US v. Vieira-Candelario, Cr. No. 92-044 P.

• Citation: 797 F. Supp. 117
• Decision Date: 07 August 1992
• Docket Number: Cr. No. 92-044 P.
• Parties: UNITED STATES of America v. Aurelio VIEIRA-CANDELARIO.
• Court: U.S. District Court — District of Rhode Island

797 F. Supp. 117

UNITED STATES of America v. Aurelio VIEIRA-CANDELARIO.

Cr. No. 92-044 P.

United States District Court, D. Rhode Island.

August 7, 1992.

Craig Moore, Asst. U.S. Atty., Providence, R.I., for U.S.

Damon D'Ambrosio, Providence, R.I., for Vieira-Candelario.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

The government charged Aurelio Vieira-Candelario with violating 8 U.S.C. § 1326— unlawful reentry into the United States after a prior order of deportation without first seeking the permission of the Attorney General of the United States.¹ The defendant filed two motions with the Court asking for essentially the same relief: a motion to quash the indictment and a motion to dismiss. Both motions collaterally attack the deportation order upon which the charge and indictment are premised. For the reasons discussed below, both motions are denied.

I

Aurelio Vieira-Candelario entered the United States in December 1963. He resided in the country as a lawful permanent resident alien until October 27, 1989, at which time he was deported. The deportation order, issued on September 20, 1989, followed from his conviction for Simple Possession of Heroin and Possession with the Intent to Deliver Heroin.

The defendant, although a native and citizen of the Dominican Republic, has many ties to the United States. He lived here for over twenty-five years, serving in the United States Army during the Vietnam-war era. His wife and children are all United States citizens. It is unsurprising that he returned to this country after his deportation. The crime he is now charged with is just that: the government alleges he unlawfully reentered the United States following deportation.

Defendant's motions do not challenge the current criminal charge. Instead, defendant collaterally attacks the original deportation order. Defendant argues that the previous deportation order, a necessary element in proving this crime, was unlawfully entered.

The defendant alleges certain specific deficiencies surrounding his deportation order. After pleading nolo contendere to the counts of heroin possession and heroin possession with intent to deliver, defendant was brought before the Office of the Immigration Judge on September 20, 1989. The Immigration Judge entered an order deporting defendant and advising him that any appeal must be filed no later than October 2, 1989. In the same Order, the Immigration Judge denied defendant the discretionary relief afforded certain aliens under § 212(c) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1182(c). The judge ruled that he did not have jurisdiction to grant such relief based on previous decisions by the Board of Immigration Appeals.

The next day, defendant filed a notice of appeal. As grounds for the appeal, defendant specifically challenged the judge's ruling on the unavailability of § 212(c) relief, claiming the judge was wrong as a matter of law. That issue was never reached because on October 24, 1989, defendant voluntarily withdrew his appeal. At all times during this process, defendant was represented by counsel.

In this collateral attack, defendant once again presses the issue he abandoned on appeal.

II

A. Collateral Attacks on Deportation Orders Allowed by the Supreme Court

In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772

(1987), the Supreme Court affirmed the validity of collateral attacks on deportation orders where the deportation order has become a significant element of a subsequent criminal offense. Due process requires that "a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review...." Id. at 839, 107 S.Ct. at 2156. "Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." Id. at 837-38, 107 S.Ct. at 2155 (citations omitted) (emphasis in original).

The Supreme Court declined to enumerate the fundamental procedural errors that would deprive an alien of judicial review. The Court noted that while procedures in administrative hearings "are less stringent than those demanded in a criminal trial, analogous abuses could operate, under some circumstances, to deny effective judicial review of administrative determinations." Id. at 839 n. 17, 107 S.Ct. at 2155 n. 17. The Immigration Judge in Mendoza-Lopez deprived the aliens of judicial review both by not adequately informing them of their right to request suspension of deportation and by accepting unknowing waivers of their right to appeal.

B. Rulings in Other Circuits

The First Circuit has not yet spoken on this issue. A glance at cases in other circuits provides a sketch of the administrative errors vulnerable to collateral attack.

The Ninth Circuit addressed this issue in two recent cases. In United States v. Villa-Fabela, 882 F.2d 434 (9th Cir.1989), an alien challenged his conviction for reentry after deportation. At his deportation hearing, no one provided Villa-Fabela with a list of available legal services in the district of his conviction, and the INS failed to inform him of his right to contact the Mexican Consulate or contact the Consulate for him. The Ninth Circuit held that these deficiencies did not deprive the alien of judicial review, did not render the proceeding fundamentally unfair, did not violate due process, did not prejudice him, and, therefore, did not preclude use of deportation to support conviction for reentry after deportation. The alien also waived his right to appeal the deportation order. The Ninth Circuit held that this waiver was knowing and intelligent. "The immigration judge advised Mr. Villa-Fabela of his right and gave him the statutorily mandated period of ten days to contemplate waiver and to initiate appeal.... Mr. Villa-Fabela expressly waived his right to appeal." Id. at 441.

The Ninth Circuit later reached the opposite result in United States v. Proa-Tovar, 945 F.2d 1450 (9th Cir.1991), reh'g granted, 966 F.2d 1277 (9th Cir.1992). Proa-Tovar appealed his conviction for violating 8 U.S.C. § 1326, arguing that he did not knowingly and intelligently waive his right to appeal the initial deportation order. In this case, the immigration judge failed to explain the right to an appeal to a group of detainees (which included Proa-Tovar) and, though counsel was present, counsel received no input from any of the twelve aliens present before stating that no appeals would be taken. The Court concluded there was no knowing waiver, and reversed the alien's conviction. Id. at 1452.

The other circuits which have examined this issue have uniformly found no due process violation in the challenged deportation proceedings. See United States v. Valdez, 917 F.2d 466, 469 (10th Cir.1990) (alien had no right to Miranda-type warning of right to remain silent in deportation hearings, and alien's waiver of right to appeal was knowing and intelligent); United States v. Palacios-Martinez, 845 F.2d 89, 92 (5th Cir.), cert. denied, 488 U.S. 844, 109 S.Ct. 119, 102 L.Ed.2d 92 (1988) (deportation hearing was not fundamentally unfair and was therefore sufficient to support alien's conviction for illegal entry following deportation, where immigration judge informed aliens of their basic rights, asked if they understood these rights, and specifically determined that none of the aliens were eligible for relief from deportation); United States v. Polanco-Gomez, 841 F.2d 235, 237 (8th Cir.1988) (alien's claim that his due process rights were violated by prior deportation hearing due to inability to understand particular dialect used by interpreter was not supported by the record, which indicated that alien responded appropriately to a variety of questions); and United States v. Zaleta-Sosa, 854 F.2d 48, 51-52 (5th Cir.1988) (because deportee was informed of his right to counsel and his right to appeal, errors in deportation hearing did not render the process fundamentally unfair).

C. Standard of Review for Collateral Attack

The Court reviews de novo Vieira-Candelario's attack on his deportation proceedings. 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).

III

A. Section 212(c) Relief from Deportation

Section 212(c) of the Act allows certain aliens to apply for discretionary relief from deportation. Only lawful permanent aliens who have resided within the United States for seven years or more are eligible for such relief.² Section 212(c) provides a "second chance" for aliens who have significant ties to the United States. The relief, though discretionary, takes into consideration family ties, duration in the United States, hardship to alien and family, service in the United States Armed Forces, history of employment, existence of property or business ties to the United States, and evidence of rehabilitation. See Matter of Marin, 16 I & N Dec. 581 (BIA 1978); Matter of Wadud, 19 I & N Dec. 182 (BIA 1984). Due to his particular circumstances, defendant believes he would have been given discretionary relief from deportation had he been given the chance to apply for it.

B. The Relationship between Deportation Relief and Exclusion

For reasons now shrouded in the depths of immigration law, § 212(c) relief is available in deportation proceedings only to aliens who have been found deportable under a ground of deportation for which there is a comparable ground of exclusion. Matter of Granados, 16 I & N Dec. 726 (BIA 1979). Lawful permanent resident aliens with over...