U.S. v. Rivera-Nevarez

• Decision Date: 05 August 2005
• Docket Number: No. 04-3164.,04-3164.
• Citation: 418 F.3d 1104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Claro RIVERA-NEVAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

418 F.3d 1104

UNITED STATES of America, Plaintiff-Appellee, v. Claro RIVERA-NEVAREZ, Defendant-Appellant.

No. 04-3164.

United States Court of Appeals, Tenth Circuit.

August 5, 2005.

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, Kansas, for Defendant-Appellant.

Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United States Attorney, Brent I. Anderson, Assistant United States Attorney, on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Claro Rivera-Nevarez was charged in United States District Court for the District of Kansas with illegal reentry into the United States after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1). Rivera-Nevarez moved to dismiss the indictment on the ground that subsequent Board of Immigration Appeals ("BIA") and Tenth Circuit precedent rendered invalid the 1999 removal order on which the illegal reentry charge was based. The district court denied the motion, and Rivera-Nevarez then pleaded guilty with a reservation of his right to appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Because Rivera-Nevarez fails to demonstrate that he fulfills the prerequisites for a collateral challenge to his 1999 removal order, this court affirms his conviction for illegal reentry.

II. BACKGROUND

Rivera-Nevarez, a citizen of Mexico, was convicted of felony driving under the influence ("DUI") in Texas in 1997. As a direct result, he was removed from the United States in February 1999.¹ At that time the BIA classified DUI as a "crime of violence" under 18 U.S.C. § 16, and therefore an "aggravated felony" mandating removal under the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). See In re Magallanes-Garcia, 22 I. & N. Dec. 1, 5, 1998 WL 133301 (BIA 1998).² On October 9, 2003, Rivera-Nevarez was found and arrested in Kansas without having sought or obtained permission to reapply for admission into the United States.

Charged with unlawful reentry into the United States after removal under 8 U.S.C. § 1326(a) and (b)(1), Rivera-Nevarez moved to dismiss the indictment. He argued that subsequent interpretations by the Tenth Circuit in United States v. Lucio-Lucio, 347 F.3d 1202, 1204-06 (10th Cir.2003), and the BIA in In Re Ramos, 23 I. & N. Dec. 336, 347, 2002 WL 1001049 (BIA 2002) (en banc), established that drunk driving was not a "crime of violence" or "aggravated felony" under the INA, and that his 1999 removal on that basis was therefore invalid. The district court denied the motion, writing that "[r]etroactivity of judicial rulings is a complicated subject which defendant has not addressed in any fashion." The court concluded that Rivera-Nevarez's "deportation was valid under then-existing law as interpreted by the Board of Immigration Appeals and . . . the Tenth Circuit."³

In his motion for reconsideration of that ruling, Rivera-Nevarez argued that under the Supreme Court's holding in United States v. Mendoza-Lopez a defendant being criminally prosecuted under 8 U.S.C. § 1326 could collaterally attack the prior removal order if the removal hearing was fundamentally unfair and the defendant was denied the right to appeal. 481 U.S. 828, 841-42, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). He further argued, for the first time, that he satisfied the prerequisites for a collateral attack on his removal order established by 8 U.S.C. § 1326(d), because the BIA's decision in Magallanes-Garcia and the general legal climate at the time of his removal hearing in 1999 rendered any attempt to appeal the removal order futile. In a second written order, the district court responded that "a motion for reconsideration does not provide an occasion to reargue the original motion or to present additional arguments which could have been submitted with it." The court therefore "decline[d] to reconsider its order."

Rivera-Nevarez subsequently entered into a plea agreement with the government, which allowed him to plead guilty to the offense and reserve the right to appeal "those issues raised in his Motion to Dismiss and Motion to Reconsider." The district court accepted the conditional guilty plea and sentenced Rivera-Nevarez to 21 months' imprisonment. This appeal ensued.

On November 9, 2004, the Supreme Court announced its decision in Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). The Court had granted certiorari in Leocal to resolve a conflict among the circuits on the question whether DUI offenses that do not have a mens rea component or require only a showing of negligence in the operation of a vehicle qualify as a crime of violence. Id. at 380.⁴ In Leocal, the Court held that such DUI offenses are not crimes of violence under 18 U.S.C. § 16, and therefore are not "aggravated felonies" under the INA. Id. at 383.

III. DISCUSSION

A. Retroactive Applicability of Lucio-Lucio and Leocal

In denying Rivera-Nevarez's motion to dismiss the indictment, the district court concluded that the BIA's decision in Ramos and this court's decision in Lucio-Lucio were not retroactively applicable and that the removal was therefore valid at the time it occurred. Subsequently, the Supreme Court's decision in Leocal has conclusively established that DUI is not a "crime of violence" under the INA. 125 S.Ct. at 383. Because Leocal involves a question of statutory construction, its holding is retroactively applicable to the time of Rivera-Nevarez's removal hearing. Decisions of statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant. See Rivers v. Roadway Express Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) ("A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction."). For this reason, Leocal provides the correct interpretation of the law as it stood in 1999 when Rivera-Nevarez was deported. See United States v. Shelton, 848 F.2d 1485, 1489-90 (10th Cir.1988) (en banc). The district court's conclusion that Rivera-Nevarez's removal was valid at the time it occurred was therefore in error.

B. Section 1326(d) and Collateral Review of the Removal Order

Although the district court erred in its conclusion that the rule announced in Ramos and Lucio-Lucio was not retroactively applicable to the removal proceeding, Rivera-Nevarez nevertheless cannot collaterally challenge his removal unless he can establish that he meets the statutory prerequisites for a collateral attack set forth in 8 U.S.C. § 1326(d). See United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir.1998). Because Rivera-Nevarez fails to demonstrate that the statutory requirements for a collateral attack are satisfied, this court concludes that he cannot challenge his removal in this criminal prosecution. The district court's error was therefore harmless.

Section 1326 criminalizes reentry into the United States after removal without obtaining advance consent from the Attorney General. 8 U.S.C. § 1326(a). The language of the statute as originally enacted included no exception for cases in which the original removal order was unlawful. See Mendoza-Lopez, 481 U.S. at 835, 107 S.Ct. 2148. The statute provided simply that any alien who "has been . . . deported" will be guilty of a felony if the alien thereafter enters the United States. See id at 835-37, 107 S.Ct. 2148 (concluding that Congress did not intend criminal liability under § 1326 to depend on the validity of the underlying deportation order).

In Mendoza-Lopez, however, the Supreme Court held that when an administrative removal proceeding plays a critical role in the subsequent imposition of a criminal sanction, the proceeding must be conducted in accordance with due process and "there must be some meaningful review of the administrative proceeding." Id. at 837-838, 107 S.Ct. 2148; see also United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir.2004) (en banc). Mendoza-Lopez distinguished the Court's earlier opinion in Lewis v. United States, in which the Court held that Congress could define the "class of persons who should be disabled from dealing in or possessing firearms" by reference to prior state felony convictions, even if those convictions had been obtained in proceedings where the defendant was deprived of counsel in violation of the Sixth Amendment. Lewis, 445 U.S. 55, 67-68, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). The Court in Lewis noted that convicted felons had access to procedures by which they could judicially challenge the validity of their convictions prior to obtaining firearms. Id. at 67, 100 S.Ct. 915. In contrast, the Court in Mendoza-Lopez concluded that the defendant was deprived of the opportunity to judicially challenge the deportation order because he was not adequately informed of his right to appeal. Mendoza-Lopez, 481 U.S. at 839-40, 107 S.Ct. 2148. The Court wrote that "[i]t is precisely the unavailability of effective judicial review of the administrative determination at issue here that sets this case apart from Lewis." Id. at 841, 107 S.Ct. 2148.

In response to Mendoza-Lopez, Congress enacted § 1326(d), which establishes three requirements that an alien must satisfy in order to collaterally challenge a removal proceeding as a defense to a criminal prosecution for illegal reentry. See United States v. Sandoval, 390 F.3d 1294, 1298-99 & 1299 n. 3 (10th Cir.2004). Section 1326(d) requires the alien to demonstrate that:

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

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the...