U.S. v. Aguirre-Tello

• Decision Date: 06 January 2004
• Docket Number: No. 02-2049.,02-2049.
• Citation: 353 F.3d 1199
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ricardo Aguirre-Tello, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

353 F.3d 1199

UNITED STATES of America, Plaintiff-Appellant, v. Ricardo Aguirre-Tello, Defendant-Appellee.

No. 02-2049.

United States Court of Appeals, Tenth Circuit.

January 6, 2004.

Laura Fashing, Assistant United States Attorney, Albuquerque, NM (David C. Iglesias, United States Attorney, Albuquerque, NM, and Peter S. Levitt, Assistant United States Attorney, Las Cruces, NM, on the briefs), for Plaintiff-Appellant.

Felipe D.J. Millan, El Paso, TX, for the Defendant-Appellee.

Before TACHA, Chief Judge, HOLLOWAY, SEYMOUR, ANDERSON, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The United States appeals from an order of the district court dismissing the indictment against defendant/appellee Ricardo Aguirre-Tello, charging him with illegal re-entry into the United States after having been deported, in violation of 8 U.S.C. § 1326(a), (b)(2). The district court dismissed the charge after concluding that Aguirre-Tello's underlying deportation proceeding had been fundamentally unfair. A divided panel of this court affirmed.

We granted the government's petition for rehearing en banc, with particular attention to the following two questions: (1) whether Aguirre-Tello had a constitutional right to be informed of discretionary relief in the form of a waiver from deportation that might be available to him; and (2) whether he had established that deficiencies in his deportation proceeding caused him prejudice, defined by the panel majority as a reasonable probability that he would have received a waiver from deportation had he applied for one. Answering both questions in the negative, as well as addressing the remaining arguments made to the original panel, we now reverse the judgment of the district court and remand for further proceedings.

BACKGROUND

Aguirre-Tello was born in Mexico in 1969. He testified before the district court that he first came to the United States with his parents in 1973, and his attorney told the district court that he had been in this country ever since. He was not in this country legally, however, until August 1987, when he was granted an immigration visa.

In November 1989, Aguirre-Tello was convicted in California state court of attempted murder, and was sentenced to a term of nine years, of which he served just under five years. Upon his release from prison in 1994, the Immigration and Naturalization Service commenced deportation proceedings against him.¹ A deportation hearing was held before an Immigration Judge ("IJ") on August 19, 1994, in El Centro, California. There were twenty potential deportees present at the hearing, and Aguirre-Tello was one of three who indicated that they spoke English and wanted their hearings conducted in English.

The IJ began by determining that all of the potential deportees understood that the purpose of the hearing was to determine if the charges in their cases were true and that each one would be asked to admit or deny the charges against him or her. Thus, the IJ asked, "Even if the charges are proven [that] doesn't mean you must be deported; you might be eligible for some pardon or for asylum. If you are eligible for a pardon, I will tell you. Do you understand the purpose for this hearing?" The group of potential deportees, including Aguirre-Tello, responded, "yes." Appellant's App. at 7.² The IJ then informed the potential deportees that they had a right to be represented by counsel:

At this hearing, you can have an attorney, but the government won't pay for your attorney. You each have a list of free legal services. If you haven't had time to consult with an attorney, I'll postpone your case. But you don't have to have an attorney; you have the right to represent yourself. Do you understand your right to be represented?

Id. at 7-8. Aguirre-Tello and the others responded, "yes." Id.

Later, the IJ further advised the potential deportees of their rights:

THE COURT: Do any of you want more time to get a lawyer? And if you do, raise your hand. There are no hands. So we'll continue with each of you representing yourself. If you represent yourself, you should know that you can listen to and ask questions of any witness the government calls and look at anything the government gives me to consider against you. You can object to the government's evidence by explaining to me why you disagree with it. You can call witnesses to testify for you and show me anything you believe is important to your case. You can testify and tell me your story in your own words. Do you understand these rights?

DEFENDANTS: Yes.

THE INTERPRETER: Yes, by all responses.

THE COURT: If you disagree with my decision, you can appeal. Your right to appeal is explained on the same paper that lists the legal services. By an appeal, you ask a higher court to review what I've done and determine if I've made a mistake. Do you understand your right to appeal?

DEFENDANTS: Yes.

THE INTERPRETER: By all respondents, yes.

Id. at 13-14.

Later in the hearing, the IJ addressed Aguirre-Tello individually. After determining that Aguirre-Tello did not have an attorney, the IJ asked if he wanted more time to get an attorney. Aguirre-Tello said no. Aguirre-Tello affirmed that he understood his rights and that he understood the charges. He also admitted that he was a citizen of Mexico, that he had entered the United States as an immigrant in August 1987, and that in November 1989 he had been convicted of attempted murder in Los Angeles County, California. Aguirre-Tello also stated that he had been sentenced to nine years in prison and had served 63 months.³

As the colloquy between the IJ and Aguirre-Tello continued, Aguirre-Tello testified that he was born in Mexico, that neither of his parents was an American citizen at the time, that he had received a "green card" but had never applied for citizenship, and that he had lived in the United States for the last seven years. At that point, the IJ evidently realized that it had been seven years less one day since Aguirre-Tello had been permitted to enter the United States legally, which meant that, under the law then in effect, he would be eligible the next day to apply for a discretionary "waiver" from deportation. Accordingly, the following exchange occurred between the IJ and Aguirre-Tello:

THE COURT: Okay. You are not today eligible for a pardon, but you would be tomorrow. Do you want your case postponed to see if you might be granted a pardon and allowed to remain in this country?

DEFENDANT AGUIRRE: No.

THE COURT: All right. If I order you deported then, to what country do you want to go?

DEFENDANT AGUIRRE: Mexico.

THE COURT: Do you know, sir, that if you're deported, that you'll lose your status in this country and you could not return except with a visa and proper permission from the Attorney General?

DEFENDANT AGUIRRE: I do.

.... THE COURT: And do you know that your crime would make you ineligible for a visa to come back to the US?

DEFENDANT AGUIRRE: I do.

THE COURT: So that if you want to stay in the US, this is the time to, shall we say, fight it out and try to remain; do you understand that?

DEFENDANT AGUIRRE: I understand.

THE COURT: Now that you know all that, do you want to apply for a pardon?

DEFENDANT AGUIRRE: No.

THE COURT: Why not?

DEFENDANT AGUIRRE: I want to voluntarily return to my country.

THE COURT: Okay. Well, there's no voluntary return available in a case like this, but are you saying you just want to go back?

DEFENDANT AGUIRRE: That's it.

THE COURT: All right. Based on your statements to me, I find that you've knowingly, voluntarily and intelligently waived your opportunity for relief. And I order you deported to Mexico. You can appeal. Do you want to appeal?

DEFENDANT AGUIRRE: No.

THE COURT: Then my decision's final. Good luck, sir.

Id. at 24-26. Aguirre-Tello was accordingly deported to Mexico.

As alleged in the indictment in this case, Aguirre-Tello was found in Dona Ana County, New Mexico, on or about February 10, 2001. He had not received permission from the United States Attorney General to apply for admission into this country following his 1994 deportation. Aguirre-Tello moved to dismiss the indictment, alleging that the 1994 deportation proceeding was fundamentally unfair and invalid under due process grounds.

At the time of Aguirre-Tello's deportation hearing, in 1994, an alien who was otherwise subject to deportation who had been lawfully in this country for seven consecutive years could apply for a discretionary waiver from deportation. INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed effective Sept. 30, 1996) ("Aliens 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...."). Although the statute referred to persons who temporarily leave the United States, it has been held that the § 212(c) waiver is equally applicable to permanent residents who have never left. See INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

The district court concluded that Aguirre-Tello's due process rights were violated in the 1994 deportation proceeding because the IJ used the term "pardon" instead of "waiver" and thereby failed to convey adequately to Aguirre-Tello the nature of the discretionary relief for which he could apply the next day. The district court also found that Aguirre-Tello had not been given a list of free legal services prior to the 1994 deportation hearing, nor had he been advised then that his bond had already been set at $20,000 and that these errors "further exacerbate[d] the constitutional deficiencies of the deportation proceeding." Mem. Op. and Order at 8, Appellant's App. at 181. The district court further noted that Tenth Circuit...