U.S. v. Santos-Vanegas, SANTOS-VANEGA

• Decision Date: 26 June 1989
• Docket Number: SANTOS-VANEGA,No. 88-2181,A,88-2181
• Citation: 878 F.2d 247
• Parties: UNITED STATES of America, Appellee, v. Julio Cesarppellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 247

878 F.2d 247

UNITED STATES of America, Appellee, v. Julio Cesar SANTOS-VANEGAS, Appellant.

No. 88-2181.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1989.

Decided June 26, 1989.

R. Thomas Day, St. Louis, Mo., for appellant.

John T. Bannon, Jr., Washington, D.C., for appellee.

Before LAY, Chief Judge, and ARNOLD and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

Julio Cesar Santos-Vanegas, an immigrant who was deported to his native El Salvador on April 13, 1986, was arrested on March 15, 1988 for the felony of unlawful re-entry into the United States after deportation in violation of 8 U.S.C. Sec. 1326. Santos-Vanegas moved to suppress evidence of the prior deportation on grounds that the Immigration Law Judge (ILJ) who entered the deportation order had not advised him of his right to appeal to a federal court, and that the ILJ had applied an incorrect legal standard with regard to his political-asylum application, according to INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The District Court adopted the recommendation of a United States Magistrate to deny the defendant's motion to suppress, and convicted Santos-Vanegas under Sec. 1326 on July 21, 1988.

The defendant argues on appeal that the deportation order underlying his conviction was illegal and can be collaterally attacked. In light of the Supreme Court's ruling in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), we agree that the prior deportation proceedings, as used to establish an element of a criminal offense, are reviewable and that they deprived the defendant of liberty without due process. Accordingly, we reverse the Sec. 1326 conviction based on the deportation.

I.

Julio Cesar Santos-Vanegas was born in 1950 in El Salvador. He fled his country in 1984 because he was frightened by Communist guerrillas who "put guns before me and told me that they would kill me if I didn't go with them." TR 10 (Jan. 22, 1986). He also testified that there were many guerrillas in his home town, id. at 12, who go after civilians and may kill them for refusing to join. Id. at 9. Santos-Vanegas and his family supported the Salvadoran government against the guerrillas, and he belonged to the National Conciliation Party and the Republican Party. Id. at 10, and Asylum Request, Ex. B, at 3. Apparently, all but one of his several siblings had left El Salvador by 1984, with some staying in refugee camps in Honduras and one living in Texas. TR 13-14 (Jan. 22, 1986).

The defendant fled through Guatemala and Mexico, entering the United States without inspection near Hidalgo, Texas on or about February 28, 1984. He applied for political asylum at an Immigration and Naturalization Service (INS) office in Houston three months later, on May 22, 1984. The following day, the INS took him into custody, issuing an order to show cause why he should not be deported under 8 U.S.C. Sec. 1251(a)(2) for entry without inspection. The defendant did not appear at his scheduled deportation hearing in Houston on April 29, 1985, and then on August 21st he was arrested by INS officers in Florida.

Santos-Vanegas appeared before an ILJ in Miami on October 3, 1985. The ILJ adjourned this first hearing and two subsequent ones to allow the defendant time to contact a Texas lawyer with whom Santos-Vanegas had had some earlier communication. ¹ The ILJ advised the defendant that

if your lawyer in Houston is not able to come, you have a right to hire you a local lawyer here without cost to the United States Government. And I'm also going to.... [g]ive you a list of organizations in [the Miami] area that have free lawyers. You might be able to get a free lawyer to help you if you need a free lawyer.

TR 4-5 (Oct. 15, 1985). The defendant testified that he tried to contact his Texas lawyer, TR 3-4 (June 2, 1988), and also that his nephew in Florida had promised to hire an attorney on his behalf. Id. at 15-16. The defendant did not pursue assistance from any of the Miami legal-aid organizations, although he testified that he had been tempted to ask for help in doing so from Spanish-speaking INS employees. Id. at 17.

On January 22, 1986, the ILJ resumed the deportation proceedings and heard the defendant's political-asylum claim pro se. The Judge stated that he was reviewing the defendant's asylum application as if it were an application for withholding of deportation. Oral Decision at 1 (Jan. 22, 1986). The ILJ acknowledged that Santos-Vanegas had "some subjective fear of harm if returned to El Salvador," based on what the guerrillas might do to him if he again refused to join their cause. Id. at 2. However, the ILJ concluded that the defendant's fear "is unsupported by any objective evidence in this matter." Id. Because the guerrillas had not carried out the threats made on the defendant's life in this instance, the Judge stated: "[s]o nobody really was getting ready to kill you, right? They just frightened you and you got scared and left." TR 10 (Jan. 22, 1986). The Judge also concluded that a principal reason for the defendant's flight from El Salvador was his inability to find work there. The ILJ drew support for his determination that Santos-Vanegas was motivated by economic concerns from the defendant's testimony that, in his journey from El Salvador, he had left Guatemala after four days because he was not finding work in that country, and that he did not try to get a job during his three days in Mexico en route to the United States. At the conclusion of the January 22nd hearing, the ILJ entered a deportation order and denied defendant's application for political asylum. He informed the defendant of his right to appeal the decision to the Board of Immigration Appeals (BIA).

Santos-Vanegas did file an administrative appeal on January 29, 1986, with the assistance of an INS employee who filled out the notice-of-appeal form. Santos-Vanegas had no formal education and no training in the American legal system. Findings of Fact, Magistrate's Order and Recommendation, p 11 (June 3, 1988). He spoke no English and could not read or write in any language. Id. Unable even to write his own name, his appeal bears a "+" to mark his signature. Id. The reasons stated on his notice of appeal for contesting the January 22nd decision reveal the defendant's confusion about the deportation order issued by the ILJ and its consequences:

.... Because of my well-founded fear, the Immigration Judge gave me an opportunity to submit an application for [political asylum] in the U.S. which I failed to submit within the given date because they were lost and I did not know they could be replaced prior [to] my court date. Please allow me to do so.

Notice of BIA Appeal, Ex. C. We have no reason to think that the timeliness of the defendant's asylum application was ever at issue in his case. Moreover, the ILJ obviously did not recognize Santos-Vanegas's well-founded fear.

The BIA dismissed the defendant's appeal on the merits on April 3, 1986. The opinion reasserts the ILJ's view that an asylum application could be treated as an application for withholding of deportation: "(T)he eligibility standards for withholding of deportation and asylum are not meaningfully different and, in practical application, converge." BIA No. A26-419-463-Miami (April 3, 1986).

On April 9, 1986, the INS issued a Warrant of Deportation for Santos-Vanegas, and he was deported on April 13th, ten days after the denial of his BIA appeal. The notice that the defendant received on April 9th about his imminent deportation did not in any way indicate that he could pursue further appeal in the federal courts. Ex. 3. Neither had the ILJ or anyone else earlier advised him of any opportunity to appeal beyond the administrative level. Santos-Vanegas testified that he knew to file a BIA appeal because of the assistance he received from the INS employee, and that no one informed him that he could then challenge the BIA's decision in the court system. TR 4-5 (June 2, 1988).

After his deportation, the defendant was found in Florissant, Missouri on March 15, 1988. He had not obtained the express consent of the Attorney General to reapply for admission to this country, and thus was arrested pursuant to 8 U.S.C. Sec. 1326(a) for unlawful re-entry into the United States. The defendant moved to suppress the 1986 deportation order underlying the charged criminal offense. A United States Magistrate conducted a hearing and then recommended denial of the motion to suppress evidence. The Magistrate attempted to distinguish this case from United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), asserting that the defendant here "was able to pursue judicial review if he had known and chosen to do so." Magistrate's Order and Recommendation, at 9 (June 3, 1988). The District Court adopted the Magistrate's Report on July 7, 1988. Since the only contested issue was whether the 1986 deportation order could be relied on by the government to prove the criminal offense, the Court proceeded to find Santos-Vanegas guilty as charged, and sentenced him to time already served with a recommendation that he not be deported. TR 5-7, 9-12 (July 21, 1988). We now consider the defendant's challenge to the use of the underlying deportation order as proof of the criminal offense.

II.

A defendant must be permitted to attack collaterally "the use of a deportation proceeding as an element of a criminal offense ... where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review...." Mendoza-Lopez, supra, 481 U.S. at 839, 107 S.Ct. at 2155. The defects identified by the Supreme Court in Mendoza-Lopez's administrative hearing--the failure of the ILJ to explain adequately the aliens' rights to appeal their deportation orders and to seek statutory relief known as suspension of deportation--"amounted to a complete deprivation of...