U.S. v. Ahumada-Aguilar, 96-30065.

Citation295 F.3d 943
Decision Date01 July 2002
Docket NumberNo. 96-30065.,96-30065.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricardo AHUMADA-AGUILAR, aka Ricardo Ahumada; aka Ricardo Aguilar; aka Ricardo Alfonso Hernandez, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jay Warren Stansell and Michael Filipovic, Assistant Federal Public Defenders, Seattle, WA, for the defendant-appellant.

Donald M. Reno, Jr., Assistant United States Attorney, United States Department of Justice, Civil Division, Seattle, Washington, for the plaintiff-appellee.

On Remand from the United States Supreme Court. D.C. No. CR-95-00339-1-TSZ.

Before: SCHROEDER, Chief Judge, ALARCÓN, and KLEINFELD, Circuit Judges.

Opinion by Judge ALARCÓN; Dissent by Judge KLEINFELD.

ALARCÓN, Circuit Judge.

Ricardo Ahumada-Aguilar appeals from his conviction pursuant to 8 U.S.C. § 1326(a) and (b) of two counts of reentering the United States, without the consent of the Attorney General, after being deported as an alien following his conviction in a state court of the crimes of residential burglary and possession of cocaine. We reverse the judgment of conviction because we conclude that the Government failed to demonstrate that the underlying deportation proceedings were conducted in conformity with due process.

I

Ahumada-Aguilar was indicted on June 7, 1995. On August 24, 1995, he filed separate motions to dismiss the indictment. In one motion, he requested dismissal on the basis that he is not subject to prosecution for a violation of § 1326(a) and (b)(1) because he is not an alien. Ahumada-Aguilar alleged that at the time of his birth in Mexico to a Mexican citizen mother, his father was a United States citizen. He argued that he met all of the valid constitutional requirements for citizenship set forth in 8 U.S.C. § 1401(g) for a person born out of wedlock whose father is a United States citizen. He also asserted that the requirements of 8 U.S.C. § 1409(a)(3) and (a)(4) that are applicable solely to children born out of wedlock to United States citizen fathers are unconstitutional as a denial of equal protection of the law.

In the second motion, Ahumada-Aguilar argued that the indictment should be dismissed because he was deprived of his right to due process at his November 18, 1991 deportation proceedings. He asserted the following procedural errors: (1) he was not notified he had a right to contact and communicate with the Mexican Embassy; (2) he was not notified of the exact nature of the deportation charges against him until the day of the order to show cause hearing; (3) he was not adequately informed of his right to counsel and the availability of legal services; (4) he did not competently waive that right; (5) he was not adequately informed of the opportunity to seek appellate review of the deportation order; (6) nor did he knowingly and intelligently waive that right.

The district court denied both motions. After a bench trial on stipulated facts, the district court found Ahumada-Aguilar guilty of two counts of illegally reentering the United States.

In response to Ahumada-Aguilar's appeal from the judgment of conviction, a panel of this court consisting of Judges Alarcón, Norris, and Kleinfeld affirmed the district court's judgment of conviction in an unpublished disposition. Judge Norris dissented. He concluded that Ahumada-Aguilar was denied due process at his deportation proceedings because the immigration judge ("IJ") did not obtain a knowing, voluntary, and intelligent waiver of his right to counsel, and did not elicit a valid waiver of his right to appeal.

Consideration of Ahumada-Aguilar's petition for rehearing with suggestion for rehearing en banc was withdrawn pending simultaneous briefing regarding the impact on his equal protection contention of the Supreme Court's decision in Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998), wherein the petitioner raised a similar constitutional attack on § 1409(a)(3) and (a)(4). Because of Judge Norris's retirement from this court, Judge Schroeder was drawn to take his place on the panel. On October 8, 1998, the reconstituted panel withdrew the memorandum disposition and the dissent. In our second opinion in this matter, we reversed the judgment of conviction. United States v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir.1999). The majority held that § 1409(a)(3) and (a)(4) deprives a United States citizen of equal protection of the law. Id. at 1125-27. Judge Kleinfeld dissented. Because we resolved the equal protection claims in Ahumada-Aguilar's favor, we did not consider his contention that the underlying deportation order was invalid because of the deprivation of his procedural rights.

On June 18, 2001, the Supreme Court vacated our judgment and remanded this matter for further consideration in light of Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). The petitioner in Nguyen, like Ahumada-Aguilar, was born out of wedlock to a foreign citizen mother and a United States citizen father. Id. at 57, 121 S.Ct. 2053. Nguyen argued that § 1409(a) "violates equal protection by providing different rules for attainment of citizenship by children born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or the father." Id. at 58, 121 S.Ct. 2053. The Court held in Nguyen that " § 1409(a) is consistent with the constitutional guarantee of equal protection." Id. at 58-59, 121 S.Ct. 2053. Since precisely the same challenge to § 1409(a) has been presented by Ahumada-Aguilar in asserting that he is a United States citizen, we must reject his equal protection challenge to the same statute.

II

Because the Supreme Court has instructed us that § 1409(a) is constitutional, we must now turn to the remaining issues in Ahumada-Aguilar's challenge to the judgment of conviction. Ahumada-Aguilar contends that we must reverse his conviction because the IJ deprived him of his right to due process at the deportation proceedings by failing to require him to state individually whether he desired to be represented by counsel at no expense to the Government. He also argues that his waiver of his right to appeal was invalid because it was not knowing and intelligent.

Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum 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.

United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

In United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992), we held that "[a] defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. § 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice." Id. at 595. A collateral attack on an underlying deportation hearing presents a mixed question of law and fact which we review de novo. Id. at 594.

A.

Congress expressly provided that an alien has the right to representation by counsel at no expense to the Government in 8 U.S.C. § 1362. "Failure to accord an alien this right may, in the light of the entire administrative record, be an abuse of discretion, requiring remand. If the prejudice to the alien is sufficiently great, there may indeed be a denial of due process itself." Castro-O'Ryan v. INS, 847 F.2d 1307, 1312-13 (9th Cir.1988). At the time of Ahumada-Aguilar's deportation proceedings, § 1362 read as follows:

In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings as he shall choose.

8 U.S.C. § 1362 (1991).

The Attorney General promulgated 8 C.F.R. § 242.16(a) to implement § 1362. At the time of Ahumada-Aguilar's deportation proceedings, § 242.16(a) provided in pertinent part:

The Immigration Judge shall advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice authorized to practice in the proceedings and require him to state then and there whether he desires representation; [and] advise the respondent of the availability of free legal services programs ... in the district where the deportation hearing is being held[.]

8 C.F.R. § 242.16(a) (1991) (removed and reserved 62 Fed.Reg. 10312, 10382 (Mar. 7, 1997)).

Before the district court, the prosecutor in Ahumada-Aguilar's criminal reentry proceedings argued that "under present Ninth Circuit case law, there was a procedural defect in the deportation hearing resulting from the failure of the IJ to individually address the defendant regarding the right to counsel." The district court agreed. The district court stated: "No individual colloquy took place. Clearly there has been — was a violation of the regulation and procedure." Notwithstanding this finding, the district court ruled that Ahumada-Aguilar "implicitly waived his rights even though he remained silent and didn't expressly say he did or did not want an attorney." The record of the deportation proceedings does not support this finding. Furthermore, acceptance of an implicit waiver of the right to counsel is unequivocally inconsistent with the duty of an IJ to "require the respondent to state then and there whether he requires representation." 8 C.F.R. § 242.16(a) (1991).

The IJ conducted a group deportation proceeding on November 18, 1991, including Ahumada-Aguilar and at least three other respondents. The portion of the transcript that sets forth the IJ's advice regarding the right to counsel reads as follows.

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