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,
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.
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
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)).
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