USA v. Arrieta

• Decision Date: 05 June 2000
• Docket Number: Nos. 99-50368,99-50422,s. 99-50368
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. JUAN MARIO ARRIETA, Defendant-Appellant-Cross-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1076

224 F.3d 1076 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. JUAN MARIO ARRIETA, Defendant-Appellant-Cross-Appellee.

Nos. 99-50368, 99-50422

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 5, 2000--Pasadena, California

Filed September 25, 2000

[Copyrighted Material Omitted]

COUNSEL: Elizabeth A. Newman and Amy Fan Saint Martin, Deputy Federal Public Defenders, Office of the Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Jean Rosenbluth, Assistant United States Attorney, United States Attorney's Office, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California D.C. No. CR-98-01050-JSL-1

Before: Warren J. Ferguson, Robert Boochever, and Stephen Reinhardt, Circuit Judges.

OPINION

FERGUSON, Circuit Judge:

Defendant Juan Mario Arrieta appeals his conviction for reentering the United States after being deported, in violation of 8 U.S.C. S 1326. Mr. Arrieta claims that the district court erred when it denied his motion to dismiss the indictment because his underlying deportation was invalid. We have jurisdiction pursuant to 28 U.S.C. S 1291 and REVERSE.

I. BACKGROUND

Mr. Arrieta first entered the United States in 1986 when his mother brought him here at the age of nine. Ten years later, in 1996, Mr. Arrieta was convicted in California of attempted forcible rape and sentenced to serve one year in a county jail.

Upon his release, the Immigration and Naturalization Service ("INS") instituted deportation proceedings against Mr. Arrieta. In May 1997, Mr. Arrieta and 13 other aliens appeared before an immigration judge ("IJ") for a group deportation hearing. During the hearing, the IJ informed the group that they had the right to "present evidence,""call witnesses," and "show me documents." In addition, he told the group that if they disagreed with his decision, they could "appeal the case to a higher court." The IJ also informed the group that if they did not appeal their case, then the decision was final. When the IJ asked if they understood these rights, they collectively answered "Yes."

Subsequently, the IJ addressed Mr. Arrieta individually and asked him whether he understood the rights he had explained to the group. Mr. Arrieta answered that he did. Mr. Arrieta then admitted that (1) he was not a citizen of the United States; (2) he was convicted in California of a serious offense; and (3) he had entered the United States illegally. Based on these facts, the IJ ordered that Mr. Arrieta be deported. The IJ then asked Mr. Arrieta whether he accepted his decision or whether he wanted to appeal the decision. Mr. Arrieta responded that he accepted his decision. Accordingly, the IJ stated that his order was final, and Mr. Arrieta was deported.

In October 1998, Mr. Arrieta was arrested and charged with reentering the United States following deportation in violation of 8 U.S.C. S 1326. Prior to pleading guilty, Mr. Arrieta filed a motion to dismiss the indictment based on his belief that the underlying deportation proceeding violated his right to due process. The district court disagreed and denied the motion. Mr. Arrieta filed a timely notice of appeal.

II. DISCUSSION

"In a criminal prosecution under S 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation."

United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998) cert. denied, 525 U.S. 849 (1998). If the defendant's deportation proceedings fail to provide this opportunity, the validity of the deportation may be collaterally attacked in the criminal proceeding. Id. The defendant "can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." Id.

A. Due Process Violation

In a criminal proceeding, an alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. See United States v. EstradaTorres, 179 F.3d 776, 780-81 (9th Cir. 1999). In order for the waiver to be valid, however, it must be both "considered and intelligent." Id.; See United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987).

In this case, Mr. Arrieta argues persuasively that he could not make a considered and intelligent decision about his right to appeal because the IJ never informed him of his eligibility for a S 212(h) waiver. See 8 U.S.C. S 1182(h). We have stated that where the record contains an inference that the petitioner is eligible for relief from deportation,"the IJ must advise the alien of this possibility and give him the opportunity to develop the issue." Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir. 1989). Indeed, we have found this requirement to be "mandatory." United States v. ArceHernandez, 163 F.3d 559, 563 (9th Cir. 1998). In ArceHernandez, the IJ erred by failing to advise the alien of his right to apply for relief from deportation. See id. at 563. In that case, we recognized that the defect was a due process violation that deprived the alien of judicial review, presumably because an alien who is not made aware that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact that he was not advised of that right. See id.

In this case, Mr. Arrieta was deprived of exactly the same opportunity as Mr. Arce-Hernandez, and thus was denied due process and a meaningful opportunity for judicial review.

Here, the IJ should have known that Mr. Arrieta was eligible to apply for a S 212(h) waiver since the record establishes that his mother is a lawful permanent resident and that his daughter is a citizen. The IJ, however, never mentioned the S 212(h) waiver or any other possible mechanism to obtain relief from deportation. Without this information, Mr. Arrieta, who was not represented by counsel, could not make a considered and intelligent decision about whether to apply for a S 212(h) waiver, and could not make a considered and intelligent decision about whether to appeal the IJ's deportation order. Based on this defect in the underlying deportation proceedings, we find that Mr. Arrieta's waiver of the right to appeal was invalid.

B. Prejudice

The next issue is whether Mr. Arrieta was prejudiced by the defect in the deportation proceeding. In order to establish prejudice, Mr. Arrieta does not have to show that he actually would have been granted relief. Instead, he must only show that he had a "plausible" ground for relief from deportation. Arce-Hernandez, 163 F.3d at 563; United States v. JimenezMarmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996).

Mr. Arrieta argues that, based on his family situation, he might have been granted a S 212(h) waiver. In order to obtain a S 212(h) waiver, the alien must demonstrate that his deportation would cause "extreme hardship" to a "spouse, parent or child" who is a citizen or lawful permanent resident. 8 U.S.C. S 1182(h). The government contends that Mr. Arrieta cannot demonstrate that he was eligible for a waiver. It asserts that he did not have a plausible basis forS 212(h) relief, because the conviction underlying his deportation was an aggravated felony and because, as a matter of law, he did not show that his deportation would be an "extreme hardship" for his family. We reject both of the government's contentions, and agree with Mr. Arrieta that he "plausibly" could have received a S 212(h) waiver.

The government, citing 8 U.S.C. S 1228, contends that aliens who have been convicted of aggravated felonies are not eligible for S 212(h) relief. The bar to discretionary relief under S 1228, however, applies only to aliens "described in this section." S 1228(b)(5). Section 1228, titled "Expedited Removal of Aliens Convicted of Committing Aggravated Felonies," has four subsections, and it is not clear from the text of S 1228 which aliens are the aliens "described in this section." For example, S 1228(a) concerns aliens in "special [expedited] removal proceedings at certain . .. correctional facilities." Mr. Arrieta's deportation proceeding did not take place under these special procedures. Subsection (b)(2) concerns aliens not lawfully admitted to the United States, and subsection (b)(1) sets up expedited administrative removal procedures for such aliens. S 1228(b). While Mr. Arrieta was not lawfully admitted, he was not removed under the special S 1228(b)(1) procedures. The first subsection (c)¹ creates a presumption that aliens convicted of aggravated felonies are deportable, and it does not purport to limit the scope of its reach. On its face, the text of S 1228(b)(5) could conceivably refer to all aggravated felons, or it could be read, more in accord with its apparent intent, to refer only to aggravated felons who are processed through expedited removal processes. For the reasons explained below, we conclude that it means the latter.

While the text of S 1228, standing alone, does not define clearly the scope of the limitation on discretionary relief contained in S 1228(b)(5), its meaning becomes clear when we view the section as only one part of a larger statute. See Kokoskza v. Belford, 417 U.S. 642, 650 (1974) (looking to the whole act to determine the meaning of a specific provision). The discretionary relief at issue in this case, aS 212(h) waiver, contains its own limitation with regard to aggravated felons. It prohibits an alien convicted of an aggravated felony who has "previously been admitted to the United States as an alien lawfully admitted for permanent residence" from receiving relief. S 212(h). Based on a plain reading of this prohibition, the Board of Immigration Appeals has held that the S 212(h) limitation applies only to lawful permanent residents, and not to other aliens convicted...