U.S. v. Estrada-Trochez

Decision Date27 September 1995
Docket NumberESTRADA-TROCHE,No. 94-30663,D,94-30663
Citation66 F.3d 733
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Raulefendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Claude J. Kelly, III, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, LA, for appellant.

Richard Westling, Stephen A. Higginson, M. Irene Gonzalez, Asst. U.S. Attys., Eddie J. Jordan, Jr., U.S. Atty., New Orleans, LA, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REYNALDO G. GARZA, GARWOOD and DUHE, Circuit Judges.

DUHE, Circuit Judge:

BACKGROUND

Raul Estrada-Trochez was charged with one count of unlawful re-entry into the United States after deportation in violation of 8 U.S.C. Sec. 1326 and two counts of making false statements in violation of 18 U.S.C. Sec. 1546(b)(3). Estrada-Trochez moved to dismiss the unlawful re-entry charge, claiming that the original deportation was accomplished in violation of due process. The district court denied the motion without a hearing. Estrada-Trochez then entered a guilty plea to the false statement charges, but he conditioned his guilty plea to the unlawful re-entry charge on the right to appeal the denial of the motion to dismiss. Estrada-Trochez now appeals the denial of his motion to dismiss. We affirm.

The record is replete with INS error. There are long, unexplained delays in the proceedings, missing court records, and documents misfiled in internal Immigration and Naturalization Service files. Despite these mistakes, we have pieced together the facts concerning the important issues in this case.

Estrada-Trochez, a citizen of Honduras, legally entered the United States in 1963 at age six. The INS initiated deportation proceedings against him based on a 1977 state drug conviction. The INS issued an Order to Show Cause on February 3, 1978. Appellant and his attorney William Noland appeared Appellant and his attorney were notified by certified mail that a hearing regarding his Sec. 212(c) waiver would be held on November 8, 1979. That hearing was postponed and Noland was informed that he would receive notice of a rescheduled hearing at a future date. Ostensibly due to an oversight by the INS and the Immigration Court, no action was taken in Estrada-Trochez's case for more than five and one-half years.

before an Immigration Court on April 26, 1978 and conceded deportability. At this appearance the Appellant was ordered to file his petition for relief pursuant to 8 U.S.C. Sec. 1182(c) ("Sec. 212(c) waiver"). On June 13, 1978, Estrada-Trochez timely filed the appropriate form I-191.

On June 5, 1985 the INS filed a Motion for Decision requesting that the Immigration Court find that Estrada-Trochez had abandoned his request for a Sec. 212(c) waiver because he had failed to timely file an I-191. Five days later, the INS withdrew its motion, conceding that Appellant had timely filed the I-191.

Noland moved to withdraw as Estrada-Trochez's counsel on June 12, 1985, asserting that he had not been in contact with his client for several years and did not know how to locate him. Noland averred that, although he "maintained the same law office address and telephone number from 1978 to present" he never received a response from the Immigration Court regarding his motion to withdraw, nor did he receive any notices of hearings from the Immigration Court. No action was taken on the case for another two years.

On February 13, 1987, a notice of hearing was mailed to Noland indicating that a hearing regarding Estrada-Trochez's I-191 would be held on March 27, 1987. That hearing was rescheduled, and Noland did not receive any further notice regarding a new hearing date. On May 21, 1987, a notice of a hearing to be conducted on July 16, 1987, was mailed to Estrada-Trochez at his 1978 address via regular mail. The notice of hearing was returned as undeliverable.

The deportation hearing was held in absentia on July 21, 1987, and the Immigration Court held that Estrada-Trochez was deportable (as Appellant had admitted) and had failed to establish his eligibility for discretionary relief. A warrant of deportation issued on August 5, 1987, and notice that he was to be deported was sent to Estrada-Trochez's 1978 address via certified mail. Appellant asserts that he did not learn of the deportation order until he filed a request for a replacement alien registration card in 1992. He was arrested by INS agents on June 30, 1992 and deported to Honduras on July 8, 1992.

INS agents arrested Estrada-Trochez on October 14, 1993 in Louisiana after he had illegally re-entered the country on or about January 7, 1993. Appellant moved to re-open the 1987 deportation proceeding, asserting that he was denied procedural due process because neither he nor his attorney of record received notice of the deportation hearing. The Immigration Court denied the motion, finding that the execution of a deportation order on July 8, 1992 foreclosed any right Estrada-Trochez had to contest the lawfulness of the deportation.

DISCUSSION

Appellant's claim that the District Court incorrectly applied constitutional standards is reviewed de novo. United States v. Perez-Torres, 15 F.3d 403, 406 (5th Cir.1994).

To prevail in a collateral challenge to a deportation order, an alien must prove: (1) The deportation hearing was fundamentally unfair; (2) the defective deportation hearing effectively eliminated the alien's right to direct judicial review of the deportation order; and (3) the procedural deficiencies caused actual prejudice. United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 391, 121 L.Ed.2d 299 (1992). Prejudice requires a showing "that there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported." Id. We hold that Estrada-Trochez cannot demonstrate that the deportation hearing was fundamentally unfair, and therefore, limit our discussion to the first prong of the Encarnacion-Galvez test.

The Fairness of the Deportation Hearing

An alien is entitled to due process under the Fifth Amendment in his deportation Appellant argues that the notice sent to his last known address was inadequate under 8 U.S.C. Sec. 1252(b),...

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