U.S. v. Villa-Fabela, VILLA-FABEL

• Decision Date: 15 August 1989
• Docket Number: No. 88-3050,D,VILLA-FABEL,88-3050
• Citation: 882 F.2d 434
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscarefendant-Appellant.

Page 434

882 F.2d 434

UNITED STATES of America, Plaintiff-Appellee, v. Oscar VILLA-FABELA, Defendant-Appellant.

No. 88-3050.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1988.

Decided Aug. 15, 1989.

Appeal from the United States District Court for the District of alaska.

Nancy Shaw, Asst. Federal Public Defender, Anchorage, Alaska, for defendant-appellant.

Joseph W. Bottini, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee.

Before NELSON, BOOCHEVER and BRUNETTI, Circuit Judges.

NELSON, Circuit Judge:

OVERVIEW:

Mr. Oscar Villa-Fabela appeals from his conviction for the crime of Re-Entry of Deported Alien in violation of 8 U.S.C. Sec. 1326. He collaterally attacks the validity of the underlying deportation proceeding on the grounds that he was not advised of the availability of free legal services programs located in the district where his application was heard, in violation of 8 C.F.R. Sec. 242.16(a) and assertedly in violation of his statutory and procedural due process rights to counsel; he was not told of his right to contact the Mexican Consulate after he was taken into administrative detention, nor did the INS contact the Mexican Consulate on Mr. Villa-Fabela's behalf, in violation of 8 C.F.R. Sec. 242.2(f); and the immigration judge assertedly failed adequately to question Mr. Villa-Fabela regarding his waiver of appeal to ensure that it was knowing and intelligent. Because we find that the procedural defects neither rendered the deportation proceeding fundamentally unfair nor prejudiced the defendant, we affirm the conviction and reject Mr. Villa-Fabela's collateral attack.

FACTUAL AND PROCEDURAL BACKGROUND

On January 30, 1986, Mr. Villa-Fabela was given a two-year sentence by an Alaska State court for theft in the second degree. Mr. Harpold, an INS officer, contacted Mr. Villa-Fabela in early July, while he was incarcerated, to determine whether Mr. Villa-Fabela was a United States citizen. Mr. Harpold determined, on the basis of Mr. Villa-Fabela's statement that he had entered the United States without inspection, that Mr. Villa-Fabela was an alien subject to deportation. On July 11, 1986, Mr. Harpold served Mr. Villa-Fabela with an administrative order to show cause, on the back of which is printed a statement that the alien has a right to representation at no expense to the government. Mr. Villa-Fabela signed this paper.

Mr. Harpold stated that he had told Mr. Villa-Fabela of his right to contact the Mexican Consulate, and that Mr. Villa-Fabela had said that he would not contact the consulate because he did not believe contact would be helpful. In September 1986, Mr. Villa-Fabela requested assistance from the Alaska Legal Services Corporation but was refused.

A warrant for the arrest of an alien was issued by the INS and served on Mr. Villa-Fabela on January 23, 1987. Attached to the warrant was a form informing the defendant that pending a final determination of deportability, he could pursue release under a $7,500 bond or seek redetermination of the bond amount by the immigration judge. On January 27, 1987, Mr. Villa-Fabela was released from the state jail and taken by Mr. Harpold to the airport for transportation to Seattle for a deportation hearing. No one advised Mr. Villa-Fabela of his rights immediately prior to the hearing. Immigration officers took Mr. Villa-Fabela before the administrative judge approximately one hour after he had arrived in Seattle. Mr. Villa-Fabela was given a form advising him of his rights on appeal and a document stating that if he were unable to afford legal representation, the Alaska Legal Services Corporation might provide assistance. He was not provided with a list of available legal services in Seattle. Mr. Villa-Fabela testified that he knew no one in Seattle and had insufficient time prior to the hearing to call an attorney.

During the deportation hearing, the immigration judge informed Mr. Villa-Fabela of his right to representation without cost to the government. The judge asked Mr. Villa-Fabela if he had been furnished with a list of attorneys who might represent him without expense, to which Mr. Villa-Fabela responded affirmatively. The judge also asked if Mr. Villa-Fabela received a paper telling him about his rights in the hearing. Mr. Villa-Fabela answered that he had. The judge offered to continue the hearing to afford Mr. Villa-Fabela an opportunity to obtain counsel. Mr. Villa-Fabela chose to proceed without counsel. The judge conducted the hearing and ordered deportation because Mr. Villa-Fabela admitted that he had entered without inspection. Mr. Villa-Fabela then requested permission to apply for suspension of deportation. The immigration judge considered and denied the request on the ground that Mr. Villa-Fabela was statutorily ineligible for relief from the deportation order. Mr. Villa-Fabela stated that he wished to appeal and requested release pending appeal. The judge advised Mr. Villa-Fabela that he would have to post a bond in order to secure his release. Mr. Villa-Fabela was unable to post the bond. Mr. Villa-Fabela claims that upon leaving the hearing room, an Immigration Officer told him that an appeal would take months. Mr. Villa-Fabela asked to be returned to the hearing room, where he informed the judge that he wanted to waive his appeal because of the amount of time an appeal might take while he remained incarcerated. The judge did not ask Mr. Villa-Fabela how long he thought the appeal might take. Nor did the judge inform Mr. Villa-Fabela that he might petition for a reduction of bail or that he might appeal the bail setting so that he could be at liberty while pursuing his appeal. The judge queried whether Mr. Villa-Fabela's change of mind was coerced. Mr. Villa-Fabela replied that it was his own decision, and the judge accepted the waiver of appeal.

Mr. Villa-Fabela was deported. He subsequently returned to the United States and was indicted for the crime of Re-Entry of Deported Alien in violation of 8 U.S.C. Sec. 1326. Before trial, Mr. Villa-Fabela moved to dismiss the indictment on the ground that the underlying deportation proceeding was defective. The district court rejected his collateral challenge to the deportation proceeding and denied his Motion to Dismiss. Mr. Villa-Fabela was tried by a jury and convicted, and now appeals.

STANDARD OF REVIEW:

We review de novo Mr. Villa-Fabela's claims that his waivers of his rights to counsel and to appeal were not knowing and intelligent. Colindres-Aguilar v. INS, 819 F.2d 259, 261 (9th Cir.1987); United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (holding that de novo review is appropriate when the issue is a mixed question of law and fact involving constitutional rights), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Mr. Villa-Fabela's claims that the defects in the underlying deportation procedure invalidated the proceeding for use in his criminal conviction are mixed questions of law and fact requiring us to exercise judgment about legal principles. See McConney, 728 F.2d at 1200-04.

DISCUSSION:

I. The violation of 8 C.F.R. Sec. 242.16(a) does not preclude use of the deportation proceeding to support a criminal conviction under 8 U.S.C. Sec. 1326.

Mr. Villa-Fabela contends that the failure of the INS or the immigration judge to provide him with a list of free legal services located in the district in which his deportation proceeding took place, in violation of 8 C.F.R. Sec. 242.16(a), denied him the right to counsel. Mr. Villa-Fabela argues that under the new test for collateral attacks on deportation proceedings articulated in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), he need not establish that the failure was prejudicial. ¹ The government argues that Mendoza-Lopez did not affect the Ninth Circuit's requirement that the procedural defect actually prejudice the alien. The government further argues that the failure of the INS and immigration judge to provide Mr. Villa-Fabela with the information regarding availability of counsel was not prejudicial and did not interfere with due process.

A. Failure to provide Mr. Villa-Fabela with a list of available legal services in the district in which his deportation hearing was held did not, under the facts of this case, effectively deny Mr. Villa-Fabela judicial review or render the proceeding fundamentally unfair.

The Supreme Court held in Mendoza-Lopez that the result of an administrative proceeding may not be used to establish an element of a criminal offense at least where the defects in the proceeding violate due process by effectively foreclosing judicial review. Mendoza-Lopez, 481 U.S. at 838 & n. 15, 107 S.Ct. at 2155 & n. 15 ("[A]t a minimum, the result of an administrative proceeding may not be used as a conclusive element of a criminal offense where the judicial review that legitimated such a practice in the first instance has effectively been denied."). Contrary to the government's argument, a procedural defect that effectively denies judicial review precludes use of the deportation order to establish an element of a criminal offense under Mendoza-Lopez whether or not the defendant establishes actual prejudice.

The Mendoza-Lopez Court held that because the respondents' waivers of their rights to appeal from the deportation proceeding were not considered or intelligent, the respondents were deprived of judicial review. The Court declined to enumerate which other procedural errors are so fundamental that they may functionally deprive an alien of judicial review, but noted that such abuses might be analogous to due process violations in criminal trials that have been found "necessarily [to] render a trial fundamentally unfair." Id. at 839 n. 17, 107 S.Ct. at 2155 n. 17 (quoting Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)).

We hold that the failure of the INS and...