U.S. v. Sotelo-Mendoza
| Decision Date | 18 December 2002 |
| Docket Number | No. EP-02-CR-1268-DB.,EP-02-CR-1268-DB. |
| Citation | 234 F.Supp.2d 671 |
| Parties | UNITED STATES of America, v. Bernardino SOTELO-MENDOZA. |
| Court | U.S. District Court — Western District of Texas |
James N. Langell, El Paso, TX, for defendant.
Brandy Gardes, Assistant U.S. Attorney, El Paso, TX, for Plaintiff.
On this day, the Court considered Defendant Bernardino Sotelo-Mendoza's "Motion to Dismiss the Indictment," filed in the above-captioned cause on October 18, 2002. The Government filed a Response on October 23, 2002, to which Defendant filed a Reply on November 6, 2002.
On July 24, 2002, Defendant was indicted pursuant to 8 U.S.C. § 1326(a)(1) and (b)(2).1 Thereafter, Defendant filed the instant Motion challenging the validity of his prior order of removal from the United States upon which the Government based its charges of illegal re-entry after deportation pursuant to 8 U.S.C. § 1326. After due consideration, the Court is of the opinion that Defendant's Motion should be denied for the reasons set forth below.
Defendant was born in Mexico in 1929 and arrived in the United States during the 1950's as a laborer in the Bracero Program. He obtained permanent resident alien status in 1963. In 1982 and 1983, Defendant was convicted of two separate offenses in Kern County, California. In April 1982, Defendant pled guilty to a violation of § 647a of the California Penal Code for annoying/molesting a child2 in Bakersfield, California and ordered to serve forty-five days in jail as a term of three years probation. On July 28, 1983, Defendant pled guilty to annoying/molesting a child pursuant to § 647a, and having previously been convicted of an offense under the same statute, thereafter sentenced to two years of imprisonment. Defendant was again convicted on December 23, 1992, when he pled guilty to possession of heroin for sale, in violation of § 11351 of the California Health and Safety Code, and was sentenced to confinement for a period of 176 days.
On October 28, 1999, the Immigration and Naturalization Service ("INS") served Defendant with a Notice to Appear charging him with removability as an aggravated felon under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 10 Stat. 3009-546 (1996), based on his 1992 conviction for possession of heroin for sale.3 On January 3, 2000, the Immigration Judge ("IJ") ordered him removed from the United States as an alien who had been convicted of an aggravated felony and had no other relief from deportation available to him. Following his decision, the IJ explained that Defendant may appeal the decision to the Board of Immigration Appeals ("BIA") or accept deportation to Mexico. Defendant announced that he wanted to appeal the decision. Defendant appealed to the BIA on the ground, inter alia, that the IJ erred in failing to consider Defendant for relief under § 212(c), discussed below. The BIA dismissed Defendant's appeal, finding that Defendant was ineligible for relief from removal. The BIA construed Defendant's § 212(c) claim as a complaint that "the IJ erred in failing to advise him of his eligibility for a section 212(c) waiver." As to that claim, the BIA held, "[t]o the extent the respondent is seeking relief from deportation under section 212(c) of the [Immigration and Nationality] Act, 8 U.S.C. § 1182(c), we note that this relief is no longer part of the Act, as it was repealed and is not available in removal proceedings." On May 16, 2000, Defendant was removed from the United States.
According to the Indictment in the instant cause, subsequent to Defendant's removal, he re-entered the United States on July 8, 2002. On July 24, 2002, he was indicted pursuant to 8 U.S.C. § 1326(a)(1) & (b)(2). The Indictment alleges that Defendant, "an alien, who had previously been excluded, deported, and removed from the United States on or about May 16, 2000, and who had not received the consent of the Attorney General of the United States to re-apply for admission, attempted to enter, entered and was found in the United States...."
Defendant filed the instant Motion arguing that his removal proceeding was so fundamentally unfair and prejudicial that, under United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), his removal cannot be used as an element in this prosecution. Specifically, Defendant, citing INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), argues that his removal was fundamentally unfair and prejudicial because he was unlawfully denied the right to obtain discretionary relief under § 212(c) () of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c).
In order to challenge the use of a prior removal order in a prosecution for illegal re-entry under 8 U.S.C. § 1326, Defendant must satisfy the requirements set forth by the Supreme Court in United States v. Mendoza-Lopez. The Fifth Circuit, interpreting Mendoza-Lopez, has held that in order to challenge the validity of an underlying deportation order described in an indictment made pursuant to 8 U.S.C § 1326(a) or (b), an alien must establish that: "(1) the prior hearing was `fundamentally unfair'; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice." United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir.2000) (citations omitted). If a defendant fails to establish one of the elements, a court need not consider the others. United States v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th Cir.1992) (citing United States v. Palacios-Martinez, 845 F.2d 89, 92 (5th Cir. 1988); United States v. Saucedo-Velasquez, 843 F.2d 832, 836 n. 6 (5th Cir.1988)).
According to the Fifth Circuit, Congress effectively codified its interpretation of Mendoza-Lopez in 8 U.S.C. § 1326(d), which provides:
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) of this section unless the alien demonstrates that:
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceeding at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d); see also United States v. Benitez-Villafuerte, 186 F.3d 651, 658 n. 8 (5th Cir.1999).
Prior to 1997, certain aliens in deportation or exclusion proceedings could apply for a 212(c) waiver of criminal convictions or other excludable or deportable offenses. Under § 212(c) of the Immigration Act of 1952, "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General...." 8 U.S.C. § 1182(c) (repealed 1996). Although § 212(c) expressly applied only to aliens who temporarily left the United States, federal courts and the INS ruled that permanent resident aliens who had not left the country and met the seven-year requirement could also apply for a discretionary waiver from deportation. See St. Cyr, 533 U.S. at 295, 121 S.Ct. at 2276 (citations omitted).
In 1990, Congress narrowed the availability of discretionary waivers and amended former § 212(c) to provide that a waiver was not available "to any alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years." Immigration Act of 1990 ("IMMACT"), Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990) ( former 8 U.S.C. § 1182(c)). This amendment was further revised by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 ("MTINA") to clarify that the five-year term could be served on multiple convictions. Pub.L. No. 102-232, § 306(a)(10), 105 Stat. 1742 (1991). MTINA replaced the phrase "an aggravated felony and has served" with "one or more aggravated felonies and has served for such felony or felonies." § 306(a)(10), 105 Stat. at 1751. The amendment became effective with the enactment of IMMACT. Id. § 310, 105 Stat. at 1759.
Under § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Congress expanded the statutory ban on 212(c) waivers by rendering ineligible for relief aliens who were deportable based on convictions for certain criminal offenses, including aggravated felonies, controlled substance offenses, certain firearms offenses, national security violations, and more than one crime of moral turpitude, regardless of the time served. Pub.L. No. 104-132, 110 Stat. 1214, 1277 (effective April 26, 1996). Later that year, Congress passed IIRIRA, which repealed § 212(c) in its entirety, and substituted a new form of relief, known as cancellation of removal, 8 U.S.C.A. § 1229b (West 1999).4 According to the Attorney General, these amendments withdrew his 212(c) authority to waive deportation for aliens previously convicted of aggravated felonies. See St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277-78. Before the Supreme Court's decision in St. Cyr, immigration judges universally held, as did the judge in the instant case, that an immigrant placed in deportation or removal proceedings after April 1, 1997, the effective date of IIRIRA, could not apply for 212(c) relief.
In St. Cyr, the United States Supreme Court held that although 212(c) relief had been repealed, aliens who were removable under IIRIRA were still eligible to apply for a 212(c) waiver if their convictions were "obtained through plea agreements" and "notwithstanding those convictions, [those aliens] would have been...
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...the Petitioner has no constitutional entitlement to eligibility for discretionary relief. Id.; see also United States v. Sotelo-Mendoza, 234 F. Supp. 2d 671, 678 (W.D. Tex. 2002).6 II. Petitioner may have been "illegally arrested" as an "arriving alien" but this mistake does not entitle Pet......