U.S. v. Luna, 05-1122.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation436 F.3d 312
Docket NumberNo. 05-1122.,05-1122.
PartiesUNITED STATES of America, Appellee, v. Dagoberto LUNA, Defendant, Appellant.
Decision Date09 February 2006

Edward C. Roy, Assistant Federal Public Defender, for appellant.

Robert Clark Corrente, United States Attorney, with whom Donald C. Lockhart and Luis M. Matos, Assistant United

States Attorneys, were on brief, for appellee.

Before LIPEZ, Circuit Judge, COFFIN, Senior Circuit Judge, and CARTER,* Senior District Judge.

LIPEZ, Circuit Judge.

This case requires us to analyze the statutory provision (8 U.S.C. § 1326(d)) that defines the circumstances under which a defendant charged with illegally reentering the United States after deportation may collaterally attack the validity of the removal order.1 The defendant, Dagoberto Luna, appeals from the district court's denial of his motion to dismiss his indictment for illegal reentry. The district court held that the defendant did not meet the requirements of § 1326(d). We affirm.


A. Luna's Background and Deportation Proceedings

Luna, a citizen of the Dominican Republic, entered the United States as a 5-day-old lawful permanent resident in 1973. His immediate family members, including his mother, father, and siblings, all live in the United States. Luna spent most of his childhood in Rhode Island, where he attended school until the 9th grade. Since that time, he has lived in New York and Rhode Island.

On April 9, 1993, at age 20, Luna was ordered deported after he was convicted in state court of third degree grand larceny. He returned to the United States at some point thereafter. On January 22, 1996, Luna pled guilty in state court to second degree assault. He was sentenced to three to six years imprisonment. While he was serving his sentence, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause charging that Luna was deportable on several grounds, including his assault conviction and his previous deportation order and reentry. Given "serious problems" regarding the validity of the previous deportation order,2 the Immigration Judge ("IJ") found that Luna was deportable on the sole ground of being an alien convicted of an aggravated felony, see Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (formerly INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251 (redesignated 1996)), based on his second degree assault conviction.

During his hearing before the IJ, Luna applied for discretionary relief, requesting a waiver of deportation under former INA § 212(c). 8 U.S.C. § 1182(c) (repealed 1996).3 The IJ did not consider the merits of Luna's application for relief, stating in his oral decision that "the respondent is statutorily barred from this and any other forms of relief from deportation" under the Attorney General's decision in In re Soriano, 21 I. & N. Dec. 516, 1996 WL 426888 (BIA 1996, A.G.1997).4

In Soriano, the Attorney General determined that recent statutory amendments to the INA prevented all individuals with "aggravated felony" convictions in removal proceedings from obtaining discretionary relief from deportation. See id. at 533-40, 1996 WL 426888; see also Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in various titles); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996) (codified in various titles).5 Although Luna pled guilty to second degree assault before the relevant provisions of AEDPA and IIRIRA went into effect, the IJ concluded that, under Soriano, Luna could not apply for discretionary relief.

Luna, who was represented by a non-lawyer "accredited representative,"6 appealed the IJ decision to the Board of Immigration Appeals ("BIA"). On June 10, 1998, the BIA affirmed, also relying on Soriano, telling Luna that he was "statutorily ineligible for [§ 212(c)] relief." Luna did not appeal the agency's decision in federal court. On November 8, 1999, he was deported for a second time.

B. St. Cyr and Eligibility for INA § 212(c) Relief

In 2001, the Supreme Court corrected the Attorney General's misapplication of law. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The Supreme Court emphasized that "the class of aliens whose continued residence in this country has depended on their eligibility for § 212(c) relief is extremely large," and that the retroactive repeal of such relief "would surely be contrary to familiar considerations of fair notice, reasonable reliance, and settled expectations." Id. at 295-96, 323, 121 S.Ct. 2271 (citations and internal quotation marks omitted). The Court concluded that the repeal of § 212(c) relief did not apply retroactively to individuals who had pled guilty to a criminal charge prior to the effective date of the repeal. Id. at 326, 121 S.Ct. 2271.

After St. Cyr was decided, the government changed its position on the availability of § 212(c) relief for individuals who pled guilty or nolo contendere to crimes before the effective date of AEDPA and IRRIRA. In 2004, the government implemented procedures for immigrants to reopen their removal cases in light of St. Cyr. See 8 C.F.R. § 1003.44. However, the procedures were not available for immigrants who had already "departed" the country. See 8 C.F.R. § 1003.44(k).

C. Luna's Indictment for Reentry and the District Court Decision

At some point after his second deportation, Luna reentered the United States. On November 21, 2003, Luna was indicted for illegally reentering the United States without the express permission of the Attorney General, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He filed a motion to dismiss the indictment, pursuant to 8 U.S.C. § 1326(d),7 arguing that his deportation was fundamentally unfair and thus could not serve as the basis for his illegal reentry indictment.8

In its Memorandum and Decision of April 13, 2004 ("April 13 Decision"), the district court denied Luna's motion to dismiss, holding that he failed to establish, as required by 8 U.S.C. § 1326(d)(3), that the IJ's failure to adjudicate his § 212(c) application prejudiced him. Luna filed a motion asking the district court to reconsider. On June 1, 2004, the district court issued a second Memorandum and Decision ("June 1 Decision") again denying the motion to dismiss. The court held that, in addition to Luna's failure to demonstrate prejudice, Luna also failed to establish the requirement under 8 U.S.C. § 1326(d)(2) that his underlying deportation proceedings improperly deprived him of judicial review. Luna appealed.


The underlying facts are not in dispute, and we review the district court's legal conclusions de novo. See United States v. Loaisiga, 104 F.3d 484, 486 (1st Cir.1997) (applying de novo standard of review to district court's decision to grant motion to dismiss an indictment for illegal reentry under a prior version of 8 U.S.C. § 1326).

The government argues that we should review the district court's prejudice determination for clear error. While we review factual findings under a clear error standard, the prejudice analysis in this case involves the application of law to undisputed facts and is part of an inquiry to determine whether the defendant has established the fundamental unfairness of his deportation hearing. Under these circumstances, we agree with our sister circuits that a district court's determination of whether a defendant has established prejudice pursuant to 8 U.S.C. § 1326(d)(3) is subject to de novo review. See United States v. Scott, 394 F.3d 111, 116-17 (2d Cir.2005) (applying de novo review to district court's determination of whether defendant has established prejudice under 8 U.S.C. § 1326(d)(3)); United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir.2004) (en banc) (same); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004) (same).

A. Mendoza-Lopez and 8 U.S.C. § 1326

Under 8 U.S.C. § 1326(a), it is a crime for an individual who has been deported, removed, excluded, or denied admission to enter the United States unless he or she has the prior approval of the Attorney General or shows that no such approval was needed. Section 1326(b) specifies enhanced penalties for illegal reentry based on the person's criminal history.

In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that a person who is prosecuted for illegal reentry based on a previous order of deportation must have meaningful review of the validity of his or her deportation order. The defendants in Mendoza-Lopez, having been indicted for illegally reentering the United States, argued that their previous deportation proceedings were fundamentally unfair because the IJ had failed to inform them adequately of their eligibility for "suspension of deportation," a form of discretionary relief. See id. at 831-32, 107 S.Ct. 2148. The Supreme Court concluded that the defendants' motions to dismiss their indictments should be granted because they had been "deprived of their rights to appeal [their removal orders], and of any basis to appeal since the only relief [from deportation] for which they would have been eligible was not adequately explained to them." Id. at 842, 107 S.Ct. 2148. As the Court explained, "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." Id. at 837-38, 107 S.Ct. 2148 (emphasis in original).

Congress essentially codified the Mendoza-Lopez decision as 8 U.S.C. § 1326(d). See United States v. Wilson, 316 F.3d 506, 515 n. 1 (4th Cir.2003) (Motz, J., concurring) (discussing the legislative history of § 1326(d)). Section 1326(d) provides:

In a criminal proceeding under this section, an alien may...

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