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UNITED STATES v. ESPARZA-PONCE

May 18, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
CECILIO ESPARZA-PONCE, Defendant.



The opinion of the court was delivered by: RHOADES

AMENDED ORDER ADDRESSING PRETRIAL MOTIONS *fn1"

 I. Overview

 Defendant has filed motions (1) to dismiss the indictment; (2) to suppress statements; (3) to compel discovery; and (4) for leave to file further motions. The government has filed motions for reciprocal discovery and for fingerprint exemplars.

 For the reasons stated below, Defendant's motion to dismiss is denied. Defendant's motion to suppress is denied in part and deferred in part. Defendant's motion to compel discovery is deferred. Defendant's motion for leave to file further motions is denied without prejudice. The government's motions are granted.

 II. Background2

 Defendant Cecilio Esparza-Ponce, a Mexican citizen, legally resided in the United States. On May 22, 1986, Defendant was convicted of petty theft in violation of California Penal Code sections 484 and 488. On that date, Defendant also was convicted of battery, in violation of California Penal Code section 242. Less than seven months later, Defendant was convicted of attempted first-degree burglary, in violation of California Penal Code sections 459 and 664.

 Because of Defendant's convictions, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against him. Defendant retained counsel. On July 6, 1994, Defendant appeared before an immigration judge but, because of a breakdown in communication, his attorney did not appear. Accordingly, the immigration judge decided to postpone the hearing until October 13, 1994.

 Before adjournment, however, Defendant expressed a desire to apply for discretionary relief from deportation. The immigration judge told Defendant to apply for discretionary relief in writing by August 14, 1994. The immigration judge warned Defendant that if he did not file the paperwork, the request for discretionary relief would be deemed abandoned.

 Defendant never applied in writing. On September 12, 1994 -- prior to the hearing -- the immigration judge ordered Defendant deported. Thus, quite apart from the fact that Defendant had procedurally defaulted on his request for discretionary relief, Defendant never got a chance to contest the merits of the charge of deportability. The INS deported him on October 10, 1997.

 That same day, Defendant attempted to reenter the United States, falsely claiming American citizenship. Border patrol agents questioned him and, becoming suspicious, checked his criminal and immigration records. After discovering that Defendant had been deported and had a criminal record, the agents allegedly read him his Miranda rights, which Defendant allegedly waived. Defendant then made incriminating statements.

 On December 10, 1997 a federal grand jury returned a one-count indictment that charged Defendant with attempting to reenter the United States after being deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). *fn3" The indictment alleged that the aggravated felony was petty theft with a prior conviction. *fn4" Defendant pleaded not guilty.

 III. Discussion

 Defendant has filed four pretrial motions that are now before the Court. First, Defendant asks the Court to dismiss the indictment. Second, Defendant moves the Court to suppress statements he made to the border patrol agents. Third, Defendant seeks additional discovery materials from the government. Fourth, Defendant seeks leave to file further motions. The government has asked for reciprocal discovery and fingerprint exemplars.

 The Court will discuss each motion in turn.

 A. Defendant's Motion To Dismiss The Indictment

 Defendant argues that the Court should dismiss the indictment for three reasons. First, Defendant argues that his deportation violated his due process rights. Second, Defendant argues that the indictment fails to allege an aggravated felony. Third, Defendant argues that § 1326 is unconstitutional.

 1. Whether The Court Should Dismiss The Indictment Because Defendant's Deportation Violated His Due Process Rights

 Defendant first argues that the Court should dismiss the indictment because his deportation violated his due process rights. Specifically, Defendant argues that the INS failed to give him a hearing and failed to advise him of his right to appeal the deportation order.

 In general, a defendant in a § 1326 prosecution may not attack the legality of the defendant's deportation. See United States v. Villasenor-Cesar, 114 F.3d 970, 972 n.1 (9th Cir. 1997) (holding that the lawfulness of the deportation is not an element of the offense); United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir. 1996) (same), cert. denied, 117 S. Ct. 1096, and cert. denied, 117 S. Ct. 1097 (1997). Nevertheless, if and only if "the deportation proceeding was so procedurally flawed that it effectively eliminated the right of an alien to obtain judicial review," then the defendant may attack the deportation before trial and, if successful, preclude the government from relying on it. Alvarado-Delgado, 98 F.3d at 493; see also 8 U.S.C. § 1326(d) (providing that a defendant may not attack the validity of the deportation order unless the defendant was deprived of the right to judicial review of that order); United States v. Mendoza-Lopez, 481 U.S. 828, 839, 95 L. Ed. 2d 772, 107 S. Ct. 2148 (1987) (holding that the government may not rely on a deportation order if "defects in [the deportation] proceeding foreclose judicial review of that proceeding").

 However, the Ninth Circuit has held that to challenge a deportation successfully, a defendant must do more than show that the defendant's rights were violated. Rather, "to challenge his prior deportation . . . , [Defendant] must prove prejudice as a result of the error." Alvarado-Delgado, 98 F.3d at 493; see also United States v. Leon-Leon, 35 F.3d 1428, 1431-32 (9th Cir. 1994). *fn5"

 As discussed below, it appears that although the INS may have violated Defendant's right to contest the charge of deportability, the INS did not violate his right to appeal the deportation order. Moreover, even assuming that the INS violated his right to appeal, Defendant has failed to show prejudice.

 a. Whether The INS Deprived Defendant Of His Right To Appeal

 Defendant argues that the INS violated his right to appeal the deportation order because it never informed him of his right to appeal. Defendant is mistaken.

 The government has submitted a copy of a letter that the INS mailed to Defendant when it mailed him the deportation order. The letter advised Defendant of his right to appeal, and even enclosed the forms with which to do so. (See Pl.'s Supp. Br. Ex. A.) Thus, the INS did not fail to advise Defendant of his right to appeal. Defendant therefore cannot attack his deportation now. See 8 U.S.C. § 1326(d).

 b. Whether Defendant Has Shown Prejudice

 Moreover, even assuming that the INS violated Defendant's right to appeal, Defendant has not shown prejudice (an issue on which he bears the burden of proof). See United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). To show prejudice, Defendant must show "'plausible grounds of relief which might have been available to him but for the deprivation of rights.'" Id. (quoting Leon-Leon, 35 F.3d at 1432).

 Defendant argues that he suffered prejudice in two primary ways. First, Defendant claims that the INS improperly ordered him deported without a hearing, and that therefore the Board of Immigration Appeals ("BIA") would have vacated the deportation order. Defendant seems to argue that this fact, in and of itself, shows prejudice. Second, Defendant argues that if the BIA had vacated the deportation order and instructed the immigration judge to hold a deportation hearing, Defendant could have prevailed at that hearing.

 The Court will address each of these arguments in turn.

 i. Whether The Fact That The Deportation Order May Have Been Vacated Establishes Prejudice

 Defendant argues that the immigration judge committed reversible error by deporting him without a hearing. See 8 U.S.C. § 1252(b) (providing that "determination of deportability in any case shall be made only upon a record made in a proceeding . . . at which the alien shall have reasonable opportunity to be present . . . ."); Leon-Leon, 35 F.3d at 1431 n.2 (holding that "an alien is entitled to be physically present at a deportation hearing"). *fn6" Because the immigration judge may have erred, Defendant had plausible grounds to prevail on appeal. In a limited sense, therefore, Defendant has shown prejudice.

 In a larger sense, however, Defendant has not shown prejudice from these facts. If Defendant had appealed the order, undoubtedly the BIA would have remanded the case with instructions to hold a deportation hearing. If Defendant could not have prevailed at the subsequent hearing, then the fact that he secured a reversal of the deportation order ultimately would not have helped him. Cf. Leon-Leon, 35 F.3d at 1431 (holding that prejudice does not exist if "the lack of a direct appeal only resulted in [the alien] leaving at a somewhat earlier time because he would have been deported anyway" (internal quotation marks and citation omitted)).

 The question thus becomes whether Defendant has shown that he had plausible grounds to prevail at the hearing that he never got. Defendant argues that he could have prevailed on three grounds. First, Defendant argues that he may have successfully contested the evidence against him. Second, Defendant argues that the immigration judge erred by concluding that he was deportable on the grounds that he had committed a crime of moral turpitude. Third, Defendant argues that even if he was not entitled to remain in the United States, he may have been able to receive discretionary relief from deportation.

 The Court will address each of these arguments separately.

 ii. Whether Defendant Was Prejudiced By Not Being Able To Contest The Evidence Against Him

 In support of its charge of deportability, the INS submitted documents that evidenced Defendant's criminal convictions. Defendant argues that because he never had his hearing, he never had a chance to contest the authenticity of these documents. Thus, Defendant argues, he was prejudiced.

 This argument fails. Arguing that Defendant never had an opportunity to contest the evidence is the same as arguing that he never got a hearing. This says nothing about whether Defendant was prejudiced from not getting a hearing.

 Defendant argues, however, that he is not "aware of" any evidence before the immigration judge that indicated that he was an alien. (Def.'s Supp. Mot. to Dismiss at 2.) This assertion does not show prejudice; at most it shows ignorance.

 Defendant has never argued that he was not deportable as charged. Under these circumstances, Defendant has not shown prejudice.

 iii. Whether Petty Theft Is A Crime Of Moral Turpitude

 Defendant next argues that the immigration judge may have erroneously determined that he was deportable because of a conviction for a crime of moral turpitude. In the deportation order, the immigration judge determined that petty theft is a crime of moral turpitude. See Def.'s Supp. Mot. Ex. A at 3.) The Ninth Circuit, however, has never reached such a conclusion. See Morales-Alvarado v. INS, 655 F.2d 172, 174 n.1 (9th Cir. 1981) (noting that petty theft may or may not be a crime of moral turpitude). Thus, Defendant argues, the immigration judge's decision was erroneous, and Defendant may have successfully challenged it at the deportation hearing or on a subsequent appeal. Therefore, Defendant argues, he has shown prejudice.

 This argument fails for one simple reason: Petty theft is a crime of moral turpitude. See Soetarto v. INS, 516 F.2d 778, 780 (7th Cir. 1975) (noting that "theft has always been held to involve moral turpitude, regardless of . . . the amount stolen); Ablett v. Brownell, 99 U.S. App. D.C. 387, 240 F.2d 625, 630 & n.11 (D.C. Cir. 1957) (collecting cases and holding that "petty theft . . . does involve moral turpitude within the meaning of the immigration laws").

 iv. Whether Defendant Could Have Received Discretionary Relief

 Defendant next argues that even if the immigration judge had found him deportable, Defendant could have received discretionary relief from ...


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