U.S. v. Aguirre-Tello

• Decision Date: 22 January 2002
• Docket Number: No. Crim.01-284 MV.,Crim.01-284 MV.
• Citation: 181 F.Supp.2d 1298
• Parties: UNITED STATES of America, Plaintiff, v. Ricardo AGUIRRE-TELLO, Defendant.
• Court: U.S. District Court — District of New Mexico

181 F.Supp.2d 1298

UNITED STATES of America, Plaintiff, v. Ricardo AGUIRRE-TELLO, Defendant.

No. Crim.01-284 MV.

United States District Court, D. New Mexico.

January 22, 2002.

COPYRIGHT MATERIAL OMITTED

Peter S. Levitt, Assistant U.S. Attorney, Las Cruces, NM, for plaintiff.

Felipe D.J. Millan, El Paso, TX, Herman Ortiz, Garfield, NM, for defendant.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendant's Motion to Dismiss the Indictment, filed July 31, 2001 [Doc. No. 40]. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the motion is well taken and will be GRANTED.

BACKGROUND

Defendant Ricardo Aguirre-Tello has been charged with unlawful reentry into the United States after having been deported on August 19, 1994, due to a prior conviction of an aggravated felony. According to the record before the Court, at the time of the deportation, Defendant was a legal permanent resident who had resided in the United States for approximately seven continuous years. Defendant moves the Court to dismiss the indictment for the reentry charge because the underlying deportation resulted from an allegedly unconstitutional deportation hearing. Specifically, Defendant argues that the immigration judge ("IJ") at the deportation hearing did not properly advise him of his eligibility for discretionary relief and bond, and that he did not receive a list of free legal services, thus causing his deportation hearing to be fundamentally unfair and prejudicial. After reviewing written submissions by both parties, the Court heard oral arguments on the motion on November 20, 2001.

STANDARDS

Federal immigration law forbids, in pertinent part, "any alien who has been ... deported, or removed or has departed the United States while an order of ... deportation, or removal is outstanding" from entering, attempting to enter, or being found in the United States without prior approval from the Attorney General. 8 U.S.C. § 1326(a) (1999). However, in United States v. Mendoza-Lopez ("Mendoza-Lopez I"), the U.S. Supreme Court held that the U.S. Constitution imposed due process limitations on deportation proceedings that subsequently support a charge of unlawful reentry. 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Because a criminal sanction is at stake, the Court emphasized the need for "some meaningful review of the administrative proceeding," which "requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense." Id. at 838-39, 107 S.Ct. 2148. The Mendoza-Lopez I Court did not specify what would constitute a due process violation in a deportation proceeding because the government conceded that such a violation had occurred. Id. at 839, 107 S.Ct. 2148.

The Tenth Circuit has interpreted Mendoza-Lopez I to allow a defendant to collaterally challenge a deportation hearing if "the defendant can show that the deportation hearing was fundamentally unfair and deprived the alien of the right to judicial review.... In order to establish fundamental unfairness, the alien must show that he was prejudiced." United States v. Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994). Moreover, the defendant must "show that if he had been appropriately informed of his right to appeal, the outcome of his case would have been different." Id. at 998. "[T]he burden of proof in a collateral attack on a deportation order is on a defendant based on the presumption of regularity that attaches to a final deportation order." United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th Cir.2000).

DISCUSSION

Defendant argues that his deportation proceeding was constitutionally infirm because the IJ did not adequately explain to him his eligibility for a waiver under Section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c) (repealed by Pub.L. 104-208, Sept. 30, 1996).¹ Defendant also contends that the IJ's failure to advise him of his right to bond, which had already been set at $20,000, and to give him a list of free legal services provides additional bases to find a due process violation. The Court is persuaded by Defendant's arguments and finds that he has met his burden in refuting the "presumption of regularity" attached to his deportation order. See Arevalo-Tavares, 210 F.3d at 1200. The deportation hearing was fundamentally unfair and deprived Defendant of his right to judicial review; thus, the indictment for unlawful reentry, which is based on Defendant's prior deportation, must be dismissed.²

I. Fundamental Unfairness

A. Discretionary Relief

Section 212(c) states, in pertinent part, that "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. ..." 8 U.S.C. § 1182(c). Although the language of the statute refers to persons who temporarily leave the United States, federal courts and the Immigration and Naturalization Service ("INS") have ruled that the waiver is equally applicable to permanent residents who have never left. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276, 150 L.Ed.2d 347 (2001); Matter of Silva, 16 I. & N. Dec. 26, 1976 WL 32326 (Sept. 10, 1976).

The record indicates that Defendant attained permanent legal resident status on August 20, 1987; thus, Defendant would have been eligible for a 212(c) waiver the day following his deportation hearing, which took place on August 19, 1994. The government has not disputed Defendant's eligibility for the waiver; in fact, the IJ himself acknowledged Defendant's eligibility during the deportation proceeding upon review of Defendant's file.³ Therefore, the issue before the Court is whether Defendant was properly advised of his eligibility for a waiver in order to satisfy due process.

Ninth Circuit law, which would have governed Defendant's deportation proceeding,⁴ explicitly finds an IJ's failure to properly advise a deportee of discretionary relief to be a violation of due process, and the Court finds the Ninth Circuit's analysis to be persuasive. In United States v. Muro-Inclan, the Ninth Circuit held that "when the record before the Immigration Judge `raises a reasonable possibility' of relief from deportation ..., it is a denial of due process to fail to inform an alien of that possibility at the deportation hearing." 249 F.3d 1180, 1184 (9th Cir.2001); see also United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). This due process violation is directly linked to the duties imposed on an IJ by regulations promulgated by INS, which existed at the time of Defendant's deportation hearing. See Muro-Inclan, 249 F.3d at 1183. Pursuant to INS regulations, an IJ is required to "inform the respondent [in a deportation hearing] of his apparent eligibility to apply for any of the benefits [of relief from deportation] enumerated in this paragraph and ... afford him an opportunity to make application therefor during the hearing. ..." Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir.1989) (quoting 8 C.F.R. § 242.17(a) (1988)). Ninth Circuit law considers this duty to be mandatory. Id.; accord Muro-Inclan, 249 F.3d at 1183; Arrieta, 224 F.3d at 1079.

The Tenth Circuit has not yet specifically ruled on the constitutional implications of an IJ's failure to advise a deportee of available discretionary relief, but the case law of this circuit is entirely consistent with the Ninth Circuit's analysis. The Tenth Circuit has addressed this issue only once in United States v. Mendoza-Lopez ("Mendoza-Lopez II")⁵, where they held that the "ILJ's duty to inform an alien of his apparent eligibility for discretionary relief from deportation is triggered only after the alien has provided information sufficient to support such a duty." 7 F.3d 1483, 1485 (10th Cir.1993), impliedly overruled on other grounds by United States v. Fagan, 162 F.3d 1280 (10th Cir.1998). The Mendoza-Lopez II court did not find the IJ's failure to inform the deportee of his eligibility for discretionary relief to be fundamentally unfair because he had deliberately concealed relevant facts from the judge; therefore, "[a]ny prejudice [the defendant] may have suffered was the result of his willful misstatements to the ILJ." Id. at 1486.

This case is distinguishable because the IJ clearly recognized Defendant's eligibility for discretionary relief and, in fact, stated so in the deportation hearing. Consequently, he had a duty to inform Defendant that a 212(c) waiver of deportation was available pursuant to the Tenth Circuit's reasoning in Mendoza-Lopez II. Yet, despite this clear obligation, the IJ merely informed Defendant that he would be eligible for a "pardon" the following day without further explaining what constituted a "pardon," the requirements for the relief, and the implications of receiving or not receiving such relief. The Court finds this advisement of discretionary relief to be wholly insufficient under INS regulatory guidelines, resulting in fundamental unfairness to Defendant.

Federal immigration law is intricate and confusing to trained attorneys, let alone a lay person with limited education. Therefore, merely informing a deportee that he or she is eligible for discretionary relief under Section 212(c), which this IJ did not even do, is often of little assistance. However, if an IJ engages the use of vernacular words, it is particularly troubling when the chosen words are even more misleading and confusing than the technical terms themselves. A "pardon" is commonly understood to be a rare act of forgiveness by an executive authority. See, e.g., Black's Law Dictionary 1113 (6th ed.1990) (defining pardon as "[a]n executive action that mitigates...