U.S. v. Nicholas-Armenta
Decision Date | 20 June 1985 |
Docket Number | No. 84-5151,D,NICHOLAS-ARMENT,84-5151 |
Citation | 763 F.2d 1089 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Humbertoefendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
David Nimmer, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
John P. Gyorgy, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN, SNEED and SKOPIL, Circuit Judges.
Humberto Nicholas-Armenta appeals his conviction for entering the United States after deportation in violation of 8 U.S.C. Sec. 1326. Having no other defense, he collaterally attacks the underlying deportation, contending that he was denied due process on the occasion of the particular deportation cited in the indictment. We affirm.
Nicholas-Armenta was deported immediately after a deportation hearing in August 1981 and apparently reentered the United States in October 1981. On May 1, 1984, he was convicted of entering the United States after deportation in violation of 8 U.S.C. Sec. 1326. 1
The district court found that Nicholas-Armenta had waived his right to an individual deportation hearing and that he had suffered no prejudice by not being afforded such a hearing. On appeal, Nicholas-Armenta asserts that a 33-person deportation hearing violates due process as a matter of law. His argument is based on this court's opinion in United States v. Calles-Pineda, 627 F.2d 976, 977 (9th Cir.1980).
This circuit allows an alien charged with illegal reentry after deportation in violation of 8 U.S.C. Sec. 1326 to challenge collaterally in the criminal case the legality of the deportation. United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir.1980); United States v. Calderon-Medina, 591 F.2d 529, 530 (9th Cir.1979); United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.1978). The government contends that the Supreme Court's decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), requires this circuit to change its position on collateral attacks. This is a question we have declined to reach before. United States v. Alderete-Deras, 743 F.2d 645, 648 n. 2 (9th Cir.1984).
In Lewis the Court held that a felony conviction could not be challenged collaterally in a later prosecution under 18 U.S.C.App. Sec. 1202(a)(1), which prohibits a convicted felon from possessing a firearm. Id. 445 U.S. at 65, 100 S.Ct. at 920. The Lewis case does not affect this circuit's longstanding rule that legal deportation is an element of Sec. 1326. See United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir.1975). The Lewis holding is limited to the interpretation of a specific statute--Sec. 1201 (a)(1) of the Omnibus Crime Control and Safe Streets Act of 1968. It was the Court's analysis of the particular statutory provisions of that Act that led it to preclude collateral attacks in felon-firearm possession cases. Lewis, 445 U.S. at 60-64, 100 S.Ct. at 918-920. See also Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 990-991, 74 L.Ed.2d 845 (1983) ( ).
The Supreme Court's opinion in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), decided after Lewis, also suggests that the Lewis holding is limited to Sec. 1202(a)(1) prosecutions and does not preclude attacks predicated in other contexts. In Baldasar the Court held that a defendant can collaterally attack a misdemeanor conviction used to convert a subsequent misdemeanor into a felony. Id. at 223-24, 100 S.Ct. at 1585-1586.
There is a strong argument for continuing to allow collateral attacks on deportation orders that form the basis of a criminal conviction. Criminal convictions are the result of a proceeding with all the constitutional safeguards. Respondents in a civil deportation hearing, however, are not entitled to the same constitutional rights afforded a criminal defendant. See, e.g., INS v. Lopez-Mendoza, --- U.S. ----, 104 S.Ct. 3479, 3490, 82 L.Ed.2d 778 (1984) ( ); Ramirez v. INS, 550 F.2d 560, 563 (9th Cir.1977) ( ); Trias-Hernandez v. INS, 528 F.2d 366, 368-69 (9th Cir.1975) ( ); Bilokumsky v. Tod, 263 U.S. 149, 154, 44 S.Ct. 54, 56, 68 L.Ed. 221 (1923) ( ). Therefore, before imposing a Sec. 1326 felony conviction which carries a prison sentence, the district court should be able to review the legality of an underlying deportation order obtained without the benefit of the same constitutional protection that is extended to criminal defendants. Lewis does not preclude collateral attacks in this context.
Although deportation proceedings do not require a full panoply of constitutional safeguards, they must conform to due process. Aliens are entitled to a full and fair hearing before being deported. Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982); Ramirez, 550 F.2d at 563.
In Calles-Pineda, 627 F.2d 976, the defendant challenged the deportation proceedings underlying his Sec. 1326 indictment on grounds that they involved as many as 29 respondents in mass hearings. This court upheld that conviction, but stated:
We agree that mass deportation hearings must have an outer limit. That limit has been reached in these cases. We would not expect a panel of this court to approve mass hearings any larger than those conducted in these cases. We are unwilling, however, to draw the line to exclude these cases without prior warning and in the absence of any suggestion by Calles-Pineda that he was prejudiced in fact by the procedures employed.
The holding of Calles-Pineda was a continuation of the rule that due process challenges require a showing of prejudice. See United States v. Barraza-Leon, 575 F.2d at 220-21 ( ). The "outer limits" language in Calles-Pineda was a valid expression of concern that the Immigration Service's practice of "processing" large...
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