U.S. v. Camacho-Bordes

• Decision Date: 18 October 1996
• Docket Number: A,CAMACHO-BORDE,No. 95-4156,95-4156
• Citation: 94 F.3d 1168
• Parties: UNITED STATES of America, Appellant, v. Carlosppellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1168

94 F.3d 1168

UNITED STATES of America, Appellant, v.Carlos CAMACHO-BORDES, Appellee.

No. 95-4156.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1996.

Decided Sept. 3, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

18, 1996. ^*

Robyn Millenacker, Minneapolis, MN, argued, for appellant.

Robert Dildine, Minneapolis, MN, argued, for appellee.

Before MAGILL, LAY, and ROSS, Circuit Judges.

MAGILL, Circuit Judge.

Pursuant to a plea agreement, Carlos Camacho-Bordes, a Mexican national, pled guilty in 1985 to possession of cocaine with intent to distribute, in violation of 18 U.S.C. § 841(a)(1).Based on this conviction for a drug trafficking crime, he was subsequently deported.See8 U.S.C. § 1251(a)(11).After unsuccessfully attacking his deportation, Camacho-Bordes brought the present action under 28 U.S.C. § 1651 to withdraw his guilty plea, contending that the government breached the plea agreement.Although initially denied, the motion was later granted by the district court after Camacho-Bordes presented new evidence.Because we conclude that the plea agreement did not contain an unfulfillable promise and the government did not breach the plea agreement, we reverse.

I.

Camacho-Bordes lawfully entered the United States in 1979.Based upon his subsequent marriage to a United States citizen in 1983, he became a lawful permanent resident on November 13, 1983.

In 1985, Camacho-Bordes was arrested on various cocaine distribution charges, arising from incidents occurring in 1983 and 1985.Two indictments were issued against him, each charging him with two counts of distribution of cocaine and one count of conspiracy to distribute cocaine.With a possible sentence of fifteen years on each of the six counts, Camacho-Bordes admitted that he faced "a very long possible prison sentence if [he] were to be convicted on all the counts."Tr. of Proceedings (Change of Plea)at 8(Dec. 27, 1985).

Camacho-Bordes, in order to lessen the likelihood of deportation following his prison term, pled guilty to one count of possession of cocaine, a violation of 18 U.S.C. § 841(a)(1).SeeAppellee's Br.at 2.In exchange for the plea, the government dismissed the other five charges pending against Camacho-Bordes.The plea agreement stipulated that "the Government agrees, if requested by Mr. Bordes, to make a written recommendation against deportation to the INS."Tr.at 3.

At the change of plea hearing, the sentencing district judge, (then) Chief Judge Diana Murphy, spent considerable time with Camacho-Bordes to ensure that he fully understood the terms of the plea agreement:

THE COURT: And did you listen while Ms. de la Vega was stating the plea agreement?

DEFENDANT BORDES: Yes, I did.

THE COURT: Did she leave anything out that you think is part of the agreement?

DEFENDANT BORDES: No, I don't think so.

THE COURT: Do you think that you've been promised any benefit of any type that wasn't mentioned here?

DEFENDANT BORDES: No.

....

THE COURT: Part of this agreement is that if you want--and I'm sure that you may well want the Government to follow up on this--but that the Government would write a letter recommending that you not be deported.But are you aware that you could still be deported.

DEFENDANT BORDES: Yes, I am.

THE COURT: Okay.This Court doesn't have any control over that.Do you understand that?

DEFENDANT BORDES: I understand that.

THE COURT: And the U.S. Attorney also doesn't control that.

DEFENDANT BORDES: I understand.

THE COURT: Although presumably the INS will consider carefully what the U.S. Attorney says, it doesn't have to do what the U.S. Attorney recommends.Do you understand that?

DEFENDANT BORDES: I do.

THE COURT: So you could face this 15 years in prison, and you could be deported.Do you understand that?

DEFENDANT BORDES: I understand that.

Tr.at 5-7.After the plea was taken, the district court sentenced Camacho-Bordes to eighteen months imprisonment and three years special parole.

While Camacho-Bordes was serving his sentence, the INS instituted deportation proceedings against him, based on his conviction for a drug trafficking crime.See8 U.S.C. § 1251(a)(11).Camacho-Bordes conceded his deportability at his deportation hearing before an immigration judge (IJ) on April 27, 1988.Nevertheless, he petitioned for discretionary relief under § 212(c) of the Immigration and Nationality Act (INA),8 U.S.C. § 1182(c), which permits the Attorney General to waive the deportation of a lawfully admitted permanent resident who has resided in the United States for seven years.¹ The IJ noted that the seven-year residency clock started when Camacho-Bordes became a lawful resident in 1983, and not when he first arrived in the United States in 1979.Thus, he was ineligible for a discretionary waiver of deportation under § 212(c) because at the time of the hearing he had been a permanent resident for only five years.

Camacho-Bordes appealed this ruling to the Board of Immigration Appeals(BIA), contending that the seven-year clock should have begun to run when he first entered the United States.He further noted that, regardless of when the clock began running, as of the time of the BIA decision, handed down on October 27, 1993, he met the seven-year residency requirement.Thus, he argued, his case should be remanded to the IJ for a discretionary § 212(c) hearing.He also argued, for the first time on appeal to the BIA, that the plea agreement was invalid.

The BIA rejected Camacho-Bordes's arguments.The BIA declined to consider the plea agreement argument because it was raised for the first time on appeal.The BIA then noted that the seven-year clock begins to run at the time of permanent residence.Finally, the BIA refused to count the residency time accrued while his appeal was pending towards § 212(c)'s residency requirement, concluding that the appeal was brought solely to delay the proceedings in order to meet the residency requirement.

Camacho-Bordes filed a petition for review in this Court.Because Camacho-Bordes had been convicted of a drug trafficking offense, however, the filing of a petition for review did not automatically stay the order of deportation.When Camacho-Bordes sought a temporary stay of deportation, the INS submitted a memorandum in opposition to this motion.Although a temporary stay was granted, it was subsequently dissolved, and on April 8, 1994, Camacho-Bordes was deported to Mexico.The INS then sought to have this Court dismiss the appeal for lack of jurisdiction.This Court agreed, explaining that it could maintain jurisdiction over the appeal of an already-deported alien only if the record reveals a colorable due process claim, which was not present in this case.SeeCamacho-Bordes v. INS, 33 F.3d 26, 27-28(8th Cir.1994)(interpreting8 U.S.C. § 1105a(c)).

On March 29, 1994, before this Court had announced its decision in Camacho-Bordes, Camacho-Bordes petitioned the district court for a writ of coram nobis, ² pursuant to the All Writs Act,28 U.S.C. § 1651, seeking to have his guilty plea withdrawn and his conviction reversed.He argued that (1) the government had failed to honor its obligation under the plea agreement to tender a recommendation against his deportation to the INS, and (2) the plea agreement was voidable because the government's promise was "unfulfillable," having been made to a resident alien who had been a lawful resident in the United States for less than seven years, and who thus would fail to qualify for discretionary relief under INA § 212(c).

The core of Camacho-Bordes's argument was that "Bordes understood that this [plea] agreement would avoid his being deported from the United States as a result of his guilty plea."Mem.at 4(Mar. 29, 1994).Camacho-Bordes further asserted that he"relied upon and believed the negotiated plea ... provided protection against his being deported because of this conviction," and that he was "under the impression that it was within the power of the U.S. Attorney's office to effectuate the process by which Bordes could avoid deportation."Id. at 7.

The district court rejected Camacho-Bordes's arguments.The court explained that at the time of the change of plea proceedings in 1985, Camacho-Bordes acknowledged "under oath in open court that he understood ... the agreement did not guarantee that he would be allowed to remain in the United States."Orderat 4(Aug. 8, 1994).The district court further noted that there was a condition precedent to the government's duty to recommend against Camacho-Bordes's deportation, namely his request of the letter.Because this condition precedent was never fulfilled, the government did not breach the plea agreement.Id. at 5.Finally, the district court noted that Camacho-Bordes "presented no evidence suggesting that the promises to recommend against deportation were unfulfillable."Id.Camacho-Bordes moved for reconsideration of this order, but his motion was denied.

On July 3, 1995, Camacho-Bordes, relying heavily on Margalli-Olvera v. INS, 43 F.3d 345(8th Cir.1994), ³ moved the district court⁴ to reopen the proceedings for consideration of new evidence and to have his guilty plea withdrawn--essentially, a second petition for a writ of coram nobis.Camacho-Bordes contended that the plea agreement was breached when the INS recommended that this Court not grant Camacho-Bordes's motion for a stay of deportation.Camacho-Bordes further argued that because his breach of plea argument has merit, his appeal to the BIA was not frivolous.Accordingly, the time accrued during the appeal should have counted towards the § 212(c) residency requirement, which Camacho-Bordes would now meet.Finally, Camacho-Bordes renewed his argument that the plea agreement was voidable because it contained an unfulfillable promise when made.

The district court granted the motion.The court conclusorily noted that "the government did not act...