United States v. Silvestre-Gregorio

• Decision Date: 22 December 2020
• Docket Number: No. 19-5801,19-5801
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro SILVESTRE-GREGORIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

983 F.3d 848

UNITED STATES of America, Plaintiff-Appellee,

v.Pedro SILVESTRE-GREGORIO, Defendant-Appellant.

No. 19-5801

United States Court of Appeals, Sixth Circuit.

Argued: February 5, 2020

Decided and Filed: December 22, 2020

Rehearing En Banc Denied February 23, 2021

ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. William A Roach, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. Stephen B. Kang, ACLU IMMIGRANTS’ RIGHTS PROJECT, San Francisco, California, for Amici Curiae. ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. William A Roach, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. Stephen B. Kang, Cody H. Wofsy, ACLU IMMIGRANTS’ RIGHTS PROJECT, San Francisco, California, for Amici Curiae.

Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

Pedro Silvestre-Gregorio challenges his conviction for unlawful reentry of a removed alien by bringing a collateral attack against his underlying removal order from nineteen years ago. Silvestre-Gregorio alleges that the government violated his due-process rights at his 2001 removal proceeding by failing to provide him with counsel even though he was a juvenile at the time, and by failing to inform him that discretionary relief might be available. The district court rejected both claims and our precedent resolves each issue. Because this court has held that there is no constitutional right to government-provided counsel at civil removal proceedings and that an alien does not have a constitutional right to be informed of discretionary relief, we must AFFIRM.

I.

Silvestre-Gregorio first entered the United States illegally in February 2001 at the age of sixteen. He was detained within a few weeks of his arrival and had his removal hearing on March 22, 2001. He did not have an attorney, but he did receive the assistance of an interpreter and was accompanied by a social worker from Associated Catholic Charities, in whose care he had been placed. The interpreter spoke Spanish; Silvestre-Gregorio spoke little English and some Spanish, but his native tongue was "Chuj," a regional dialect of northern Guatemala. However, he was still able to understand and answer open-ended questions in Spanish, including where he was born, how he crossed the border, and how he got from the border to Houston. But the immigration judge did have to repeat a few questions. Nonetheless, the immigration judge sought to develop the record and patiently explained to Silvestre-Gregorio his options, including his ability to appeal the decision and his right to be represented by retained counsel. The immigration judge explained to Silvestre-Gregorio that he would be given a list of attorneys who would be willing to represent him "at little or no cost" and that he could take some time to find and talk to an attorney. The immigration judge then asked him several times if he would like some time to find an attorney. Silvestre-Gregorio declined and said that he wanted to finish his case that day. The immigration judge did not notify Silvestre-Gregorio about voluntary removal because the judge concluded that relief was not available to him. After Silvestre-Gregorio said he did not want to appeal the immigration judge's decision, he was ordered removed. He was physically removed from the United States on June 14, 2001.

Silvestre-Gregorio returned to the United States in 2002. He subsequently accumulated a lengthy criminal history that included convictions for domestic assault, public intoxication, theft, driving while under the influence, and driving without a license. While he was being held in the Hamblen County, Tennessee, jail after his arrest for domestic assault, federal agents discovered that he was not a U.S. citizen and that he had previously been removed.

On October 10, 2018, the grand jury charged Silvestre-Gregorio with unlawful reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). Silvestre-Gregorio moved to dismiss on the grounds that his prior removal in 2001 violated his right to due process and could not be the basis for his conviction under § 1326. The district court held a hearing on the motion. After hearing from Silvestre-Gregorio and several other witnesses, the district court denied the motion, finding that Silvestre-Gregorio could understand the interpreter during his removal hearing and that he did not have a constitutional right to government-provided counsel at his removal hearing or a constitutional right to be notified of discretionary relief. Silvestre-Gregorio preserved his right to appeal the denial of his motion to dismiss and the district court's finding that his prior removal was a valid basis for a § 1326 conviction. But the elements of the unlawful reentry offense were otherwise stipulated. The Guidelines range was two to eight months, and the district court sentenced him to six months. Silvestre-Gregorio now appeals.

II.

"This court reviews de novo the denial of a motion to dismiss an indictment and a collateral attack upon a prior removal order underlying a conviction for unlawful reentry." United States v. Zuniga-Guerrero , 460 F.3d 733, 735 (6th Cir. 2006) (citation omitted). We review the district court's factual findings for clear error, including the determination as to whether a defendant's waiver "was knowingly and voluntarily made." United States v. Martinez-Rocha , 337 F.3d 566, 569 (6th Cir. 2003) (citation omitted).

"A defendant charged with unlawful reentry may not challenge the validity of his deportation order unless he demonstrates that: ‘(1) [he] 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 [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.’ " United States v. Estrada , 876 F.3d 885, 887 (6th Cir. 2017) (quoting 8 U.S.C. § 1326(d) ). "Because the requirements are conjunctive, the alien must satisfy all three prongs." Id . But frequently, as is the case here, the dispute centers on the third prong of § 1326(d), i.e. , whether the order was fundamentally unfair. "To prove the fundamental unfairness of an underlying deportation order, a defendant must show both a due process violation emanating from defects in the underlying deportation proceeding and resulting prejudice." Id .

Before an alien can demonstrate a violation of the Due Process Clause, he must initially "establish that [he] has been deprived of a life, liberty, or property interest sufficient to trigger the protection of the Due Process Clause in the first place." Ashki v. INS , 233 F.3d 913, 921 (6th Cir. 2000). Silvestre-Gregorio does not claim to have been deprived of a life or property interest, so we consider only whether a liberty interest has been triggered. "A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state [or federal] laws or policies." Wilkinson v. Austin , 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (citations omitted). Because Silvestre-Gregorio's liberty was "at stake" at his removal proceeding nineteen years ago, see Bridges v. Wixon , 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), we find that liberty interest sufficiently implicates the Due Process Clause.

Having established that the Due Process Clause is at least triggered, we must next consider whether a violation has occurred. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("[O]nce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ ") (citation omitted). If this court has previously addressed the due-process claim, then we are bound by precedent; if the claim is an issue of first impression, then we generally apply the three-factor test the Supreme Court set out in Mathews v. Eldridge , 424 U.S. 319, 334–35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (explaining that, in determining the process "due," courts must consider three factors: (1) the private interest affected, (2) the risk of erroneous deprivation of that private interest and the value of any additional safeguards, and (3) the government's interest, including the fiscal and administrative burden the additional safeguards would impose).¹ See United Pet Supply, Inc. v. City of Chattanooga , 768 F.3d 464, 485 (6th Cir. 2014) ("We apply the well-known balancing test from Mathews v. Eldridge to determine if due process was afforded."). If an alien can demonstrate a due-process violation and resulting prejudice, then he can establish fundamental unfairness as required by § 1326(d). Estrada , 876 F.3d at 887.

In this case, we need not address the issue of prejudice because Silvestre-Gregorio has not established a due-process violation. Aliens in removal proceedings are entitled by statute to "the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing." 8 U.S.C. § 1229a(b)(4)(A). Immigration judges are required to inform aliens of this right and to provide them a list of local pro-bono legal service providers. 8 C.F.R. § 1240.10(a)(1), (2). Silvestre-Gregorio does not claim that he was deprived of this right; nor could he. He was informed of the right to seek counsel at least three times: once on the Notice to Appear, once on the Rights Form he received (in both English and Spanish), and again during his removal hearing. The immigration judge asked him if he would like time to find an attorney "at little or no cost" to him. And Silvestre-Gregorio was given a list of local attorneys who would be willing to represent him for free or at little cost. But Silvestre-Gregorio said he...