US v. Baez-Ortega
| Decision Date | 13 December 1995 |
| Docket Number | Crim. No. 95-305. |
| Citation | 906 F. Supp. 740 |
| Parties | UNITED STATES of America, Plaintiff, v. Jorge BAEZ-ORTEGA, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Benicio Sanchez-Rivera, Federal Public Defender, Gustavo A. Gelpi, Jr., Asst. Public Defender, Old San Juan, PR, for defendant.
Maria Pabón, Asst. U.S. Attorney's Office District of P.R., Criminal Division, Hato Rey, PR, for plaintiff.
Before the Court is a motion to dismiss the one count charge against Defendant, Jorge Baez Ortega ("Baez"), for unlawful reentry into the United States after deportation in violation of 8 U.S.C. § 1326(a) & (b)(2) (1995). For the reasons explained below, the Court denies the motion.
The facts in this case are undisputed. Baez, a native and citizen of the Dominican Republic, entered the United States by passing through Puerto Rico without inspection. On November 3, 1987, a Bronx County, New York Court convicted Baez for the attempted criminal sale of a controlled substance. For this crime, Baez served six months in prison. Shortly thereafter, on March 12, 1990, a Worcester County, Massachusetts Court convicted Baez for the unlawful possession of a controlled substance with the intent to distribute. For this second crime, the court sentenced Baez to a prison term of five (5) to eight (8) years.
Because Baez was neither a citizen nor a native of the United States and he was convicted of two aggravated felonies, the Immigration and Naturalization Service ("INS") moved to deport him. On January 19, 1993, Baez appeared before an Immigration Judge ("IJ") at the Old Colony Correctional Institution in Bridgewater, Massachusetts for a deportation hearing.
At the inception of the hearing, the IJ immediately advised Baez of his right to counsel at his own expense or at the expense of a legal services organization.1 Furthermore, the IJ informed Baez that he was provided a list of legal organizations that may appear voluntarily to represent him in these proceedings. When Baez expressed an interest in obtaining the services of an attorney, the IJ suspended the hearing until February 16, 1993 explicitly providing Baez with time to procure legal counsel. Significantly, the IJ forewarned Baez that if Baez failed to obtain counsel he would have to represent himself at the hearing.
The following excerpt from the hearing demonstrates that the IJ provided Baez unambiguous advice regarding his right to counsel:
See Tape Recording of the Immigration Hearing, Joint Exhibit I. Subsequent to this exchange, the IJ informed Baez about a mistake in the court documents. He advised Baez to inform his attorney about the error. The following conversation then took place:
Id. This exchange indicates Baez' understanding of the judge's instructions. Once informed that he had to call the legal service organizations, Baez asked appropriately about the consequences of failing to obtain an attorney. Again, with absolute clarity, the IJ stated that the deportation hearing would take place without counsel for Baez.
At the second hearing, on February 16, 1993, the IJ inquired immediately whether Baez tracked down an attorney to represent his interests. Baez indicated that the attorneys he called would promise to meet with him but never show up. When asked, however, if he contacted all the organizations on the list, Baez responded: "Not all of them but plenty." The judge found that Baez had an adequate opportunity to locate counsel. As premonished, the IJ began the hearing despite the fact that Baez would have to represent himself. Consequently, the IJ apprised Baez of his rights: (1) the right to inspect documents that the INS wishes to enter into evidence; (2) the right to object for any reason to the introduction of those documents; (3) the right to cross-examine witnesses called by the INS; and (4) the right to present his own witnesses. Baez stated that he understood these rights.
The IJ then made several findings of fact. After each finding, the judge asked Baez whether the fact was true and Baez responded affirmatively to each one. Baez admitted that he was not a citizen or national of the United States. He confirmed that he was a native and citizen of the Dominican Republic who entered the United States on or about August 1, 1988 without inspection. Finally, he agreed that he was sentenced five (5) to eight (8) years by a Worcester County Court for the possession of cocaine with the intent to distribute.
On the basis of these factors, the IJ found Baez deportable and unsuitable for relief from deportation. Accordingly, the judge told Baez that if he agreed with the decision, Baez could accept it as a final adjudication. The judge also informed Baez that if he disagreed with the decision, he had the right to appeal the holding to the Board of Immigration Appeals in Washington, D.C.. Interrupting the judge, Baez stated without hesitation and without being asked: "I agree with the decision."
True to his word, Baez never filed an appeal and was deported to the Dominican Republic on October 27, 1993. Almost two years later, on September 12, 1995, United States Border Patrol Agents discovered Baez at a sugar cane field in Rincòn, Puerto Rico. Without the express written consent of the Attorney General, Baez re-entered the United States allegedly in violation of the law. After being indicted for the crime of unlawful entry, Baez now moves to dismiss the indictment on the grounds that he was deprived of the right to counsel at the 1993 deportation hearing and that he never received an I-618 form.
Baez' collateral attack on his deportation hearing presents two distinct questions. First, whether there was a fundamental error in Baez' deportation proceedings, namely the denial of the right to counsel, that deprived Baez of his right to judicial review. Second, assuming that there was a fundamental error, whether that error alone is enough to deprive Baez of judicial review or whether Baez must establish that the error prejudiced the outcome of the deportation proceedings. This latter question is an issue of first impression in the First Circuit.
The Government has charged Baez with unlawful entry into the United States pursuant to 8 U.S.C. § 1326 (1995). To prosecute Baez successfully for this crime, the Government must prove two elements: (1) Baez was arrested and deported previously; and (2) Baez entered the United States without inspection and without the Attorney General's authorization.2 Because Baez' deportation followed a conviction for an aggravated felony, the possession of cocaine with the intent to distribute, he is subject to a prison sentence of twenty (20) years, an additional three year term of supervised release, and/or a fine not to exceed two-hundred and fifty thousand dollars ($250,000.00). 8 U.S.C. § 1326(b)(2).
Under the aegis of United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), Baez is launching a collateral attack on the first element of the crime, the underlying order deporting him from the United States. In Mendoza-Lopez, aliens convicted under section 1326 collaterally attacked the underlying deportation order claiming that the IJ inadequately informed them of the right to counsel and accepted their unintelligent waiver of their right to apply for a suspension of the deportation. Although Congress never authorized a collateral attack upon the deportation order in section 1326, the Supreme Court held that constitutional due process requires "some meaningful review" of the deportation hearing because this administrative inquiry plays a "critical role" in the imposition of criminal sanctions. Id., 481 U.S. at 837-38, 107 S.Ct. at 2155.
The Court never discussed the fundamental errors that deny aliens due process in a deportation hearing.3 Instead, the Government asked the Court to assume that the inadequate explanation of the right to apply for relief from deportation and the right to appeal were fundamental errors in violation of due process. Id., 481 U.S. at 839-40, 107 S.Ct. at 2156. After making this assumption, the Court found that the aliens were completely deprived of judicial review.4Id. Consequently, the Government could not rely on the deportation order as the first of the two necessary elements to obtain a conviction for unlawful entry into the United States.
Mendoza-Lopez does not provide guidance on whether the IJ deprived Baez of his right to counsel or define the parameters of the violation of this right. It is well-settled, however, that Baez did not have a Sixth Amendment right to counsel in his deportation hearing. See Lozada v. I.N.S., 857 F.2d 10, 13 (1st Cir.1988); I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984).
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