and (3) in 1996, for felon in possession of a firearm.
Defendant was deported in November 1996 after a mass deportation
hearing involving 21 other aliens. At the hearing, the immigration judge
("IJ") spoke to the aliens in English with the assistance of a Spanish
interpreter. The IJ spoke to the group concerning the nature of the
proceedings and offered individual hearings for those aliens who did not
wish to be deported immediately. He explained that each individual had
the right to present evidence and witnesses, and that the aliens could
avoid deportation if eligible for certain types of relief. The IJ then
explained the rights of the aliens to counsel and asked if anyone wished
to retain an attorney. One individual indicated that he did, and the IJ
granted a continuance of his case. The remaining aliens, including
defendant Andrade-Partida, indicated by their silence that they wished to
proceed without counsel.
The IJ went on to explain the rights of the aliens to appeal any
adverse decision, and then confirmed that each individual had received a
notice of his appeal rights. The IJ asked the aliens whether they
understood the right to appeal, and, by a show of hands, they all
indicated in the affirmative.
The IJ then granted a continuance to one individual who claimed that he
had received defective notice and to another who indicated his desire to
claim citizenship through his parents. The IJ then interviewed each of
the remaining aliens individually.
Defendant Andrade-Partida was the third individual questioned by the
IJ. Defendant admitted his criminal history, and the IJ concluded that
defendant was not eligible for voluntary departure. The IJ ordered
immediate deportation, and then asked defendant whether he wanted to
accept the decision or appeal. Defendant stated that he would accept the
decision. He was deported shortly thereafter.
On January 5, 1999, defendant was again found in the United States. He
was indicted on October 27, 1999, and filed this motion on February 16,
I. Statutory and Regulatory Background
Defendant argues that his deportation hearing did not comport with due
process because he was effectively denied the right to appeal the IJ's
decision. Defendant bases his argument on the interplay of three
immigration laws: 8 U.S.C. § 1326 (d), 8 U.S.C. § 1182 (c) and
8 C.F.R. § 242.17 (a). A brief explanation of the these three laws
will clarify defendant's position.
A. Section 1326(d)
Section 1326 provides criminal sanctions for aliens who reenter the
country after being deported. Subsection (d) of that provision permits a
defendant to collaterally attack his deportation order in the later
criminal case. However, to successfully challenge his deportation order,
a defendant must demonstrate that (1) he was deprived of his right to
judicial review as a result of defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the defects. See
United States v. Corrales-Beltran, 192 F.3d 1311, 1316 (9th Cir. 1999).
In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95
L.Ed.2d 772 (1987), the Supreme Court explained that, in order to serve
as the predicate for a later criminal conviction, an administrative
deportation hearing must meet certain minimum constitutional
requirements. The Court held that
where the defects in an administrative proceeding
foreclose judicial review of that proceeding, an
alternative means of obtaining judicial review must be
made available before the administrative order may be
used to establish conclusively an element of a
criminal offense. . . .
Depriving an alien of the right to have the
disposition in a deportation hearing reviewed in a
judicial forum requires, at a minimum, that review be
made available in any subsequent proceeding in which
the result of the deportation proceeding is used to
establish an element of the criminal offense.
Id. at 838-39, 107 S.Ct. 2148. The Ninth Circuit later explained that
there may be times when the deportation proceedings are "so flawed that
effective judicial review will be foreclosed." United States v.