The opinion of the court was delivered by: Walker, U.S. District Judge.
Petitioner was deported in 1997 and illegally reentered shortly
thereafter. The Immigration and Naturalization Service (INS) reinstated
petitioner's previous order of deportation and plans to deport petitioner
on December 22, 2000. Petitioner seeks collaterally to attack the
legality of his prior order of deportation in light of legal developments
occurring after his previous order became final. The court must determine
whether INA section 241(a)(5), 8 U.S.C. § 1231 (a)(5), precludes
such an attack and if so whether the provision is constitutional.
Petitioner is a native and citizen of El Salvador. He immigrated to the
United States and was admitted on or about July 28, 1977. On or about
June 17, 1993, petitioner was charged by the INS with being deportable
under INA former section 241(a)(2)(A)(ii) because petitioner had been
convicted of two crimes involving moral turpitude not arising out of a
single scheme of criminal conduct. About a year later, petitioner applied
for a waiver of deporation under INA former section 212(C). At a hearing
before an Immigration Judge (IJ) on June 16, 1997, petitioner's
application for 212(c) relief was pretermitted on the on the grounds that
section 440(d) of the Anti-Terrorism and Effective Death Penalty Act
(AEDPA), Pub L No 104-132, 100 Stat 1214 (1996), precluded 212(c) relief
for any person convicted of an aggravated felony. At the hearing, the IJ
ordered petitioner deported to El Salvador. Petitioner declined to appeal
that decision and was deported to El salvador on June 20, 1997.
Five months later, in November 1997, petitioner reentered the United
States. He was discovered by an INS agent on or about July 20, 1999, in
San Francisco county jail. On July 25, 1999, petitioner was given notice
of the Attorney General's intent to reinstate his prior deportation
order. On January 18, 2000, that prior order was reinstated. Meanwhile,
on December 27, 1999, the Ninth Circuit decided Magana-Pizano v. INS,
200 F.3d 603 (9th Cir. 1999). Magana-Pizano held that AEDPA section
440(d), which eliminated 212(c) for aggravated felons, should not be
applied to persons in deportation proceedings when the provision was
enacted on April 24, 1996. Petitioner had been in proceedings at that
INA section 241(a)(5), 8 U.S.C. § 1231 (a)(5), states:
Petitioner presents two arguments why this section does not apply to
him. First, petitioner argues that since the section refers to "orders of
removal" rather than "orders of deportation," it was not meant to apply
to him. This argument must be rejected. In IIRIRA section 309(d)(2),
Congress defined "order of removal" to "include a reference to an order
and deportation or an order of deportation." 110 Stat 3009-627; see also
Prado Hernandez v. Reno, 86 F. Supp.2d 1037, 1040 (W.D.Wash. 1999)
(rejecting the argument made by petitioner); Mendez-Tapia v. Sonchik,
998 F. Supp. 1105, 1108 (D.Ariz. 1998) (same); Zisimopoulos v. Reno, 1998
WL 437266*1 n. 2 (E.D.Pa. 1998) (same). Thus, section 241(a)(5) applies
to orders of deportation.
Petitioner's second argument is that the preclusion of review of
previous removal orders effected by section 241(a)(5) applies only to
lawful removal orders. Petitioner relies on Wiedersperg v. INS,
896 F.2d 1179 (9th Cir. 1990). In Wiedersperg, the Ninth Circuit held
that 8 U.S.C. § 1105a(c), which states: "An order of deportation or
exclusion shall not be reviewed by any court if the alien * * * has
departed from the United States after the issuance of the order," did not
preclude review of an order of deportation based on a conviction that was
subsequently vacated. Wiedersperg, 896 F.2d at 1181-82. The court
determined that as a matter of statutory construction, the jurisdictional
bar only applied when the order of deportation was "legally executed."
Id. At the same time, the Wiedersperg court distinguished
Hernandez-Atmanza v. United States Dep't of Justice, 547 F.2d 100 (9th
Cir. 1976), a case in which a BIA decision refusing to allow an alien to
reopen deportation proceedings was affirmed. The court relied in part on
the fact that the alien in Hernandez-Almanza was challenging his order of
deportation after illegally reentering the United States. Wiedersperg,
896 F.2d at 1182. Hence, the applicability of Wiedersperg to the present
situation is doubtful.
Furthermore, the same type of argument that petitioner is making here
was rejected by the United States Supreme Court in United States v.
Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). In
that case, it was argued that 8 U.S.C. § 1326 allowed review of an
unlawful underlying deportation order. The Court examined the language of
the statute, which neither provided for nor rejected any review of the
underlying deportation order, and concluded that no review was intended.
Id. at 834-37, 107 S.Ct. 2148. The Court contrasted section 1326 with a
previous enactment of that provision which criminalized reentry by an
alien who had been "deported in pursuance of law." Id. at 835, 107 S.Ct.
The text of INA section 241(a)(5) makes no mention of "lawful" orders
of deportation. Following Mendoza-Lopez, the court concludes that the
section precludes review of any order of deportation, lawful or
otherwise. Even if this is not the case, the court has determined that
petitioner's order of deportation in this case was not unlawful. See Part
IIC infra. Thus, even if section 241(a)(5) allows review of unlawful
orders, there is no statutory authority for review in this situation. The
only case that appears to have addressed this precise scenario, an
unpublished Third Circuit case, concluded that section 241(a)(5)
precluded review of an order that erroneously denied 212(c) relief. See
Polanco v. Reno, No 00-5205, 2000 WL 1682731 (3rd Cir. 2000)
(unpublished). of course, this unpublished, out-of-circuit, opinion does
not have binding precedential effect on this court. But neither would a
published Third Circuit opinion.
The more interesting question is whether it is permissible for this
court to cite the case. Ninth Circuit Rule 36-3 declares: "Unpublished
dispositions and orders of this Court may not be cited to or by the
courts of this circuit except in the following circumstances * * *."
Since the Third Circuit case cited above is not an unpublished
disposition of the Ninth Circuit, the court concludes that its citation
does not run afoul of Rule 36-3. The Ninth Circuit itself has on occasion
cited unpublished decisions from other circuits. See, e.g., United States
v. Garcia, 210 F.3d 1058, 1059 (9th Cir. 2000); Axess Intern., Ltd. v.
Intercargo Ins. Co., 183 F.3d 935, 942 (9th Cir. 1999). The Third Circuit
appears to permit the citation of its unpublished opinions but cautions
that they have
no precedential value. See, e.g., Pinto v. Reliance Standard Life Ins.
Co., 214 F.3d 377, 381 (3rd Cir. 2000) ("In an unpublished opinion (hence
non-precedential under our Internal Operating Procedures § 5.3)
* * *."); Becton Dickinson and Co. v. Wolckenhauer, 215 F.3d 340, 352 (3rd
Cir. 2000). Thus, the court need not determine whether a Third Circuit
rule prohibiting citation would be binding on this court. Since neither
the Ninth Circuit nor Third Circuit rule prohibits this court from citing
this unpublished case, the court also need not weigh into the now
simmering controversy about the constitutionality of prohibitions against
citation to unpublished opinions. See Anastasoff v. United States,
223 F.3d 898 (8th Cir. 2000), vacated 235 F.3d 1054 (8th Cir. 2000) (en
In Polanco v. Reno, No 00-5205 (3rd Cir. 2000), the analogous Third
Circuit case, the court reviewed a denial of a petition for a writ of
habeas corpus filed by an alien who was being deported under INA section
241(a)(5). The alien had previously been deported because of a drug
conviction and had been denied 212(c) discretionary review by the BIA in
reliance on BIA precedent that was later overturned after the alien was
deported. The court stated: "We agree with the District Court's
conclusion that section 1231(a)(5) constitutes a statutory bar to
reexamining Polanco's original deportation order." Polanco at 4. For
these reasons, the court concludes that INA section 241(a)(5) applies to
petitioner and by its terms precludes review of his previous order of
deportation. The question remains whether this preclusion is
In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95
L.Ed.2d 772 (1987), the Supreme Court "established that a collateral
challenge to the use of a deportation proceeding as an element of a
criminal offense must be permitted where the deportation proceeding
effectively eliminates the right of the alien to obtain judicial review."
Id. at 839, 107 S.Ct. 2148. Petitioner in the case at bar argues that due
process also mandates that he be permitted collaterally to attack his
previous deportation order. The extension of Mendoza-Lopez to the civil
deportation context, however, is no small step. The Supreme Court noted
in Mendoza-Lopez that its holding was limited to the criminal context. It
stated: "We note parenthetically that permitting collateral challenge to
the validity of deportation orders in proceedings under § 1326 does
not create an opportunity for aliens to delay deportation, since the
collateral challenge we recognize today is available only in criminal
proceedings instituted after reentry." Id. at 839 n. 17, 107 S.Ct. 2148.
But assume for a moment that the Mendoza-Lopez standard governs in this
case. Under that standard, due process requires the availability of a
forum for collaterally attacking a prior order of deportation only when
"the violation of [the alien's] rights that took place * * * amounted to
a complete deprivation of judicial review of the determination." Id. at
840, 107 S.Ct. 2148. In the case at bar, this standard cannot be met.
Petitioner alleges that the deportation order was unlawful because the IJ
relied on legal authority which was later overruled by Magana-Pizano.
Petitioner does not allege that anything prevented him from appealing the
IJ's decision pretermitting his application for 212(c) relief and
ordering him deported. Rather, petitioner argues that he did not appeal
because "[h]e was informed that the law was unambiguous and that he was
not entitled to relief." Petition at 3, ¶ 11. Petitioner further
asserts: "Even if had appealed [sic] the BIA would surely have issued a
summary affirmance under Soriano well before Magana-Pizano v. INS,
200 F.3d 603 (9th Cir. 1999), which was published on December 27, 2000."
Petition at 4, ¶ 13. In fact, petitioner voluntarily waived his
appeal. Id., Exh B.
The deprivation of judicial review that occurred in this case was the
direct result of petitioner's choice to waive review. Thus, the
Mendoza-Lopez standard cannot
be met. The court in Polaneo came to the same conclusion. It stated:
The only way the section 1231(a)(5) [sic] could raise
due process concerns is if Polanco's original
deportation proceeding were so procedurally flawed
that it "effectively eliminated the right of the alien
to obtain judicial review." That is not the situation
here. Polanco presented his arguments to an unbiased
immigration judge, he appealed his case to the BIA,
and then he chose not to contest the BIA's ruling by
filing a habeas petition prior to his deportation.
Polanco does not claim that his decision to forego a
habeas action was involuntary or in any way invalid;
indeed, he offers no excuse, other than his belief
that such an action would have been futile.
Polanco v. Reno, No 00-5205 at 6 (3rd Cir. 2000) (citations omitted).
Not only did petitioner in the case at bar have complete access to
judicial review in his prior deportation hearing, it is not clear that
the IJ's determination was unlawful. While it is certainly true that
Magana-Pizano came to a different legal conclusion about the retroactive
application of AEDPA section 440(d) from that of the IJ, Magana-Pizano
was not decided until well after petitioner's removal proceedings were
closed. It is settled that in civil cases new rules of law are applied
retroactively only to cases still on direct review at the time the case
making the new law is decided. Harper v. Virginia Dep't of Taxation,
509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) ("When this Court
applies a rule of federal law to the parties before it, that rule is the
controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review * * *.")
Since petitioner's deportation hearing was not on direct review when
Magana-Pizano was decided, petitioner does not receive the benefit of the
new rule announced in that case.
The IJ's ruling was not unlawful. It certainly did not amount to "a
complete deprivation of judicial review of the determination."
Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148. Hence, even under the
Mendoza-Lopez standard, one that applies in the criminal context,
petitioner has not shown that due process requires that he be allowed
collaterally to attack his prior order of deportation.
Finally, petitioner raises an equal protection challenge to certain
regulations proposed by the INS. As the regulations are not yet in
effect, petitioner's challenge of them is not ripe. See Abbott
Laboratories v. Gardner, 387 U.S. 136, 147, 87 S.Ct. 1507, 18 L.Ed.2d 681
(1967) overruled on other grounds Califano v. Sanders, 430 U.S. 99, 97
S.Ct. 980, 51 L.Ed.2d 192 (1977).
The court has determined that INA section 241(a)(5) precludes review
of petitioner's previous order of deportation. The court has also
determined that section 241(a)(5) does not violate due process as
applied to petitioner because petitioner has failed to show that he was
prevented from seeking judicial review of the previous order. Finally, the
court has rejected as unripe petitioner's equal protection claim directed
at unspecified, not yet finalized, INS regulations. For these reasons,
petitioner's application for a writ of habeas corpus is DENIED.
IT IS SO ORDERED.
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