USA v. Martinez

• Decision Date: 13 April 2000
• Docket Number: GARCIA-MARTINE,D,No. 99-50546,99-50546
• Citation: 228 F.3d 956
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AURELIOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 956

228 F.3d 956 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AURELIO GARCIA-MARTINEZ, Defendant-Appellant.

No. 99-50546

U.S. Court of Appeals for the Ninth Circuit

Submitted April 13, 2000^*

Filed October 3, 2000

[Copyrighted Material Omitted] Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Sam T. Liccardo, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-98-03473-BTM

Before: Ferdinand F. Fernandez and Kim McLane Wardlaw, Circuit Judges, and Charles R. Weiner,^** District Judge.

WARDLAW, Circuit Judge:

Aurelio Garcia-Martinez appeals his conviction, upon a conditional guilty plea, on one count of being a deported alien found in the United States in violation of 8 U.S.C.S 1326. Garcia-Martinez collaterally attacks the prior deportation order upon which his conviction rested, contending that his expedited administrative removal for being an aggravated felon violated the Due Process Clause of the Fifth Amendment. He claims that the Immigration and Naturalization Service enforcement officer who adjudicated the removal order was institutionally biased. We have jurisdiction under 28 U.S.C. S 1291. Because there was no institutional bias and, in any event, Garcia-Martinez failed to show actual prejudice from the asserted procedural defect, we affirm.

I. Background

This case arises from Garcia-Martinez's November 18, 1998 arrest by United States Border Patrol agents, after which he admitted that he was a Mexican citizen present in the United States without permission. Earlier that year, on June 26, 1998, while Garcia-Martinez was in custody at Centinela State Prison in Imperial, California, the INS served him with a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"). INS Officer A. Neil Clark, the issuing service officer,¹ signed the Notice of Intent. It charged Garcia-Martinez with having entered the United States on January 1, 1993, without inspection and without having been lawfully admitted for permanent residence. Garcia-Martinez also was charged with a February 7, 1994 conviction in California Superior Court of the offense of sexual intercourse by means of force, violence, and fear, in violation of section 261 of the California Penal Code, for which he was sentenced to eight years' imprisonment.

The Notice of Intent further stated that Garcia-Martinez was deportable because "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable," 8 U.S.C. S 1227(a)(2)(A)(iii), and Garcia-Martinez's California conviction was for an "aggravated felony. " See 8 U.S.C. S 1101(a)(43). The Notice of Intent informed Garcia-Martinez that he was subject to an expedited administrative removal proceeding under 8 U.S.C. S 1228(b), that he could choose to be represented by counsel at the proceeding, and that he had ten calendar days within which to respond in writing to the charges against him.²

Garcia-Martinez signed and dated the Notice of Intent on June 26, 1998, the same day it was served. Garcia-Martinez also signed the "I do not wish to contest" portion of the Notice of Intent, admitting the charges that he was deportable and that he was ineligible for any relief from removal. He waived the fourteen-day period for execution of the final removal order.

The same day, INS Officer Hector Najera, Jr., the deciding Service officer,³ signed a Final Administrative Removal Order ("Removal Order"). Ten days later, the INS removed GarciaMartinez from the United States to Mexico, through the Calexico, California Port of Entry.

On December 2, 1998, following his November arrest, the United States filed a one-count indictment against GarciaMartinez in the Southern District of California, charging him with being a deported alien found in the United States in violation of 8 U.S.C. S 1326. Garcia-Martinez moved to dismiss the indictment in the district court. He argued that entry of the 1998 order of deportation was fundamentally unfair. Specifically, he contended that the expedited removal proceeding violated his due process rights under the Fifth Amendment. Therefore, he argued, the government could not rely on the order to satisfy the prior deportation element of the Section 1326 charge.

The district court denied the motion to dismiss. It held that neither the statute governing the expedited removal procedure, 8 U.S.C. S 1228, nor its implementing regulation, 8 C.F.R. S 238.1, was facially unconstitutional because the statutory scheme allowed the INS discretion to provide aliens a full removal hearing before an immigration judge, which the INS permits whenever an alien contests the removal charges. The district court found that Garcia Martinez's "waiver of a deportation hearing was not knowing or intelligent " because he was never informed that he could proceed before an immigration judge and the INS failed to provide him with a list of available free legal services. It concluded, however, that "Garcia-Martinez has not shown, and under the circumstances of his case cannot show, that he suffered prejudice from the defects in his removal proceeding."⁴ Thus, the government was entitled to rely upon Garcia-Martinez's prior deportation for its Section 1326 charge.

On May 21, 1999, Garcia-Martinez entered a conditional plea of guilty to the one-count indictment. On June 24, 1999, the district court sentenced Garcia-Martinez to thirty-seven months in custody and three years of supervised release. This timely appeal followed.

II. Fundamental Fairness

Garcia-Martinez contends that the district court erred in rejecting his due process challenge to expedited removal. A defendant charged under 8 U.S.C. S 1326 may not collaterally attack the underlying deportation order unless the order is fundamentally unfair. See 8 U.S.C. S 1326(d).⁵ GarciaMartinez contends the INS violated his due process rights by unconstitutionally applying the expedited removal procedures set forth in 8 U.S.C. S 1228 and 8 C.F.R.S 238.1. We review de novo Garcia-Martinez's "claim that defects in the underlying deportation procedure invalidated the proceeding for use in his criminal proceedings." United States v. CorralesBeltran, 192 F.3d 1311, 1313 (9th Cir. 1999). GarciaMartinez "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." United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). We address each of these requirements in turn.

A. Due Process

Garcia-Martinez argues that his removal pursuant to 8 U.S.C. S 1228 cannot be used as an element of the offense of illegal re-entry after removal under 8 U.S.C. S 1326 because that removal was rendered in a proceeding conducted by an adjudicator inherently biased due to his daily enforcement activities. To evaluate this contention, we first review the expedited administrative removal procedure to which Garcia-Martinez was subjected.

Where, as here, an illegal alien has been convicted of an aggravated felony, the Attorney General may commence deportation proceedings. See 8 U.S.C. S 1228(b). Proceedings under Section 1228(b) are governed by regulations promulgated by the Attorney General and set forth in 8 C.F.R. S 238.1. Under 8 C.F.R. S 238.1, removal proceedings commence when an issuing Service officer determines that sufficient evidence supports removal and serves the alien with a Notice of Intent. See 8 C.F.R. S 238.1(b)(1).⁶ If, as here, the alien concedes deportability, a "deciding Service officer shall issue and cause to be served upon the alien a Final Administrative Removal Order that states the reasons for the deportation decision." 8 C.F.R. S 238.1(d)(1). A deciding Service officer may not be "the same person as the issuing Service officer." 8 C.F.R. S 238.1(a).

Garcia-Martinez argues that deciding Service officers, as INS enforcement employees, are inherently biased adjudicators. Although we have not addressed the question of institutional bias in the context of expedited removal proceedings conducted by deciding Service officers under 8 U.S.C. S 1228, we have considered the issue on review of deportation orders issued after full immigration hearings. See LeTourneur v. INS, 538 F.2d 1368 (9th Cir. 1976); Hosseinmardi v. INS, 405 F.2d 25 (9th Cir. 1968). In that context, we rejected the contention that because the immigration judge "is under the supervision of Immigration and Naturalization Service officers who perform prosecuting and investigative functions, due process may be violated." LeTourneur, 538 F.2d at 1370; accord Hosseinmardi, 405 F.2d at 27-28. We conclude that the argument similarly lacks merit in the context of expedited removals.

One other circuit has addressed this issue, and we find its reasoning persuasive. See United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999) cert. denied, U.S., 120 S. Ct. 838 (2000) (No. 99-7193). In Benitez-Villafuerte, the Fifth Circuit considered whether "the INS impermissibly functioned in both a prosecutorial and an adjudicative capacity during the S 1228 proceeding." Id. at 659. Relying primarily on Marcello v. Bonds, 349 U.S. 302, 311 (1955), the Fifth Circuit held that this allegation of institutional, structural bias was "wholly devoid of merit." Id.

We agree with the Fifth Circuit that Marcello is instructive. In Marcello, the Supreme Court rejected the argument that a deportation hearing violated due process because the INS special inquiry officer who conducted the hearing "was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions." Marcell...