U.S. v. Mendoza-Lopez
| Decision Date | 25 October 1993 |
| Docket Number | MENDOZA-LOPE,No. 93-2032,D,93-2032 |
| Citation | 7 F.3d 1483 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Luisefendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.
Louis E. Valencia, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellee.
Before McKAY, Chief Judge, GOODWIN * and SEYMOUR, Circuit Judges.
Defendant-Appellant Jose Luis Mendoza-Lopez appeals his conviction under 8 U.S.C. § 1326(b)(1) for re-entering the United States after having been deported.
In May 1986, a California court convicted Mr. Mendoza of possession of narcotics and sentenced him to a prison term, at the end of which he was paroled into custody of the Immigration and Naturalization Service. A deportation hearing took place on February 27, 1987, resulting in Mr. Mendoza's deportation. Mr. Mendoza immediately returned to the United States and was re-arrested soon thereafter for a parole violation. Another deportation hearing ensued on August 7, 1987, resulting in Mr. Mendoza's second deportation. Again, he immediately returned to the United States. In June 1992, he was arrested on the current charge of re-entry after deportation.
Mr. Mendoza has apparently been a legal permanent resident of the United States since his arrival in this country at the age of eight months. He received an alien registration card when he was fourteen. Despite his legal status, and apparently in reliance upon the advice of other detainees, Mr. Mendoza deliberately concealed this important information from the Immigration Law Judge at each deportation hearing. At each hearing, the ILJ specifically informed Mr. Mendoza individually and as part of the group of the need to disclose any defense to the deportation proceedings, including the existence of any immigration papers, or any belief that he had a legal right to be in the United States. In response to the ILJ's questions on these points, Mr. Mendoza replied both individually and as a member of the group that he had never received any immigration papers and had no legal right to be in the United States. Mr. Mendoza further stated, again untruthfully, that the only family he had in the United States were some cousins. At trial, Mr. Mendoza testified that these misstatements were the result of his desire to be quickly deported so that he would be released from the allegedly "horrible" conditions at the detention center as quickly as possible.
The ILJ also clearly informed the detainees at each hearing of their right to appeal if they thought that his decision was incorrect, and told them that he would assist them in filing the appropriate paperwork to do so. The ILJ indicated that any appeal would not be immediate, and that any detainee would be able to stay at the detention center pending the appeal. The ILJ requested anyone who wished to appeal to stand; nobody did.
On appeal, Mr. Mendoza raises two constitutional claims attacking the validity of the deportation hearings. Mr. Mendoza argues that the two deportation hearings violated his constitutional right to due process because the ILJ failed to inform him of his apparent eligibility for a waiver of deportation under 8 U.S.C. § 1182(c). Mr. Mendoza also argues that his waiver of his right to appeal the ILJ's decision was not knowing and voluntary. 1 Mr. Mendoza thus argues that neither deportation can form the basis for his conviction under § 1326.
A collateral attack on the constitutionality of deportation proceedings underlying a conviction under § 1326 is a mixed question of law and fact which we review de novo. United States v. Valdez, 917 F.2d 466, 468 (10th Cir.1990). We have previously noted that the circuits are split over what a defendant seeking to overturn a conviction under § 1326 must show; some require a showing of either fundamental unfairness in the deportation proceeding or a lack of judicial review, while others require the defendant to show both. See id., 917 F.2d at 469. As in Valdez, we conclude that Mr. Mendoza's claims must fail under either standard.
To establish fundamental unfairness sufficient to constitute a violation of due process, Mr. Mendoza must show that he suffered prejudice from the alleged unfairness. Michelson v. INS, 897 F.2d 465, 468 (10th Cir.1990). Mr. Mendoza predicates his claim of fundamental unfairness upon his insistence that the INS had an affirmative duty to search its files for any information pertaining to Mr. Mendoza's potential eligibility for a waiver of deportation and to report that information to the ILJ presiding at the deportation hearing. 2
The ILJ's duty to inform an alien of his apparent eligibility for discretionary relief from deportation is triggered only after the alien has provided information sufficient to support such a duty. The ILJ is not required to engage in hypothesizing as to what theories, if any, might be available to find an alien eligible for discretionary relief. Id. at 468. Moreover, the ILJ repeatedly gave Mr. Mendoza the opportunity to notify him of his claim to permanent resident status, which opportunity was dependent upon information unequivocally within Mr. Mendoza's knowledge at the time. Under these circumstances, we cannot hold that the ILJ failed in his duty to inform Mr. Mendoza of his apparent eligibility for relief. Nor can we conclude that Mr. Mendoza was prejudiced by any allegedly improper actions of the INS. Any prejudice Mr. Mendoza may have suffered was the result of his willful misstatements to the ILJ. Accordingly, we hold that Mr. Mendoza's claims cannot be upheld under the fundamental unfairness standard.
Nor can we conclude that the ILJ's use of a mass waiver by silence unconstitutionally denied Mr. Mendoza his right to judicial review of the deportation decision. The Ninth Circuit has found such waivers to violate due process where they "made it impossible to determine whether [the defendant] made a voluntary and intelligent decision" to waive his right to appeal. United States v. Lopez-Vasquez, 985 F.2d 1017, 1020 (9th Cir.1993), as amended, 1 F.3d 751 (1993).
In this case, we hold that it is not impossible to determine whether the waiver was intelligently and voluntarily made. We conclude that Mr. Mendoza's decision to waive his right to appeal was the voluntary and intelligent result of his asserted desire to be released from the detention center as soon as possible. Accordingly, we hold that the deportation proceeding did not improperly deny Mr. Mendoza his right to judicial review of the deportation order.
Finally, Mr. Mendoza urges this court to remand...
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