U.S. v. Lopez-Vasquez

Citation227 F.3d 476
Decision Date15 September 2000
Docket NumberLOPEZ-VASQUEZ,No. 99-50918,99-50918
Parties(5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN MANUEL, also known as Carlos Gonzalez-Gonzalez, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Appeal from the United States District Court for the Western District of Texas

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

IT IS ORDERED that the petition for rehearing is overruled and the opinion previously issued herein August 16, 2000 is withdrawn in its entirety and the following is substituted therefore.

Defendant-appellant Juan Manuel Lopez-Vasquez (Lopez-Vasquez) appeals his conviction of one count of illegally entering the United States, after having been previously excluded, deported or removed therefrom, without having obtained the Attorney General's consent, in violation of 8 U.S.C. § 1326. He challenges the denial of his motion to dismiss the indictment or to suppress the evidence of his previous removal from the United States. Concluding that the district court properly denied Lopez-Vasquez's motion, we affirm.

Facts and Proceedings Below

On June 6, 1998, Lopez-Vasquez attempted to cross the border from Mexico into the United States at the Paso del Norte Port of Entry in El Paso, Texas, by declaring himself to be a United States citizen. When he was unable to supply proof of United States citizenship, Lopez-Vasquez was referred to a secondary inspection area for further interview. There, Lopez-Vasquez admitted to the Immigration and Naturalization Service (INS) inspectors that he was not a United States citizen, but rather, a Mexican citizen. The INS inspectors determined Lopez-Vasquez to be ineligible for admission into the United States and, pursuant to 8 U.S.C. § 1225(b)(1)(A)(i)1, placed him in "expedited removal proceedings" and ordered him removed2 from the United States that day. Accordingly, Lopez-Vasquez was never admitted into the United States. Before Lopez-Vasquez's departure from the secondary inspection area, the INS inspectors provided him with a form stating that: (1) he was ineligible for admission to the Unit ed States because he had made a false claim of United States citizenship; (2) he was prohibited from thereafter entering or attempting to enter the United States for a period of five years without first obtaining the consent of the Attorney General to reapply for admission; and (3) 8 U.S.C. § 1326 makes it a crime punishable by a fine and/or imprisonment for a period of up to twenty years for him to thereafter enter, attempt to enter, or be found in the United States without such consent.

On December 13, 1998, Lopez-Vasquez was found in El Paso, Texas by United States Border Patrol agents. The agents arrested Lopez-Vasquez when he could not provide documentation authorizing him to be present in the United States. It was later discovered that Lopez-Vasquez had previously been ordered removed from the United States and had not received the Attorney General's consent to re-apply for admission into the United States, and he was indicted for illegally entering the United States, in violation of 8 U.S.C. § 1326. Before trial, Lopez-Vasquez moved to dismiss the indictment or to suppress evidence of his June 1998 exclusion and removal, based on his assertion that, because the procedures used to remove him violated due process and were not subject to judicial review, his June 1998 removal order may not be used as evidence against him in his criminal prosecution for illegal entry. In addition, Lopez-Vasquez contended that if he had been afforded due process, he could have avoided removal because he would have been informed that he could have applied for voluntary departure under 8 U.S.C. § 1229c3 or withdrawn his application for admission under 8 U.S.C. § 1225(a)(4)4. Lopez-Vasquez, however, has never claimed that the INS erred in finding him inadmissible for having falsely claimed to be a United States citizen in attempting to enter the United States on June 6, 1998.

The district court denied Lopez-Vasquez's motion to dismiss or to suppress, noting that in order to successfully challenge the use of his June 1998 removal order in his section 1326 illegal entry prosecution, Lopez-Vasquez must establish both that his removal was not subject to judicial review and that it was fundamentally unfair in a manner that caused him prejudice. In denying Lopez-Vasquez's motion, the district court focused on Lopez-Vasquez's failure to prove prejudice. With regard to Lopez-Vasquez's claim that he could have applied for voluntary departure, the district court found no prejudice because the Government had established that Lopez-Vasquez would not have been allowed to depart voluntarily because he had previously been granted a voluntary departure on March 29, 1997. See 8 U.S.C. § 1229c(c)5. As to Lopez-Vasquez's assertion that he could have withdrawn his application for admission, thereby avoiding removal, the district court likewise held there was no prejudice, finding that this relief was purely discretionary and that, under applicable INS policies, Lopez-Vasquez would not have been granted such relief because he had previously been convicted of a criminal offense-unauthorized use of a vehicle6. Based on these conclusions, the district court determined that because Lopez-Vasquez could not establish any prejudice that resulted from the procedures used to remove him, he could not show that his removal was fundamentally unfair. Therefore, the district court ruled that Lopez-Vasquez's June 1998 removal order could serve as an element of his prosecution for illegal entry under 8 U.S.C. § 1326.

Lopez-Vasquez then moved for reconsideration of the denial of his motion, asserting that the case law did not require him to prove that he probably suffered prejudice, instead claiming only a showing of the possibility prejudice was necessary. He also contended that in June 1998 he was entitled to a future visa based on his having an immediate relative, his father, who was a lawful permanent resident of the United States7, and therefore would not have been removed if the removal procedures were not so lacking in procedural fairness. Moreover, he maintained that his prior conviction for unauthorized use of a vehicle was not an aggravated felony or a crime of violence and thus did not disqualify him from either withdrawing his application for admission or receiving relief based on his entitlement to a visa. In response, the Government contended that Lopez-Vasquez was not eligible for a visa and, even if he had obtained one, his status as an aggravated felon, based on his conviction of unauthorized use of a vehicle8, would have precluded his entry under it. The district court carried Lopez-Vasquez's motion for reconsideration to trial.

Lopez-Vasquez waived his right to a jury trial and stipulated to the following facts: (1) he was an alien; (2) he was removed from the United States in an INS administrative proceeding on June 6, 1998; (3) he was found in the United States on or about December 13, 1998; and (4) he had not received the Attorney General's consent to reapply for admission into the United States since his June 1998 removal and prior to his having been found in the United States on or about December 13, 1998. After a bench trial, the district court denied Lopez-Vasquez's motion for reconsideration of his motion to dismiss and/or to suppress and found him guilty of the offense of illegal entry contrary to section 1326. The district court sentenced Lopez-Vasquez to ten months' imprisonment and two years' non-reporting supervised release. Lopez-Vasquez timely appealed to this Court.

Discussion

Lopez-Vasquez contends that the district court erred in denying his motion to dismiss or to suppress. Lopez-Vasquez asserts that the removal procedures did not provide for judicial review of his removal and, in fact, 8 U.S.C. § 1225(b)(1)(D)9 strips the district court and this Court of jurisdiction to consider whether his removal violated due process and caused him prejudice. Lopez-Vasquez argues that this complete lack of judicial review, including any to determine whether there was prejudice, makes it unconstitutional to permit his June 1998 removal to be used as an element of his instant conviction for violating 8 U.S.C. § 132610. We review Lopez-Vasquez's constitutional challenge de novo. See United States v. Sierra-Hernandez, 192 F.3d 501, 503 (5th Cir. 1999), cert. denied, 120 S.Ct. 1213 (2000).11

Lopez-Vasquez principally relies on the Supreme Court's decision in United States v. Mendoza-Lopez, 107 S.Ct. 2148 (1987). In Mendoza-Lopez, the Court considered the use of prior deportation orders in the criminal prosecution of two aliens for illegal reentry, in violation of 8 U.S.C. § 1326. See id. at 2150-51. Before the district court, the defendants moved to dismiss the indictment against them on the basis that their prior deportation hearing12 was rendered fundamentally unfair by the immigration judge's inadequately informing them of their right to counsel at the hearing and accepting their unknowing waivers of their right to apply for suspension of deportation. See id. at 2151. The district court agreed and dismissed the indictments concluding that the defendants' lack of understanding of their rights to apply for suspension of deportation or their rights to appeal their deportation orders rendered their prior deportation proceeding fundamentally unfair. See id. at 2152. The Court of Appeals affirmed, determining first that a defendant prosecuted under section 1326 could collaterally attack a prior deportation order and second that these defendants' deportation hearings were fundamentally unfair and, thus, the resulting deportation orders could not form the basis of the section 1326 charges...

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