975 F.2d 592 (9th Cir. 1992), 90-50373, United States v. Proa-Tovar

Docket Nº:90-50373.
Citation:975 F.2d 592
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daniel PROA-TOVAR, Defendant-Appellant.
Case Date:September 14, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 592

975 F.2d 592 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Daniel PROA-TOVAR, Defendant-Appellant.

No. 90-50373.

United States Court of Appeals, Ninth Circuit

September 14, 1992

Argued and Submitted July 23, 1992.

Page 593

Debra Ann DiIorio, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Kimberly D. Allan, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.


FERNANDEZ, Circuit Judge:

Daniel Proa-Tovar was convicted of the felony of being an alien who reentered this country without permission after having been deported. 8 U.S.C. § 1326. On appeal, he claims that the Immigration Judge's (IJ) failure to properly advise him of his appeal rights at his deportation hearing precludes this conviction. We affirm.


A deportation hearing for Proa-Tovar and others was held in February of 1989. Before that hearing, Proa-Tovar had been in this country for some time and while here had committed a number of offenses. In 1986, he was convicted of auto burglary in California, and in December of 1988 he was convicted of possession of cocaine for sale, a felony under California law. He also had been convicted earlier that same year of an offense involving the sale of marijuana, after which he had been voluntarily returned to Mexico.

Before the February 1989 deportation hearing the IJ saw to it that all involved, including Proa-Tovar, had the services of an attorney, George Siddell. Proa-Tovar was interviewed by attorney Siddell who informed the IJ that each alien had agreed to his representation. Siddell also told the IJ that each of the aliens admitted the allegations and conceded deportability. One of the aliens requested voluntary departure. The others, as he said, did not ask for voluntary departure because they had several criminal convictions that made them ineligible for departure or, at the very least, made it highly unlikely that they would obtain a discretionary grant. Moreover, his interview with them indicated that they had no desire to ask for various other forms of relief.

The IJ then repeated to all of them what Siddell had said, gave each an opportunity to make a statement, and encouraged them to do so if they so desired. When Proa-Tovar was asked, he said that he had no statement to make.

The IJ then asked, "Mr. Siddell, do you want to make an appeal," to which the response was "No appeal...." Thereupon, the IJ informed Proa-Tovar and the others that there would be no appeal.

The result of that proceeding was that Proa-Tovar was quickly deported to Mexico--the deportation was that very night. He did not stay there long. In November of 1989 he was found in San Diego, California during a raid on a drug house. Because of his surreptitious return to this country, he was indicted for a violation of 8 U.S.C. § 1326.

Proa-Tovar moved to dismiss the indictment and defended during trial on grounds that the deportation itself was invalid because he was not properly advised of and had not knowingly and intelligently waived his right to a direct appeal of the proceedings before the IJ. In so doing, he claimed that he need not show that...

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