U.S. v. Lopez-Ortiz

• Decision Date: 18 November 2002
• Docket Number: No. 01-21264.,01-21264.
• Citation: 313 F.3d 225
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joel LOPEZ-ORTIZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

313 F.3d 225

UNITED STATES of America, Plaintiff-Appellant, v. Joel LOPEZ-ORTIZ, Defendant-Appellee.

No. 01-21264.

United States Court of Appeals, Fifth Circuit.

November 18, 2002.

COPYRIGHT MATERIAL OMITTED

Howard E. Rose, Sp. Asst. U.S. Atty. (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellant.

Roland E. Dahlin, II, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DUHÉ and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:

The United States appeals the district court's order suppressing Joel Lopez-Ortiz's prior removal and dismissing the indictment against him for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). We hold that the hearing at which Lopez-Ortiz's removal order was issued was not fundamentally unfair. Because, under 8 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), fundamental unfairness is necessary for collateral challenge of a removal order, we REVERSE and remand for trial.

I. BACKGROUND

Joel Lopez-Ortiz is a citizen of Mexico who obtained permanent resident alien status in the United States in 1990. In 1995, Lopez-Ortiz, who previously had been convicted twice of misdemeanor driving while intoxicated (DWI), pleaded guilty to felony possession of cocaine.

After Lopez-Ortiz's cocaine possession plea, Congress changed immigration law with the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Among the changes was abolition of discretionary waiver of removal, formerly available under § 212(c) of the Immigration and Nationality Act ("§ 212(c) relief"), for aliens convicted of aggravated felonies.

In 1998, Lopez-Ortiz was arrested for felony third-offense DWI. Before the felony DWI could be adjudicated, the INS discovered Lopez-Ortiz in the Tarrant County Jail. Lopez-Ortiz was served with a Notice to Appear, the INS having determined based on the 1995 cocaine conviction that he was removable as an aggravated felon.

At the removal hearing, the Immigration Judge advised Lopez-Ortiz to obtain counsel. Lopez-Ortiz waived counsel, admitted the factual allegations in the Notice to Appear, and conceded that he was removable as an aggravated felon. Neither the Immigration Judge nor anyone at the INS told Lopez-Ortiz that he was eligible to apply for § 212(c) relief. The Immigration Judge told Lopez-Ortiz that he had the right to appeal, but that he would have to remain in detention pending appeal and pay for an attorney. When Lopez-Ortiz asked if an appeal would enable him to get his green card back, the Immigration Judge answered that such an outcome was unlikely. Lopez-Ortiz waived administrative appeal and was deported.

Lopez-Ortiz reentered the United States and was convicted of the felony DWI in 2000. He was discovered by the INS while serving his sentence, and this prosecution for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2) followed.¹ Lopez-Ortiz moved for suppression of his prior removal, an essential element of the illegal reentry offense, arguing that his removal hearing failed to afford due process. His due process challenge was based on the Immigration Judge's failure to inform him of the possibility of § 212(c) relief as well as the judge's advice that Lopez-Ortiz had the right to appeal but would likely be unsuccessful.²

The district court granted Lopez-Ortiz's motion to suppress the removal order and dismissed the indictment. The United States filed this expedited appeal.

II. STANDARD OF REVIEW

When considering the district court's ruling on a motion to suppress, we review conclusions of law de novo and findings of fact for clear error. United States v. Hernandez, 279 F.3d 302, 306 (5th Cir.2002). We view the evidence in a light most favorable to the party who prevailed in the district court. Id. at 306.

III. COLLATERAL CHALLENGE OF THE PRIOR REMOVAL

Lopez-Ortiz's motion to suppress is a collateral challenge governed by 8 U.S.C. § 1326(d) and the Supreme Court's decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). See, e.g., United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59, (5th Cir.1999). In Mendoza-Lopez, the district court dismissed indictments against defendants charged with illegal reentry under 8 U.S.C. § 1326. The Immigration Judge who presided over the defendants' deportation hearing had not explained adequately their eligibility to apply for suspension from deportation and had accepted their unconsidered waivers of appeal.³ The district court held, and the Eighth Circuit affirmed, that the deportation hearing violated due process. The United States appealed, arguing that collateral review of a final deportation order was neither authorized by 8 U.S.C. § 1326 nor required by the Constitution. The United States did not seek, and the Supreme Court did not provide, review of the conclusion that the deportation hearing was fundamentally unfair.⁴ The Court held that due process requires collateral review of deportation orders used in § 1326 prosecutions, explaining that "where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Id. at 2155.

Following Mendoza-Lopez, this court developed a three-part test for challenge of a prior removal to be used in a § 1326 prosecution. Our interpretation of Mendoza-Lopez required an alien challenging a prior removal to establish that (1) the removal hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice. See United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir.2000). This interpretation of Mendoza-Lopez effectively was codified. See Lopez-Vasquez, 227 F.3d 476, 484, in 8 U.S.C. § 1326(d), which provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in section (a)(1) or subsection (b) of this section unless the alien demonstrates that:

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

(2) the deportation proceeding 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.

In asserting that the district court was correct to suppress his prior removal, Lopez-Ortiz emphasizes the similarities between his removal hearing and the one at issue in Mendoza-Lopez. Mendoza-Lopez is instructive on the issue whether Lopez-Ortiz was deprived of judicial review. Mendoza-Lopez, 107 S.Ct. at 2156. However, deprivation of judicial review is only one element of the collateral attack. See Lopez-Vasquez, 227 F.3d 476; United States v. Palacios-Martinez, 845 F.2d 89, 91 (5th Cir.1988)(explaining that Mendoza-Lopez "established the second requirement which is that a collateral attack on a deportation hearing should be allowed if, in addition to being fundamentally unfair, the hearing effectively eliminated the right of the alien to challenge the hearing by means of review of the deportation order"); 8 U.S.C. 1326(d). We still must determine whether Lopez-Ortiz's hearing was fundamentally unfair.⁵

Lopez-Ortiz asserts that the Immigration Judge's failure to inform him of the possibility of § 212(c) relief rendered his removal hearing fundamentally unfair. At the time of Lopez-Ortiz's hearing, the Board of Immigration Appeals had decided that the abolition of § 212(c) relief was applicable to aliens, such as Lopez-Ortiz, who had been convicted of aggravated felonies and whose removal proceedings commenced after the effective date of IIRIRA. In Re Soriano, 21 I. & N. Dec 516, 519, 1996 WL 426888 (1996).⁶ After In Re Soriano, Immigration Judges conducted removal proceedings with the understanding that aliens with aggravated felony convictions were ineligible for § 212(c) relief. Thus, it is no surprise that Lopez-Ortiz was not told about § 212(c) relief during his removal proceeding.

In 2001, three years after Lopez-Ortiz's removal was final, 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 section 212(c) relief at the time of their plea under the law then in effect." INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001). Thus, contrary to the understanding of the INS and the Immigration Judge who conducted his hearing, Lopez-Ortiz was eligible for § 212(c) relief.

The government argues that St. Cyr should not affect our evaluation of Lopez-Ortiz's removal hearing because the Supreme Court has held that new rules of civil law do not apply retroactively to cases not on direct review. Harper v. Virginia Department of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). The government's error is in its view of St. Cyr as announcing a new rule. St. Cyr was a case of statutory interpretation. 121 S.Ct. at 2278. As such, its holding did not change the law. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Rather, St. Cyr "finally decided what [IIRIRA] had always meant and explained why the [BIA and the] Courts of Appeals had misinterpreted the will of the enacting Congress." 511 U.S. at 313 n. 12, 114 S.Ct. 1510 (emphasis in original). Therefore, St. Cyr established Lopez-Ortiz's eligibility for § 212(c) relief at...