U.S. v. Gonzalez-Valerio

• Decision Date: 08 September 2003
• Docket Number: No. 02-50260.,02-50260.
• Citation: 342 F.3d 1051
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Marco Gonzalez-Valerio, aka Marcos Valerio, aka Marcos Gonzalez Valerio, aka Marcos Gonzalez-Valerio, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.3d 1051

UNITED STATES of America, Plaintiff-Appellant, v. Marco Gonzalez-Valerio, aka Marcos Valerio, aka Marcos Gonzalez Valerio, aka Marcos Gonzalez-Valerio, Defendant-Appellee.

No. 02-50260.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2003 — Pasadena, California.

Filed September 8, 2003.

Kevin M. Lally, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellant.

Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CR 01-0802 SVW.

Before: Harry Pregerson, A. Wallace Tashima, and Richard R. Clifton, Circuit Judges.

OPINION

TASHIMA, Circuit Judge.

The United States appeals the district court's dismissal of the indictment against Marco Gonzalez-Valerio ("Gonzalez") for being found in the United States after a prior deportation, in violation of 8 U.S.C. § 1326. The district court found the underlying deportation order to be invalid because the immigration judge ("IJ") violated Gonzalez's right to due process by failing to tell him at the deportation hearing that he was eligible to apply for relief from deportation under former § 212(c) of the Immigration and Nationality Act ("INA"). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731, and we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Gonzalez, a native of Mexico, became a permanent resident of the United States on December 1, 1990. In 1994, he pled guilty to committing a lewd act upon a child under the age of 14. He served approximately three years and 11 months of a six-year sentence before being released. On October 21, 1997, he pled no contest to a charge of violating Cal.Penal Code § 273.5, corporal injury upon a spouse. On April 8, 1998, the Immigration and Naturalization Service ("INS") served Gonzalez with a Notice to Appear for removal proceedings, based on his 1994 conviction. On April 20, 1998, Gonzalez appeared pro se before the IJ and was ordered deported.¹ He did not appeal the deportation order to the Board of Immigration Appeals ("BIA"). Gonzalez represented to the district court that the IJ told him he was ineligible for relief from deportation.²

Gonzalez again re-entered the United States. On December 29, 1999, he was charged with battery of a spouse, in violation of Cal.Penal Code § 243(e), and willful harm or injury to a child, in violation of Cal.Penal Code § 273a(b). The INS reinstated his earlier deportation order and again deported him to Mexico. Gonzalez again re-entered the United States, and was arrested on July 30, 2001. He was then charged in the current indictment, under 8 U.S.C. § 1326, with being an illegal alien found in the United States after being deported.

The district court found that his underlying deportation order was invalid because the IJ had not informed Gonzalez that he had the right to seek a discretionary waiver of deportation under former § 212(c) of the INA. The district court therefore granted Gonzalez's motion to dismiss the indictment. The government timely appeals.

STANDARD OF REVIEW

A district court's ruling on a defendant's collateral attack of a deportation proceeding is reviewed de novo. United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir.2002).

DISCUSSION

A. Relief Under Former § 212(c)

Former § 212(c) of the INA, codified at 8 U.S.C. § 1182(c)(1985), provided that "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General...." Section 212(c) has been interpreted to authorize any permanent resident alien to apply for discretionary waiver from deportation. See Ayala-Chavez v. INS, 944 F.2d 638, 640 n. 2 (9th Cir.1991). In 1990, Congress amended § 212(c) to preclude discretionary relief for anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. Pub.L. No. 101-649, § 511, 104 Stat. 4978, 5052 (1990) (amending 8 U.S.C. § 1182(c)). In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), which in § 440(d), identified the set of offenses for which convictions would preclude relief under § 212(c). See Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (amending 8 U.S.C. § 1182(c)). Also in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which repealed § 212(c) and replaced it with the new procedure of cancellation of removal, under which persons who had been convicted of an aggravated felony are ineligible for such relief. See IIRIRA, Pub.L. No. 104-208 Division C, § 304(b), 110 Stat. 3009-546, 3009-597 (1996) (repealing § 212(c)); see id. § 340(a)(3), 110 Stat. 3009-594, codified at 8 U.S.C. § 1229b(a)(3) (2001) (prohibiting cancellation of removal for persons convicted of aggravated felonies). It also expanded the definition of "aggravated felony" by reducing the prison sentence required to trigger aggravated-felony status from five years to one year. See IIRIRA § 321(a)(3), 110 Stat. 3009-627, codified at 8 U.S.C. § 1101(a)(43)(F) (2001).

At the time of Gonzalez's deportation hearing, the BIA had taken the position that the newly-added 1996 restrictions on § 212(c) relief applied to aliens who had committed a crime prior to their enactment. See In re Soriano, 21 I & N Dec. 516 (BIA 1996). However, in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that "§ 212(c) relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326, 121 S.Ct. 2271. Because St. Cyr pled guilty to a deportable offense at a time when § 212(c) relief was available, such relief remained available to him notwithstanding the later repeal of that section. Id.

B. The Challenge to the Deportation Order

The INA provides for criminal penalties for aliens who re-enter without permission after deportation. 8 U.S.C. § 1326(a)-(c). A collateral attack on the underlying deportation can succeed where the alien shows that his due process rights were violated in his deportation proceeding and that he suffered prejudice as a result of such violation. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). Gonzalez argues that his due process rights were violated because the IJ failed to inform him of his right to petition for relief under former § 212(c). The duty of the IJ to inform an alien of his eligibility for relief is mandatory, and the failure to do so constitutes a violation of the alien's due process rights. United States v. Muro-Inclan, 249 F.3d 1180, 1183-84(9th Cir.2001). Here, however, we need not address whether the IJ adequately informed Gonzalez of the availability of relief under § 212(c) because, even assuming that he did not, Gonzalez cannot demonstrate prejudice.

In order successfully to challenge his deportation order, Gonzalez must establish that he was prejudiced by the failure of the IJ to inform him of the potential for discretionary relief. United States v. Alvarado-Delgado, 98 F.3d 492, 493(9th Cir.1996) (en banc). Gonzalez does not have to demonstrate that he would have received relief, only that he has plausible grounds for relief under § 212(c). See United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996); see also Muro-Inclan, 249 F.3d at 1184. Once Gonzalez makes a prima facie showing of prejudice, the burden shifts to the government to demonstrate that the procedural violation could not have changed the proceedings' outcome. See United States v. Gonzalez-Mendoza, 985 F.2d 1014, 1017 (9th Cir.1993).

Gonzalez cannot establish that he was prejudiced because his 1997 conviction for willful infliction of corporal injury upon a spouse statutorily barred him from receiving § 212(c) relief. His no contest plea to that charge occurred after the enactment of IIRIRA and the consequent elimination of relief from deportation for those convicted of aggravated felonies, but prior to his deportation hearing. The district court refused to consider whether this would constitute an aggravated felony precluding relief because it was not included in the Notice to Appear. The district court, however, erred in conflating the rules for considering aggravated felonies as the basis for deportation with those for considering them as a bar to relief under § 212(c).

The government correctly contends that Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001), relied upon by the district court to presume that it could not review the 1997 conviction, only addressed the question of whether convictions not alleged in the Notice to Appear could constitute aggravated felonies as the basis for deportation or removal. It did not consider whether an aggravated felony not listed in the Notice to Appear could serve as a bar to discretionary relief. In rejecting the government's argument that the court could uphold the BIA's removability determination based on an aggravated felony that was not alleged in the Notice to Appear and was not considered by the BIA, Chowdhury held:

Instead, we agree[] with the First Circuit that "we do not read `deportable by reason of having committed' an aggravated felony, IIRIRA § 309(c)(4)(G), as referring to felonies not charged at all in the Order to Show Cause." Chowdhury was charged in the Notice to Appear as being deportable because he was convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(D) based on his money laundering conviction. He did not have the benefit of a hearing before the IJ or the BIA on the...