U.S. v. Cerda-Pena

• Decision Date: 16 September 1986
• Docket Number: CERDA-PEN,D,No. 85-3118,85-3118
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rolandoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1374

799 F.2d 1374

UNITED STATES of America, Plaintiff-Appellee, v. Rolando CERDA-PENA, Defendant-Appellant.

No. 85-3118.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1986.

Decided Sept. 16, 1986.

Lance Caldwell, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Linda Friedman Ramirez, Salem, Or., for defendant-appellant.

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

Before SKOPIL and NELSON, Circuit Judges, and LYNCH, ^* District Judge.

LYNCH, District Judge:

I. Introduction

Appellant, Rolando Cerda-Pena, has appealed his conviction for re-entering the United States in violation of 8 U.S.C. section 1326. Appellant contends that his pretrial motion to dismiss the indictment against him was improperly denied.

An alien may not be convicted under section 1326 for illegally re-entering the United States unless he or she has previously been lawfully deported. United States v. Bejar-Matrecios, 618 F.2d 81, 82 (9th Cir.1980). Appellant was deported to Mexico on December 5, 1984. That deportation was the basis for the indictment charging appellant with violating section 1326. In the motion to dismiss the indictment, appellant argued that the following irregularities rendered his December 5, 1984 deportation unlawful: ¹ (1) the Immigration and Naturalization Service (INS) failed to inform appellant of his right to contact the Mexican Consul, (2) the immigration judge failed adequately to apprise appellant of his right to be represented by counsel, and (3) the INS did not provide appellant with a competent interpreter at his deportation hearing.

The district court found that appellant's deportation was lawful and therefore denied the motion to dismiss. The court ruled that neither a failure by the INS to inform appellant of his right to contact his country's Consul nor a failure by the immigration judge adequately to apprise appellant of his right to representation could render appellant's deportation unlawful unless the failure was prejudicial. It then held that, even assuming both of the alleged failures occurred, the appellant had not been prejudiced. The court based its holding on a finding that appellant had not submitted evidence indicating that either of the alleged omissions actually had the potential for affecting the outcome of the deportation proceedings. The district court also concluded that the errors committed by appellant's interpreter were harmless and had not resulted in a denial of appellant's due process rights.

Appellant contends that the district court erred in denying appellant's motion to dismiss the indictment. The appellant argues that the district court applied an improperly strict standard on the issue of prejudice with respect to the alleged omissions by the INS and the immigration judge. Appellant asserts that he showed prejudice by producing evidence indicating that he would have availed himself of the procedural protections denied him and that he was not required to show that such an availment actually had the potential for changing the outcome of the proceedings. The appellant also challenges the district court's ruling that the errors committed by the interpreter at his deportation hearing did not constitute a denial of due process. Thus, the issues on appeal are (1) whether the district court correctly applied the proper legal standard in finding that neither of the alleged omissions by the INS and the immigration judge could have been prejudicial and (2) whether the district court properly determined that the errors by appellant's interpreter at the deportation hearing did not constitute a denial of due process.

II. District Court's Finding of No Prejudice

INS regulations require that the INS notify a detained alien of his or her right to speak to the consul of the alien's country, 8 C.F.R. Sec. 242.2(e), and that the immigration judge notify the alien at the deportation hearing of the alien's right of representation, 8 C.F.R. Sec. 242.16(a). ² Appellant contends that these regulations were violated during his deportation proceedings.

This Circuit has held that a violation of an INS regulation does not invalidate a deportation proceeding unless the regulation serves a purpose of benefit to the alien. United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir.1980). In addition, even if the regulation does serve a purpose of benefit to the alien, a violation of that regulation will not render a deportation unlawful unless the violation prejudiced the interests of the alien protected by the regulation. ³ Id. Thus, the violation of an INS regulation will render a deportation unlawful if the regulation in question serves a purpose of benefit to the alien and its violation prejudiced the interests of the alien that it was intended to protect. Id.

Both of the regulations in question clearly serve purposes of benefit to aliens. See Id.; Rios-Berrios v. INS, 776 F.2d 859, 862-64 (9th Cir.1985). Moreover, the trial court assumed for purposes of the motion to dismiss that both regulations were violated. Consequently, in order for the trial court to have correctly found that appellant's deportation was lawful, it must have properly determined that the assumed violations were not prejudicial.

On appeal, appellant does not seriously contend that he produced evidence at the motion to dismiss showing that the outcome of his deportation proceedings might have been different had the assumed violations not occurred. ⁴ Rather, the appellant argues that he was only required to show that absent the violations he would have received assistance in resisting deportation and, therefore, that the trial court erred in holding that there was no prejudice. In support of this proposition, the appellant cites the following language from United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir.1980):

In sum, the appellant in this case carried his initial burden of going forward with evidence that he did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance to him in resisting deportation. There was no evidence to rebut that showing and the indictment should have been dismissed.

Id. at 533.

Notwithstanding the above quotation from Rangel-Gonzales, the language of the opinion, considered in its entirety, does not support appellant's argument. ⁵ Rangel-Gonzales involved Ninth Circuit review of one of two companion cases that had been previously remanded to the district court for further proceedings on the issue of whether a failure to advise two aliens of their right to contact their country's consul had been prejudicial. In determining whether the district court had correctly found no prejudice, the court quoted favorably the earlier instructions given to the district court on how the issue of prejudice should be resolved. ⁶ Those instructions stated the following:

On remand the aliens should be allowed the opportunity to demonstrate prejudice resulting from INS regulation violations. The district court will determine whether violation of 8 C.F.R. Sec. 242.2(e) harmed the alien's interests in such a way as to affect potentially the outcome of their deportation proceedings. Any such harm should be identified specifically.

Id. at 530 (emphasis added) (quoting United States v. Calderon-Medina, 591 F.2d 529, 532 (9th Cir.1979)).

The above-quoted language clearly contemplates that in order to prove prejudice an alien must specifically show that his or her interests protected by an INS regulation that has been violated during the alien's deportation proceedings have been prejudiced in a manner so as potentially to affect the outcome of the proceedings; a mere showing that the alien would have availed himself of the procedural protections denied him is not enough. ⁷ After having quoted its earlier instructions to the district court, the court in Rangel-Gonzales further stated as follows:

Thus, ... the initial burden of production of evidence showing prejudice is on the defendant. The prejudice must relate to the interest protected by the regulation. Since the interest of the alien protected by this regulation related to obtaining assistance in preparing a defense to the deportation, we must consider whether appellant demonstrated that such interests were materially affected.

Id. at 530 (emphasis added).

The Court holds that the standard enunciated in Rangel-Gonzales requires that an alien produce some concrete evidence indicating that the violation of a procedural protection actually had the potential for affecting the outcome of his or her deportation proceedings. This finding is consistent with the Rangel-Gonzales court's approving quotation of the instructions given earlier to the district court in that case and with the court's use of the term "material," which suggests that the alien's interests must be affected in a manner which actually can make a difference. Thus, an alien who wishes to challenge the legality of a previous deportation bears the initial burden of producing evidence indicating that a violation of an INS regulation occurring during the alien's deportation prejudiced his or her interests protected by the regulation in such a manner so as actually to have had the potential for affecting the outcome of the proceedings. ⁸ Once such a prima facie showing of prejudice is made, the burden then shifts to the government to show that the violation could not have changed the outcome of the deportation proceedings.

In light of this Court's clarification of the Rangel-Gonzales standard, the district court's finding of no prejudice is affirmed. The district court applied the proper legal standard when it required appellant to make some showing that the alleged violations actually had the potential for affecting the outcome of his deportation proceedings. Moreover, ...