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August 28, 2000


The opinion of the court was delivered by: Breyer, U.S. District Judge.


Now before the Court is defendant's motion to dismiss the charge against him. Defendant Lorenzo David Andrade-Partida is charged with one count of illegal reentry in violation of 8 U.S.C. § 1326. Defendant was deported from the United States on November 26, 1996, and was found in the country again in 1999. He alleges that his 1996 deportation bearing was fundamentally unfair because the presiding immigration judge effectively denied him the right to appeal his deportation order to the Board of Immigration Appeals and the federal court of appeals.


Defendant entered the United States in the 1970's, and has lived in this country for most of his life. Prior to his deportation, he was convicted of three felonies in the United States: (1) in 1991, for receiving stolen property; (2) in 1994, for accessory; 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, 2000.


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. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992).

In 1996, Congress responded to the Court's mandate by amending section 1326. Subsection (d) of that provision now precludes a defendant from collaterally attacking his deportation order unless (1) he exhausted any administrative remedies that were available to seek relief against the order; (2) the deportation proceeding improperly denied him the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326 (d). To determine whether section 1326(d) prevents collateral attack, the district court must examine the underlying deportation hearing to determine whether the deportee was denied the right to judicial review.

Although an alien in a deportation hearing may waive his right to appeal his deportation order, any such waiver must be "considered and intelligent." United States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993). If the waiver is not voluntary, the deportee has been deprived of his right to due process in the deportation hearing. Id. The Ninth Circuit has explained that a waiver of appeal is not valid where the immigration judge seeks a mass waiver by silence from a group of aliens, United States v. Gonzalez-Mendoza, 985 F.2d 1014, 1017 (9th Cir. 1993), or where an attorney representing a large group of aliens waives the appellate rights of the entire group without any individualized discussion. Proa-Tovar, 975 F.2d at 594. Even if the immigration judge explains the right to appeal to the aliens as a group, the waiver is insufficient unless the judge asks each deportee individually whether he wants to waive his appellate rights. See United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). The Ninth Circuit has instructed that the Court should "indulge every reasonable presumption against waiver." Lopez-Vasquez, 1 F.3d at 753 (quoting Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

B. Section 212(c)

The second statute relevant to defendant's motion is section 212(c) of the Immigration and Naturalization Act, codified at 8 U.S.C. § 1182 (c). Prior to the passage of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), section 212(c) permitted the Attorney General to grant relief from deportation to certain aliens. See Castillo-Felix v. INS, 601 F.2d 459, 462 (9th Cir. 1979). Specifically, section 212(c) gave the Attorney General discretion to grant relief to an alien who had been a lawful permanent resident of the United States for seven years and for whom equity demanded relief from deportation. See Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995). In determining whether to grant relief, the Attorney General balanced a number of factors, including the deportee's criminal record, family relationships, employment history, community service and moral character. See id.

In 1996, Congress passed the AEDPA, which severely restricted the availability of discretionary relief from orders of deportation. Specifically, the AEDPA eliminated the availability of discretionary relief to aliens who had been convicted of certain crimes.*fn1 As discussed below, the parties ...

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