U.S. v. De Horta Garcia

• Decision Date: 13 March 2008
• Docket Number: No. 07-2060.,07-2060.
• Citation: 519 F.3d 658
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose DE HORTA GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

519 F.3d 658

UNITED STATES of America, Plaintiff-Appellee, v. Jose DE HORTA GARCIA, Defendant-Appellant.

No. 07-2060.

United States Court of Appeals, Seventh Circuit.

Argued January 29, 2008.

Decided March 13, 2008.

David Reinhard (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

William R. Jones (argued), Jones Law Firm, Madison, WI, for Defendant-Appellant.

Before BAUER, KANNE and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Jose De Horta Garcia, then a permanent resident alien, was deported in 1996 because he had been convicted of a drug trafficking crime. This case involves his second illegal re-entry into the country after deportation. During his first prosecution for illegal re-entry, he challenged the validity of his deportation order on the grounds that he was denied his right to seek a discretionary waiver of deportation under former INA § 212(c), 8 U.S.C. § 1182(c) (1995) (repealed), arguing that the repeal of discretionary waiver should not have been applied to prevent him from applying for the waiver. The District of Alaska rejected his contention and De Horta Garcia did not appeal. He raised the argument again in this prosecution and the district court rejected it based on circuit precedent. We affirm.

Background

De Horta Garcia first came to the United States from Mexico in 1976. He married a United States citizen in 1983 and became a lawful permanent resident. By November 1995, De Horta Garcia had separated from his wife and moved to Alaska where he was arrested in a drug sting. In February 1996, De Horta Garcia waived his speedy trial rights, ALASKA R.CRIM. P. 45, extending the state's time to prosecute him into June 1996. In June 1996 he pleaded guilty to attempted misconduct involving a controlled substance. He appeared, without counsel, at a group deportation hearing in December 1996 and was ordered deported under INA § 212(a)(2)(C); 8 U.S.C. § 1182(a)(2)(C), which at that time made excludable any alien who had been an illicit trafficker of any controlled substance. He was released at the Mexican border the next day.

The timing of De Horta Garcia's guilty plea and deportation were very unfortunate for him. Had he pleaded guilty and appeared at a deportation hearing only a few months earlier, before April 23, 1996, he would have had the right to petition the Attorney General for relief from deportation. See INA § 212(c); 8 U.S.C. § 1182(c) (1995) (repealed); see also INS v. St. Cyr, 533 U.S. 289, 295-96, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). When Congress passed the Antiterrorism and Effective Death Penalty Act, effective April 23, 1996, however, it amended § 212(c) so that it no longer applied to aliens, including De Horta Garcia, made excludable for most controlled substance offenses. See INA § 212(c); 8 U.S.C. §§ 1182(c), 1251(a)(2)(B) (1996). The IJ at De Horta Garcia's deportation hearing apparently concluded that AEDPA's modification of § 212(c) applied to aliens who offended and were arrested before the modification but convicted after it, and so did not tell De Horta Garcia that he had a right to petition the Attorney General for relief from deportation.

About a year after he was deported, De Horta Garcia was discovered in Alaska and charged with illegal re-entry after deportation. See 8 U.S.C. § 1326(a), (b)(2). The District Court for the District of Alaska initially dismissed the indictment, finding that the original deportation rested on an impermissible retroactive application of § 212(c) in violation of the Due Process Clause. On the government's motion for reconsideration, though, the district court reversed itself based on binding Ninth Circuit precedent. De Horta Garcia was ultimately convicted of illegal reentry, and he did not appeal. At the end of his prison term in June 2002, he was deported to Mexico again.

After the district court's initial dismissal of the indictment, De Horta Garcia moved to reopen his original deportation proceedings and stay his deportation order. The IJ denied De Horta Garcia's motion before the district court reconsidered its dismissal. The IJ's ruling was based on BIA precedent, as well as De Horta Garcia's failure to move to reopen within the 90 days allowed by 8 C.F.R. § 3.23. Nothing in the record suggests that De Horta Garcia appealed the IJ's ruling.

After being deported a second time, De Horta Garcia found his way back into the United States once again. This time he was arrested in Wisconsin in September 2006 on retail theft charges. After being referred to federal authorities, he was again indicted for illegal re-entry after deportation, 8 U.S.C. § 1326(a), (b)(2), and again argued that his original deportation was invalid because he was denied the right to petition the Attorney General for discretionary relief from deportation under § 212(c). The district court rejected this argument based on LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998), which concluded that AEDPA's bar against discretionary waivers applied retroactively to aliens, like De Horta Garcia, who offended before its passage, but were convicted after its passage. De Horta Garcia pleaded guilty, but reserved his right to appeal the retroactivity issue.

Analysis

De Horta Garcia begins by conceding, as he must, that the district court properly relied upon LaGuerre and goes on to predict that "in all likelihood," we will not revisit our prior precedent. But counsel for De Horta Garcia makes a hard argument harder by not fully presenting his arguments for reconsidering LaGuerre in his brief. Instead counsel includes in his short appendix the brief he filed in the district court and states in his appellate brief that it is "incorporated herein." We normally refuse to consider such incorporations because "[e]ven when a litigant has unused space ..., incorporation is a pointless imposition on the court's time." DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999).

In the context of a litigant's failure to provide a transcript under Federal Rule of Appellate Procedure 10(b), we have held that where "meaningful review is possible," we may exercise our discretion and rule on the merits. United States v. Santiago-Ochoa, 447 F.3d 1015, 1018-19 (7th Cir.2006). Because meaningful review is possible—but just barely—in this case and because we hesitate to thwart De Horta Garcia's stated objective to challenge our precedent in the Supreme Court, we address the arguments on the merits.

Before analyzing De Horta Garcia's primary argument, though, we must analyze a procedural bar that he cannot overcome under circuit precedent. Section 1326(d) allows a collateral attack of a deportation order only upon a showing that

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). Although De Horta Garcia can arguably meet the first two conditions, we have previously held that an alien in his position cannot meet the third.

To show fundamental unfairness, De Horta Garcia must show, first, a violation of due process, and second, that he was prejudiced by the removal proceedings. See Santiago-Ochoa, 447 F.3d at 1019. If De Horta Garcia truly lost his opportunity to apply for § 212(c) relief that might have been granted, then he might have been able to show that he was prejudiced, i.e., that judicial review "would have yielded him relief from deportation." See United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.1994). But, we have joined the majority of circuits in holding that due process does not encompass a "right to be informed of eligibility for — or to be considered for — discretionary relief." Santiago-Ochoa, 447 F.3d at 1020; but see United States v. Copeland, 376 F.3d 61, 71 (2d Cir.2004) (failure to inform alien of right to discretionary relief can be fundamentally unfair); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049-50 (9th Cir.2004) (same). Thus, under this circuit's precedent, the violation De Horta Garcia contends occurred at his deportation hearing did not make the deportation order "fundamentally unfair," and he may not collaterally attack it in this prosecution. See Santiago-Ochoa, 447 F.3d at 1020.

Finally, even if De Horta Garcia could steer clear of the roadblocks preventing him from collaterally attacking his deportation order, his attack itself is also foreclosed by circuit precedent. In LaGuerre, we explained that the change to § 212(c) would apply retroactively unless it would disturb reasonable expectations. LaGuerre, 164 F.3d at 1041. But we concluded that applying the new law retroactively to aliens like De Horta Garcia would not disturb reasonable expectations because "[i]t would border on the absurd to argue that these aliens might have decided not to commit drug crimes ... had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation." Id. We have held that retroactive application is impermissible because it would disturb reasonable expectations in only two situations: (1) when an alien had conceded deportability before repeal in reliance on the possibility of § 212(c) relief, Reyes-Hernandez v. INS, 89 F.3d 490, 492-93 (7th Cir.1996), and (2) when an alien had pleaded guilty to the underlying offense before repeal partly in reliance on the possibility of relief, Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir.2000). In both cases, we required a showing of specific facts demonstrating actual reliance. Id.; Reyes-Hernandez, 89 F.3d at 492. In St. Cyr, the Supreme Court held that the repeal of § 212(c) did not apply retroactively to any alien who pleaded guilty before its passage, 533 U.S. at 321, 323-24, 121 S.Ct. 2271, but ...