U.S. v. Calles-Pineda

• Decision Date: 12 September 1980
• Docket Number: No. 79-1720,D,CALLES-PINED,79-1720
• Citation: 627 F.2d 976
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Arnolfoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 976

627 F.2d 976

UNITED STATES of America, Plaintiff-Appellee, v. Jose Arnolfo CALLES-PINEDA, Defendant-Appellant.

No. 79-1720.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 13, 1980.

Decided Sept. 12, 1980.

John W. Tapp, Seattle, Wash., on brief, for defendant-appellant.

Peter O. Mueller, Asst. U.S. Atty., Seattle, Wash., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, SNEED, and CANBY, Circuit Judges.

PER CURIAM:

Jose Calles-Pineda appeals his conviction for entering the United States after deportation in violation of 8 U.S.C. § 1326. ¹ We affirm.

Calles-Pineda defended by collaterally attacking on due process grounds the two deportations underlying the section 1326 charge. A well-established Ninth Circuit rule permits such a defense in criminal prosecutions. United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980); United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975). The government challenges the validity of our rule in light of Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), precluding collateral attack upon the underlying felony convictions in a prosecution under 18 U.S.C. App. § 1202(a) (1) for possession of firearms by a convicted felon. We do not reach this issue, however, because we conclude that, regardless of the propriety of collateral attack in the present context, Calles-Pineda has failed to assert due process violations sufficient to invalidate the underlying deportations.

Calles-Pineda alleges five respects in which his due process rights were violated in each of the two deportation proceedings: (1) a single hearing was conducted with multiple respondents; (2) Calles-Pineda was never personally addressed by the immigration judge; (3) the interpreter's Spanish language translations of the questions and the respondents' Spanish language answers were not recorded; (4) the interpreter was neither sworn on the record nor shown to be an Immigration and Naturalization Service (I&NS) employee; (5) the immigration judge asked respondents whether they desired to appeal without notifying them that they had ten days in which to do so.

In United States v. Barraza-Leon, 575 F.2d 218 (9th Cir. 1978), this court upheld procedures substantially identical to those upon which Calles-Pineda's first three due process attacks are based. Calles-Pineda contends that, while the Barraza-Leon deportation hearing with eight respondents may have comported with due process, his hearings with twenty-nine and twenty-five respondents, respectively, exceeded the bounds of fairness. We agree that mass deportation hearings must have an outer limit. That limit has been reached in these cases. We would not expect a panel of this court to approve mass hearings any larger than those conducted in these cases. We are unwilling, however, to draw the line to exclude these cases without prior warning and in the absence of any suggestion by Calles-Pineda that he was prejudiced in fact by the procedures employed.

With respect to the third ground (failure to record the Spanish translations of the questions and the Spanish answers), Calles-Pineda advances a contention not considered in United States v. Barraza-Leon, supra.

Calles-Pineda contends that the selective recording of his deportation hearings violated an I&NS regulation requiring verbatim recording of deportation hearings. 8 C.F.R. § 242.15. Before a violation of an I&NS regulation will invalidate his deportations, however, Calles-Pineda must show that the regulation serves a purpose of benefit to him and that the violation prejudiced this protected interest. United States v. Rangel-Gonzales, supra, at 530. Undoubtedly, one purpose of the verbatim recording regulation is to protect respondents in deportation proceedings. But Calles-Pineda has not satisfied the second requirement: he has shown no prejudice to his protected interest from the selective recording. Nowhere does he allege...