U.S. v. Mendoza-Lopez, MENDOZA-LOPE

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 781 F.2d 111
• Docket Number: Nos. 85-1436,MENDOZA-LOPE,85-1437,LANDEROS-QUINONE,A,s. 85-1436
• Parties: UNITED STATES of America, Appellant, v. Joseppellee. UNITED STATES of America, Appellant, v. Angelppellee.
• Decision Date: 18 March 1986

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781 F.2d 111 UNITED STATES of America, Appellant,
v.
Jose MENDOZA-LOPEZ, Appellee.
UNITED STATES of America, Appellant,
v.
Angel LANDEROS-QUINONES, Appellee. Nos. 85-1436, 85-1437. United States Court of Appeals,
Eighth Circuit. Submitted Sept. 11, 1985.
Decided Dec. 31, 1985.
Rehearing and Rehearing En Banc Denied March 18, 1986.

Paul D. Boeshart, Lincoln, Neb., for appellant.

Kathy Goudy, Lincoln, Neb., for appellee.

Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

The United States appeals from the dismissal of the indictments against two illegal immigrants in this 8 U.S.C. Sec. 1326 proceeding. For the reasons set forth below, we affirm.

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BACKGROUND

Jose Mendoza-Lopez and Angel Landeros-Quinones were illegal immigrants from Mexico. They lived in the United States for more than seven years when they were picked up by agents of the Immigration and Naturalization Service in Nebraska. After a hearing at which they were not represented by counsel, they were deported. Six weeks after deportation, they were arrested in Lincoln, Nebraska, on charges of re-entry without authorization under 8 U.S.C. Sec. 1326.

At trial, defendants moved to suppress evidence of their deportation. The government argued that the motion amounted to an impermissible collateral attack on deportation orders, and that, nevertheless, the defendants' constitutional rights had not been violated. The district court concluded that defendants could attack the deportation procedure and that the lack of legal counsel at the deportation hearing, combined with the defendants' inability to understand the proceedings, violated the concept of fundamental fairness. The unlawful presence charges were dismissed. On appeal, the government argues that the trial court erred by permitting the defendants to collaterally attack their deportation orders and, in any event, that the defendants were afforded due process at the deportation hearing.

DISCUSSION

The Supreme Court has expressly reserved the question of whether a defendant can collaterally attack a deportation order. United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863 (1952). ¹ The United States Circuit Courts which have addressed this issue are split. The more restrictive view is found in the Tenth, Fifth and Second Circuits. See Arriaga-Ramirez v. United States, 325 F.2d 857 (10th Cir.1963); United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir.1971); United States v. Petrella, 707 F.2d 64 (2d Cir.1983). These Courts reason that since Congress has provided three separate avenues for appeals of administrative deportation findings, see 8 U.S.C. Sec. 1105a, it intended to foreclose the possibility of collateral attack on such orders in section 1326 prosecutions. The Ninth, Third and Seventh Circuits, on the other hand, permit collateral attackes on deportation orders. See United States v. Bowles, 331 F.2d 742 (3rd Cir.1964); United States v. Gasca-Kraft, 522 F.2d 149 (9th Cir.1975); United States v. Rosal-Aguilar, 652 F.2d 721 (7th Cir.1981). These Courts reason that a material element of the offense prohibited by 8 U.S.C. Sec. 1326 is a "lawful" deportation and that, therefore, when prosecuting a section 1326 proceeding, the government must prove beyond a reasonable doubt that the defendant illegally entered the United States after being deported according to law. Gasca-Kraft, 522 F.2d at 152. Under this reasoning, the defendant must be able to contest the lawfulness of the deportation in the section 1326 proceeding. We agree with this rationale. Allowing a pretrial review of the underlying deportation to examine whether due process was provided insures fundamental fairness to the rights of the criminal defendant. Accordingly, we conclude that defendants in section 1326 prosecutions may collaterally attack their previous deportation orders on the ground

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that they were not accorded due process at the deportation hearing.

The next question is whether the district court erred in finding a due process violation. Our review of the record reveals that the district court's conclusion is not clearly erroneous.

Both defendants had been continuously present in the United States for a period exceeding seven years at the time of the deportation hearing. They were therefore eligible for suspension of deportation. The Immigration Law Judge (ILJ) did not adequately inform the defendants about this alternative relief, as is required by 8 C.F.R. Sec. 242.17(2). The defendants did not understand the consequences of the choices that they were forced to make. Had they been fully aware of such consequences, there is a substantial likelihood that the result of the hearing would have been "materially affected." Therefore, the defendants demonstrated prejudice from the ILJ's failure to fully comply with the provisions of 8 C.F.R. Sec. 242.17. Because the defendants did not fully understand the proceedings, the hearing was fundamentally...