United States v. Soto-Mateo

• Decision Date: 26 August 2015
• Docket Number: 13–2088.,Nos. 13–2031,s. 13–2031
• Parties: UNITED STATES of America, Appellee, v. Lenny Fernando SOTO–MATEO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

799 F.3d 117

UNITED STATES of America, Appellee

v.Lenny Fernando SOTO–MATEO, Defendant, Appellant.

Nos. 13–2031

13–2088.

United States Court of Appeals, First Circuit.

Aug. 26, 2015.

Eduardo Masferrer, with whom Masferrer & Associates, P.C. was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before KAYATTA, SELYA and DYK^* , Circuit Judges.

Opinion

SELYA, Circuit Judge.

This is a criminal case in which the appellant is challenging his conviction for illegal reentry into the United States as a previously removed alien. See 8 U.S.C. § 1326(a). The appeal turns on the validity of the underlying order of removal. The district court found that the appellant could not satisfy the criteria for mounting a collateral attack on that order and, thus, denied the appellant's motion to dismiss the indictment. The appellant now seeks to reverse the denial of his motion. After careful consideration, we affirm.

I. BACKGROUND

Defendant-appellant Lenny Fernando Soto–Mateo, a citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident in 2000 at age 16. Some seven years later, a federal grand jury sitting in the District of Massachusetts charged the appellant with aggravated identity theft, see 18 U.S.C. § 1028A, making false statements in a passport application, see id. § 1542, and making a false claim of citizenship, see id. § 911. He pleaded guilty and was sentenced to serve a total of 25 months in prison.

In due course, the Department of Homeland Security (DHS) instituted removal proceedings against the appellant on the ground that he had been convicted of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(G) ; see also id. § 1227(a)(2)(A)(iii) (authorizing removal of “[a]ny alien who is convicted of an aggravated felony”). The appellant received a notice concerning bond and custody indicating that he was subject to mandatory detention as a result of his conviction for an aggravated felony. A second custody notice advised him that he could “not request a review of [the custody] determination ... because the Immigration and Nationality Act prohibit[ed] [his] release from custody.” See id. § 1226(c)(1)(B) (mandating detention of aliens deportable under id. § 1227(a)(2)(A)(iii)).

The appellant acknowledged receipt of the removal and custody papers. He also completed a form entitled “Record of Sworn Statement,” which began with a statement of rights printed in both English and Spanish. The enumerated rights included the right to consult an attorney. The form listed a number of questions aimed at determining the appellant's nationality, immigration status, and eligibility for asylum. The appellant expressly waived his right to a lawyer and answered all of the questions in writing. To a question asking whether he was willing to sign a stipulated request for removal and give up the right to appear before an immigration judge (IJ) before being removed, he answered in the affirmative.

Given his acknowledged willingness to stipulate to his removal, DHS provided the appellant with a form entitled “Stipulated Request for Order of Removal and Waiver of Hearing” (the Stipulation). See id. § 1229a(d); 8 C.F.R. § 1003.25(b). The Stipulation was printed in both English and Spanish. By signing it, the appellant conceded removability based on the charges contained in the removal papers, confirmed that he was not applying for any form of relief from removal, and waived his right to a hearing before an IJ. At the same time, he “waive[d] [his] right to appeal the written decision for [his] removal.” The Stipulation concluded with a declaration that the appellant “fully understand[s] [the Stipulation's] consequences” and “unequivocally state [s] that [he has] submitted this document voluntarily, knowingly, and intelligently.”

On March 13, 2009, an IJ ordered the appellant removed. A few days later, the appellant wrote to an immigration officer whom he had met while in detention, imploring the officer to “try to speed up the process so I can leave soon to join my family.” On April 17, 2009, the removal process was completed: the appellant departed Atlanta on a flight bound for the Dominican Republic.

Only a few months passed before a Border Patrol agent apprehended the appellant at a bus station in Louisiana. In short order, a federal grand jury sitting in the Western District of Louisiana charged the appellant with illegal reentry into the United States by a previously removed alien. See 8 U.S.C. § 1326(a), (b)(1). A guilty plea and a 15–month incarcerative sentence followed.

In January of 2011, the appellant was again removed to the Dominican Republic.¹ Undeterred, the appellant again entered the United States illegally and, in February of 2012, was apprehended in Massachusetts. The government once more charged him with illegal reentry. This time, the appellant moved to dismiss the indictment on the ground that his 2009 removal as an aggravated felon could not form the predicate for an illegal reentry charge since none of his underlying convictions was consistent with the aggravated felony designation. Specifically, he posited that aggravated identity theft was not a “theft offense” within the meaning of 8 U.S.C. § 1101(a)(43)(G) because it did not categorically involve a nonconsensual taking of a person's means of identification. See United States v. Ozuna–Cabrera, 663 F.3d 496, 500–01 (1st Cir.2011).

The district court refused to dismiss the indictment. See United States v. Soto–Mateo, 948 F.Supp.2d 77, 80 (D.Mass.2013). It ruled that the appellant had not exhausted his administrative remedies and, thus, could not collaterally attack the underlying removal order. See id. The appellant thereafter entered a conditional guilty plea, see Fed.R.Crim.P. 11(a)(2), preserving the right to appeal the district court's denial of his motion to dismiss. Following the imposition of a 21–month term of immurement, these appeals ensued.²

II. ANALYSIS

A defendant facing a charge of illegal reentry after removal may, under some circumstances, challenge the validity of the underlying order of removal. See 8 U.S.C. § 1326(d) ; United States v. Luna, 436 F.3d 312, 317 (1st Cir.2006). To wage such a collateral attack, he must demonstrate 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.

8 U.S.C. § 1326(d). In reviewing a district court's determination as to whether a particular defendant has satisfied these requirements, we assay the district court's subsidiary factual determinations for clear error, see United States v. DeLeon, 444 F.3d 41, 48 (1st Cir.2006), and afford plenary review to its conclusions of law, see Luna, 436 F.3d at 316. Moreover, when “performing the collateral attack analysis under § 1326(d), [an inquiring] court ordinarily should address the initial test of exhaustion of administrative remedies before going on to the other two tests.” DeLeon, 444 F.3d at 45. The elements of section 1326(d) are conjunctive, and an appellant must satisfy all of those elements in order to prevail on a collateral challenge to his removal order. See Luna, 436 F.3d at 317.

The appellant stumbles at the first step. He concedes that he did not exhaust available administrative remedies but, rather, waived his right to appeal the IJ's removal order to the Board of Immigration Appeals (BIA). A failure to take such an available administrative appeal is a failure to exhaust administrative remedies within the meaning of section 1326(d). See DeLeon, 444 F.3d at 50 & n. 7. The appellant nonetheless strives to circumvent this failure by asserting that his waiver was neither knowing nor intelligent and, accordingly, he should be excused from the exhaustion requirement.

Several courts have recognized an exception to the exhaustion requirement for cases in which the alien's waiver of administrative review was not knowing and intelligent.

See, e.g., Richardson v. United States, 558 F.3d 216, 219–20 (3d Cir.2009) ; United States v. Sosa, 387 F.3d 131, 136 (2d Cir.2004) ; United States v. Martinez–Rocha, 337 F.3d 566, 569 (6th Cir.2003) ; United States v. Muro–Inclan, 249 F.3d 1180, 1183 (9th Cir.2001) ; see also United States v. Mendoza–Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (holding, prior to enactment of section 1326(d), that a person charged with illegal reentry has a constitutional right to collaterally attack the underlying removal order when a due process violation in a removal proceeding “amount[s] to a complete deprivation of judicial review”). We have reserved judgment on whether to recognize such an exception, see DeLeon, 444 F.3d at 51, and it is unnecessary for us to revisit that reservation today. Assuming without deciding that due process concerns sometimes may warrant an exception to the statutory exhaustion requirement, the appellant's case would not qualify for such an exception. We explain briefly.

To begin, section 1326(d) places the burden on the defendant to “demonstrate[ ]” an entitlement to relief. Richardson, 558 F.3d at 222 & n. 5 ; see also Luna, 436 F.3d at 317 (“[A] defendant must satisfy all of [the statutory elements] to successfully attack his removal order.”). We think it follows that a defendant bears the burden of proving his eligibility for any exception to the statutory requirements. See United States v. Baptist, 759 F.3d 690, 694–95 (7th Cir.2014) ; Richardson, 558 F.3d at 222 ; United States v. Rangel de Aguilar, 308 F.3d 1134, 1137 (10th Cir.2002).³ We hold, therefore, that—at least where, as here, the government produces a written and signed waiver of rights—the defendant must carry the burden of showing that the waiver was infirm.

The appellant has not...