show cause.

After his release from INS custody, Gonzalez-Villalobos applied for legal status through the " special agricultural worker" (" SAW" ) program in May 1988. See 8 U.S.C. § 1160; 8 C.F.R. § 210.3.4 INS assigned Gonzalez-Villalobos's SAW application a different A-file number, ending in " 678." It denied his SAW application in November 1989 on the ground that his state drug conviction rendered him ineligible for the program. Gonzalez-Villalobos appealed, and the INS Legalization Appeals Unit affirmed the denial of his application in February 1991. Apparently unaware of the Appeals Unit's ruling, Gonzalez-Villalobos visited an INS office in November 1991 to inquire about the status of his SAW application. While there, he was detained by INS agents,

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who immediately completed a second I-213, reciting Gonzalez-Villalobos's conviction record and detention history. This I-213 had the same A-file number as the one prepared in 1986, ending in " 910." The next day, INS issued an order to show cause, alleging that Gonzalez-Villalobos was deportable as an alien who had been convicted of a controlled substance offense.

At a deportation hearing in April 1992, Gonzalez-Villalobos argued that INS agents wrongfully discovered his conviction record by looking through the SAW file. He argued that " when he went to check on his legalization application and the current status of it, they reviewed the computer and the file and asked him to wait there. They made a phone call and subsequently, from across the hall, where the deportation section and the legalization office are in the same building across the hall, came the agent from INS."

Gonzalez-Villalobos requested a suppression hearing so that he could question the INS agents on how they obtained his criminal history record. In response, the IJ asked the government's attorney to " assure [him] as an officer of the Court that [the evidence] did not result from a sting operation being operated by the investigative arm of the Service in conjunction with the legalization office." The government's attorney informed the court that he was not offering any evidence that came from the SAW legalization file. The IJ then denied the request for a suppression hearing, stating that " the evidence submitted by the Service was totally independent of the legalization process." She further concluded that Gonzalez-Villalobos was not eligible for any relief and accordingly entered a deportation order. The IJ also informed Gonzalez-Villalobos and his attorney of the right to appeal her ruling to the BIA. Gonzalez-Villalobos timely appealed, primarily challenging the IJ's denial of his request for a...

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