U.S. v. Garay-Burgos
| Decision Date | 15 April 1997 |
| Docket Number | No. CR-96-489-PHX-ROS.,CR-96-489-PHX-ROS. |
| Citation | 961 F.Supp. 1321 |
| Parties | UNITED STATES of America, Plaintiff, v. Arturo GARAY-BURGOS, Defendant. |
| Court | U.S. District Court — District of Arizona |
Jon M. Sands, Federal Public Defender's Office, Phoenix, AZ, for Arturo Garay-Burgos.
Stanley Levis Patchell, Vincent Quill Kirby, Kevin M. Rapp, U.S. Attorney's Office, Phoenix, AZ, for U.S.
The Defendant asks this Court to dismiss the indictment against him for the charge of re-entry after deportation on the grounds that his prior deportation was obtained in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution.
The Defendant has been charged with the crime of illegal re-entry after deportation under 8 U.S.C. §§ 1326(b)(1) and (2). On February 15, 1978, the Defendant was convicted of the crime of Conspiracy to Distribute Heroin in New Mexico. He was then incarcerated in federal prison. After he completed his prison term, on August 28, 1995, he was deported on the basis of this conviction. On October 4, 996, he entered and was found in the United States, Maricopa County, Arizona. He was then charged with the crime of illegal re-entry after deportation.
The Double Jeopardy Clause of the Fifth Amendment protects any person against being "twice put in jeopardy of life or limb." U.S. Constitution, Amendment V. The Double Jeopardy Clause has been held to consist of several protections. Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 789, 127 L.Ed.2d 47 (1994) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969)). In INS v. Lopez-Mendoza, 468 U.S. 1032, 1049, 104 S.Ct. 3479, 3488-89, 82 L.Ed.2d 778 (1984), the Supreme Court held that because a deportation hearing is a civil proceeding, certain protections that apply in the context of a criminal trial do not apply in a deportation hearing. The Court stated:
A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering and remaining unlawfully in this country is itself a crime.... The deportation hearing looks prospectively to the respondent's right to remain in this country in the future. Past conduct is relevant only insofar as it may shed light on the respondent's right to remain.... The purpose of deportation is not to punish past transgressions but rather to out an end to a continuing violation of the immigration laws.
Id. at 1038-39, 104 S.Ct. at 3483 (emphasis added) (declining to apply exclusionary rule to deportation proceedings). See also, Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028-29, 37 L.Ed. 905 (1893); United States v. Yacoubian, 24 F.3d 1, 10 (9th Cir.1994) (); Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 n. 7 (9th Cir. 1993) (); LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir.1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 748, 50 L.Ed.2d 757 (1977); Chabolla-Delgado v. Immigration and Naturalization Service, 384 F.2d 360 (9th Cir. 1967), cert. denied, 393 U.S. 865, 89 S.Ct. 147, 21 L.Ed.2d 133 (1968) (). Despite this long line of precedent, the Defendant urges this Court to find that the deportation to which he was subjected did violate the Double Jeopardy Clause because the Supreme Court's decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), invalidates the long-standing rule that deportation is not a punishment.
The Defendant argues that the Supreme Court's opinion in Halper established a new test, which subjects all government civil sanctions to constitutional scrutiny on a case-by-case basis. This position misstates the law.
In Halper, the Court considered the question of whether and under what circumstances an in Personam. civil penalty might constitute punishment for Double Jeopardy purposes. The Court set forth a balancing analysis to be conducted to determine whether a particular civil penalty constitutes punishment for Double Jeopardy purposes. The Court stated that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Id. at 448, 109 S.Ct. at 1902. The Court concluded that in the rare case where a "fixed penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused," the offender is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment. Id. at 449, 109 S.Ct. at 1902. Following Halper, the Defendant argues that deportation, although classified as a civil proceeding, is in fact a "severe and shocking punishment" and serves deterrent and retributive purposes, rather than any remedial purpose which would justify the imposition of the civil penalty.
However, the Supreme Court commented on and limited the narrow reach of Halper's case-by-case approach in United States v. Ursery, ___ U.S. ___, ___, 116 S.Ct. 2135, 2144, 135 L.Ed.2d 549 (1996), distinguishing that approach from the categorical approach long used to determine whether in rem civil forfeitures constitute punishment for Double Jeopardy purposes. See e.g., United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363, 104 S.Ct. 1099, 1105, 79 L.Ed.2d 361 (1984). In distinguishing Halper, the Supreme Court relied on the distinction historically drawn between in Personam civil penalties and in rem civil forfeitures, see Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 283-84, 75 L.Ed. 558 (1931), and the practical difficulty of applying Halper to a civil forfeiture. Ursery, ___ U.S. at ___, 116 S.Ct. at 2144.
Because a deportation is an in Personam civil penalty, the Ursery analysis regarding in rem civil forfeitures is distinguishable and tends to suggest that this Court might be constrained to follow the case-by-case balancing approach adopted in Halper, rather than the categorical approach recognized in Ursery. However, the balancing test adopted in Halper, focuses heavily on the amount of the civil fine imposed when weighing it against the actual amount of damages suffered by the Government. In Halper, the Court found that the fine imposed was sufficiently disproportionate to the Government's actual damages to constitute punishment where the fine imposed was $130,000, but the district court had determined that the Government's actual damages were no more than $16,000. Ursery, ___ U.S. at ___, 116 S.Ct. at 2143; Halper, 490 U.S. at 452, 109 S.Ct. at 1903-04.
By contrast, this case does not concern the imposition of monetary penalties. The most analogous case from the Ninth Circuit is United States v. Borjesson, 92 F.3d 954, 956 (9th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 622, 136 L.Ed.2d 545 (1996), where the court held in the context of a challenge to an administrative debarment from participation in HUD programs that, Similarly here, where this Court is confronted with a challenge to a deportation, it would be impossible to quantify in dollar amounts the cost of the deportation to the individual or the value of the deportation to the United States. It would also be impossible to quantify the amount of damages suffered by the Government in the particular case of an alien who remains in the United States without legal permission. The balancing analysis employed in Halper focuses directly on the relationship between the amount of money necessary to compensate the Government for its costs incurred as a result of the wrong-doer's criminal activities and the amount of the civil penalty actually imposed. Accordingly, this analysis is unworkable in the context of a challenge to the civil penalty of deportation, where the deportation was never intended to satisfy a quantifiable debt owed to the United States government. See e.g., Ursery, ___ U.S. at ___, 116 S.Ct. at 2144 ().
By contrast, the two-step categorical approach employed by the Supreme Court in Ursery is helpful in analyzing the question of whether a deportation following a felony conviction constitutes a "multiple punishment" within the meaning of the Double Jeopardy clause. That approach directs the Court to ask whether (1) Congress intended proceedings under the particular statute to be remedial and (2) the proceedings are "so punitive in fact as to `persuade us that the [forfeiture] proceedings may not legitimately be viewed as civil in nature, despite Congress' intent." Ursery, ___ U.S. at ___, 116 S.Ct. at 2147 (quoting 89 Firearms, 465 U.S. at 366, 104 S.Ct. at 1107).
It has historically been understood that the "expulsion of aliens is a sovereign power necessary to the safety of the country, to be regulated by the legislative department." See H.R.Rep. No. 82-1365 (1952), reprinted in 1952 U.S.S.C.A.N. 1653, 1654. The purpose of deportation is to exclude from the United States persons whom the legislature believes to be a threat to the nation's safety and welfare, including persons, such as criminal...
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