in [the deportation] proceeding foreclose judicial review of that
However, the Ninth Circuit has repeatedly held that to challenge a
deportation successfully, a defendant must do more than show that his
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). If the Ninth Circuit had not made
this principle sufficiently clear, this Court also has espoused the
principle in two published opinions. See United States v. Esparza-Ponce,
7 F. Supp.2d 1084, 1088 (S.D.Cal. 1998); United States v.
Pantoja-Valderama, No. 97-2050-R, 1997 WL 856119, at *4 (S.D.Cal.
Nov.24, 1997), aff'd, 165 F.3d 919 (9th Cir. 1998).
In addition to deprivation of the opportunity for judicial review,
§ 1326 allows collateral attack of a deportation order only if the
defendant demonstrates (1) exhaustion of "any administrative remedies
that may have been available to seek relief after the order," and (2) the
fundamental unfairness of the IJ's order. See 8 U.S.C. § 1326(d).
Defendant's collateral attack on his deportation order fails for
several reasons. First, there is no indication to the Court that the IJ's
statement that he could not look behind the state conviction was untrue
in the context of the hearing. Defendant does not claim to have raised an
"egregious violation of the Fourth Amendment" at the deportation
hearing. If the IJ's statement had been in response such an argument, it
would have been a misstatement of the law. See Orhorhaghe, 38 F.3d at
493. According to Defendant, however, the IJ's statement followed
Defendants protestations of innocence. As such, Defendant's own cited
authority establishes that it was an accurate statement of the law. See
In re Cervantes, Int. Dec. 3380, 1999 WL 332842, at n. 3 (BIA 1999)
(holding that an IJ "may not go behind the conviction to determine the
guilt or innocence of an alien").
Second, even if the IJ had misstated the law, this would not eliminate
Defendant's right to obtain judicial review. Judicial error is not an
uncommon occurrence, and, rather than foreclosing the right of r"view, is
the very reason for filing an appeal. If Defendant disagreed with the
IJ's deportation order, he should have sought review with the Board of
Defendant's failure to appeal constitutes a third reason to deny his
motion: Defendant has not exhausted his administrative remedies as
required by § 1326(d). Defendant argues that his waiver of appeal
cannot constitute failure to exhaust administrative remedies because it
was not "considered and intelligent." See United States v.
Estrada-Torres, 179 F.3d 776, 778 (9th Cir. 1999) (holding that due
process requires a "considered and intelligent" waiver of appeal). As the
Court has noted, however, the IJ's statement that he could not look
behind the conviction was accurate with respect to Defendant's claim of
innocence. Moreover, even if the IJ had misstated the law, this would not
render Defendant's waiver unintelligent. For example, Defendant does not
dispute the government's contention that he was given notice of his right
to appeal the IJ's deportation order. An alleged misstatement of
immigration law by the IJ has no bearing on Defendant's ability or
obligation to exhaust his administrative remedies.
Defendant also argues that prosecution for illegal reentry would
violate his Sixth Amendment right to counsel, since he was not
represented by an attorney in conjunction with the prior deportation. In
proffering such an argument, Defendant relies on the principles
articulated in Baldasar v. Illinois, 446 U.S. 222, 223-24, 100 S.Ct.
1585, 64 L.Ed.2d 169 (1980) (holding that a defendant's prior uncounseled
misdemeanor conviction could not be used to enhance a subsequent
conviction from a misdemeanor to a felony).
Defendant's reliance on Baldasar, however, is misplaced, as Baldasar
was expressly overruled by Nichols v. United
States, 511 U.S. 738, 748, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) ("Today
we adhere to Scott v. Illinois, supra, and overrule Baldasar.").*fn7
Moreover, even assuming arguendo that Baldasar remains good law, its
principles do not apply to the case at hand. In Baldasar, the Supreme
Court held that a prior, uncounseled misdemeanor conviction*fn8 could
not be used to enhance a subsequent misdemeanor conviction into a felony
(punishable by imprisonment) because to do so would violate the
defendant's Sixth Amendment right to counsel in the first action.
Baldasar; 446 U.S. at 223, 228, 100 S.Ct. 1585. In the present case,
however, an element of the crime for which Defendant has been indicted is
a prior, uncounseled civil proceeding, not a criminal conviction. See
Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977) (a deportation hearing
is a civil proceeding). Respondents at deportation hearings are not
constitutionally entitled to have counsel provided. See Perez v. INS,
116 F.3d 405, 409 (9th Cir. 1997). Therefore, because Defendant had no
right to counsel whatsoever to assist him with his administrative
removal, using this prior, uncounseled deportation to subsequently
"enhance" sentencing for a later violation would not run afoul of
Furthermore, the Ninth Circuit has already considered, and, rejected,
Defendant's argument that using an uncounseled deportation as an element
of a § 1326 offense violates the Sixth Amendment. See United States
v. Gomez-Gutierrez, 140 F.3d 1287, 1289 (9th Cir. 1998) (holding that
prior uncounseled deportation could be used in prosecution for illegal
reentry); United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975)
(same), overruled on other grounds by United States v. Mendoza-Lopez,
481 U.S. 828, 834-35 n. 9, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).
Therefore, in light of this controlling precedent, Defendant's motion to
dismiss the § 1326 charge is denied.
C. Motion to Sever the Indictments
Having upheld the indictments, the Court now turns to the issue of
whether they should be severed for trial. Defendant argues that the
indictments should be severed due to the risk of unfair prejudice from
the admission of evidence at a joint trial that would be excluded from
separate trials. The Court agrees and severs the indictments for trial.
Rule 13 of the Federal Rules of Criminal Procedure provides that "[t]he
court may order two or more indictments . . . to be tried together if the
offense . . . could have been joined in a single indictment." Rule 8(a)
permits joinder of offenses in an indictment when the offenses "are of the
same or similar character or are based on the same act or transaction or
on two or more acts or transactions connected together or constituting
parts of a common scheme or plan." Fed.R.Crim.P. 8(a). Severance of joined
offenses should be granted when joinder "allows evidence of other crimes
to be, introduced in a trial of charges with respect to which the
would otherwise be inadmissible." United States v. Lewis, 787 F.2d 1318,
1321 (9th Cir. 1986).
Here, reentry of a deported alien and possession of a controlled
substance are unrelated and independent crimes that happened to be
detected by agents on the same date. In a prosecution for illegal
reentry, evidence of drug dealing would be irrelevant and unfairly
prejudicial to Defendant. To establish a violation of § 1326, the
government must prove only that: (1) Defendant is an alien; (2) Defendant
was deported; and (3) Defendant reentered the United States without the
consent of the Immigration and Naturalization Service. See 9th Cir.Crim.
Jury Instr. 9.5 (2000). Evidence of Defendant's alleged drug possession
is not only irrelevant, it can only serve to cloud the juror's
deliberations and prejudice them against Defendant. The Court therefore
orders that the indictments shall be severed for trial.
For the reasons set forth above, the Court denies Defendant's motions
to dismiss the indictments and grants Defendant's motion to sever the
indictments for trial. The Court will continue to hold consolidated
hearings for pretrial motions, but the charges in each of the two
indictments will be tried independently.