U.S. v. Encarnacion-Galvez, ENCARNACION-GALVE
| Decision Date | 17 June 1992 |
| Docket Number | ENCARNACION-GALVE,No. 91-1853,D,91-1853 |
| Citation | 964 F.2d 402 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Robertoefendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Timothy W. Crooks, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, Tex., for defendant-appellant.
Joe C. Lockhart, John Bradford, Asst. U.S. Attys., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before KING and WIENER, Circuit Judges, and LAKE, * District Judge.
Defendant-Appellant, Roberto Encarnacion-Galvez, appeals his conviction for illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326. Encarnacion-Galvez argues that the district court erred in denying his motions to dismiss the indictment and to suppress evidence. We AFFIRM.
Encarnacion-Galvez is a citizen of Mexico. He unlawfully entered the United States in May of 1983. In 1987 he was convicted of aggravated robbery in a Texas state court and received a ten-year sentence. While Encarnacion-Galvez was in state prison the United States Immigration and Naturalization Service initiated deportation proceedings against him under 8 U.S.C. § 1251(a). This statute provided a number of alternative grounds for deporting an alien. Among those grounds were entry into the United States without inspection and commission of a crime of moral turpitude within five years after entry into the United States for which a sentence of confinement of a year or more is imposed. 1 At the hearing before the district court on his motion to dismiss the indictment Encarnacion-Galvez gave the following answers to questions about a meeting he had with his attorney after an immigration judge ordered him to show cause why he should not be deported:
Q. And what, to your recollection, did you discuss with her about your immigration status?
A. She told me that I will be deported, but I need to appear before a judge.
Q. And what did she advise you in respect to appearing before the judge?
A. She told me that I had a chance to stay here in Texas or to be sent back to Mexico.
Q. What did she tell you would happen if you chose to fight the case and try to stay in the United States?
A. She told me that my chances wasn't very big because I was with aggravated crime committed, but she told me that I have some chances for the long period of time that I have been here in the United States.
Q. Was your decision to fight the immigration case, Mr. Encarnacion?
A. No.
Q. Why did you choose not to fight the case?
A. Because she told me that, if I wanted to fight it, I needed to be in jail for six months, for a period between six months to a year.
Q. What did you choose to do, instead, Mr. Encarnacion?
A. According to what she told me and explained to me is that I was able to go back to Mexico, if I would sign a voluntary departure.
Q. Did you, in fact, sign a document waiving your right to a hearing?
A. Yes. 2
Encarnacion-Galvez identified for the district court a Spanish language instrument entitled "Statements Given For The Final Deportation Order To Be Issued" that he and his attorney signed on March 17, 1988. Encarnacion-Galvez testified that he discussed the "Statements" with his attorney and read the instrument before signing it, although he did not read Spanish well. 3 In the "Statements" Encarnacion-Galvez acknowledged, among other things:
(1) I have been given the Order to Show Cause on 3-1-88, and my true, correct and complete name is as stated in that document.
(2) I have consulted with the attorney mentioned below, and I hereby give up my right to have a hearing before an immigration judge.
(3) My lawyer has fully explained my rights to me. I understand my rights, and I waive further explanation of my rights by the court.
(4) I hereby admit all the allegations of fact contained in the Order to Show Cause as true and correct as written.
(5) I hereby agree that I am subject to be deported from the United States in accordance with the charges in the Order to Show Cause.
. . . . .
(7) I am requesting the issuance of an order for my deportation to Mexico.
. . . . .
(9) I will accept a written order of deportation to the country I designate as the final disposition of this deportation process. 4
The March 1, 1988, Order to Show Cause referred to in the "Statements" alleged that Encarnacion-Galvez was a citizen of Mexico, that he entered the United States illegally in May of 1983, that he was convicted of aggravated robbery on September 1, 1987, for which he was sentenced to ten years' confinement in the Texas Department of Corrections, and that he was deportable under § 241(a)(2) and (4) of the Immigration and Nationality Act 5 because he had entered the United States illegally and, after entry, had been convicted of a crime of moral turpitude for which he was sentenced to confinement of a year or more.
On April 29, 1988, the immigration judge signed a Decision and Order deporting Encarnacion-Galvez to Mexico. 6 In the Decision and Order the immigration judge acknowledged Encarnacion-Galvez's "Statements" waiving a hearing, admitting the charges in the Order to Show Cause, and conceding his deportability. The judge concluded that there were no factual or legal disputes to be resolved, and that "as a result of respondent's admitted criminal record in the United States, there [is] no relief from deportation apparently available to him or discretionary considerations to be exercised by the [judge]...." Encarnacion-Galvez did not appeal the order of deportation or pursue further administrative remedies. 7
Encarnacion-Galvez was deported on September 5, 1990. He did not receive consent from the Attorney General to apply for readmission to the United States after his deportation. On March 1, 1991, United States Border Patrol agents Torrez and Guerrero, patrolling in an unmarked vehicle, observed Encarnacion-Galvez driving a vehicle in Mineral Wells, Texas. Agents Torrez and Guerrero were suspicious that Encarnacion-Galvez and a passenger, Ramirez, were illegal aliens because of their physical appearance and manner of dress, and the agents followed the vehicle driven by Encarnacion-Galvez into a parking lot. The vehicle driven by Encarnacion-Galvez stopped and parked before the agents' vehicle reached the lot. After parking in a manner that did not prevent Encarnacion-Galvez from driving or walking out of the lot, the agents approached Encarnacion-Galvez's vehicle on foot. Both agents were dressed in plain clothes and were armed, but their weapons were not visible to Encarnacion-Galvez or Ramirez. Speaking through the automobile window, the agents identified themselves as Border Patrol agents and inquired about Ramirez's citizenship status. After Ramirez stated that he was a resident alien, agent Torrez asked him to produce his resident alien card. Ramirez responded that his resident alien card was at his home in Weatherford, Texas. At Torrez's request Ramirez then got out of the car so that a computer check could be run on his citizenship status.
While agent Guerrero continued talking with Ramirez, agent Torrez questioned Encarnacion-Galvez, who had remained in the car, through the passenger-side window. Encarnacion-Galvez stated that he also was a resident alien and produced a Texas driver's license issued in his name. When asked to produce his resident alien card, Encarnacion-Galvez also said that he had left it at his home in Weatherford. Encarnacion-Galvez agreed to a computer check on his citizenship status. The computer checks conducted by agent Torrez did not reflect that Encarnacion-Galvez and Ramirez were registered as resident aliens. Encarnacion-Galvez and Ramirez then agreed to accompany the agents to Weatherford to produce their resident alien cards. While riding in the agents' vehicle, Encarnacion-Galvez recanted and admitted that he was not a resident alien. 8
On March 28, 1991, Encarnacion-Galvez was indicted for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He moved to dismiss the indictment and to suppress his driver's license and his statements to the Border Patrol agents. The district court held an evidentiary hearing on both motions.
The testimony raised three factual disputes concerning Encarnacion-Galvez's deportation. First, contrary to the language of the "Statements," Encarnacion-Galvez testified that he believed that by signing the "Statements" he was agreeing to voluntary departure, not deportation. Second, Encarnacion-Galvez testified that he did not understand that by signing the "Statements" he would never appear before a judge. 9 This testimony contradicted admission (2) of the "Statements" and the testimony of Encarnacion-Galvez that he signed the "Statements" only after his lawyer told him that if he chose "not to fight the case" and to sign the waiver of his right to a hearing, he would not need to appear before an immigration judge. 10 Finally, Encarnacion-Galvez argued that he did not knowingly waive his right to a hearing and to deportation because at the time that he signed the "Statements," he did not read Spanish well, did not speak English at all, and had relied upon another inmate to translate the discussions with his lawyer.
The district court resolved these fact issues against Encarnacion-Galvez. The court found that 11 The court also denied Encarnacion-Galvez's motion to suppress, holding that the contact between the Border Patrol agents and Encarnacion-Galvez was not a seizure requiring...
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