Tooby's California Post-Conviction Relief for Immigrants

 

While it is beyond the scope of these materials to address the myriad ways in which it is possible to defend a prosecution for illegal re-entry following deportation or removal, a few key points warrant discussion.

 

            First, if the defendant was not deported, but was rather granted voluntary departure, pursuant to 8 U.S.C. § 1254(e), s/he is not subject to prosecution for illegal re-entry.[94]

 

The lawfulness of the deportation order is not an element of the offense in a criminal prosecution for illegal re-entry after deportation, but a challenge to the underlying deportation can be raised collaterally, by a motion to dismiss the indictment.[95]  The denial of fundamental rights in violation of due process of law must be established before the illegal re-entry charge will be dismissed.

 

To invalidate the order on due process grounds, petitioner must demonstrate three things: (1) a due process violation; (2) prejudice; and (3) exhaustion of administrative remedies.[96]  Where the record demonstrates an inference that the petitioner may be eligible for discretionary relief from deportation, the immigration judge must advise the noncitizen of the possibility.[97]  The failure to do so constitutes a due process violation that deprives the noncitizen of judicial review and renders any waiver not knowing or intelligent.[98] 

 

Ineffective assistance of counsel at the deportation hearing can be shown as a violation of the Fifth Amendment guarantee of due process.  The defense must show (a) counsel was ineffective, and (b) the error impinged upon the fundamental fairness of the hearing in violation of the Fifth Amendment.  If defense counsel had knowledge that some defense to deportation might have been available, and failed to investigate it, the fundamental fairness of the hearing violated due process.[99]  “Prejudice is found when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings.”[100]

 

Finally, a few federal courts have held recently that a prosecution for illegal re-entry can be maintained even where the underlying conviction has since been vacated.[101]  In response, it should be argued that once the underlying conviction is vacated, the deportation order is a nullity.  The Ninth Circuit stated, “The nullification of a conviction upon which deportability is premised deprives deportation of a legal basis.”[102]

 

If this judicial trend continues, however, it may be virtually impossible to avoid an illegal re-entry conviction as long as the deportation order was legally valid at the time the re-entry or “finding” occurred.  Counsel must therefore go to great lengths to warn their noncitizen clients of their illegal re-entry exposure.

 

          A conviction for illegal reentry was reversed due to prejudicial due process violations with respect to waivers of the right to counsel and to appeal.  In United States v. Ahumada-Aguilar,[103] the right to be represented by counsel was not individually waived by the noncitizen from group silence in the face of inquiry by the immigration judge.[104]  The waiver of the right to appeal was also found invalid because the immigration judge incorrectly advised the noncitizen that he could ask special permission to reenter the United States after deportation.[105]

 

            Ineffective assistance of counsel was found, and a § 1326 illegal reentry indictment dismissed, where immigration counsel failed to timely file an application for relief pursuant to INA § 212(c) in immigration court during the deportation proceedings.[106]

[94] United States v. Wong Kim Bo, 466 F.2d 1298, 472 F.2d 720 (5th Cir. 1972)(rehearing denied); see McWhirter & Sands, A Primer for Defending a Criminal Immigration Case, 8 GEO. IMMIGR. L. J. 23, 35 (1994).

[95] United States v. Mendoza-Lopez, 481 U.S. 828 (1987); see United States v. Estrada-Torres, 179 F.3d 776, 780 (9th Cir. 1999); United States v. Alvarado-Delgado, 98 F.3d 493 (9th Cir. 1996), cert. denied, 117 S.Ct. 1096 (1997).

[96] See United States v. Garcia-Sanchez, 217 F.3d 806 (9th Cir. 2000)(a waiver of the right to appeal deportation order prevents defendant from attacking the validity of that order in a later prosecution under 8 U.S.C. § 1326). 

[97] Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir. 1989).

[98] United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998).

[99] IAC at the deportation hearing can be shown by a violation of the Fifth Amendment guarantee of due process.  Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986).  The defense must show counsel was ineffective and the error impinged upon the fundamental fairness of the hearing in violation of the Fifth Amendment.  If defense counsel had knowledge that some defense to deportation might have been available, and failed to investigate it, the fundamental fairness of the hearing violated due process.  Ibid. 

[100] Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999).

[101] Where removal from the United States occurred after the conviction, a conviction that is later vacated for constitutional error can still serve as an “aggravated felony” for federal sentencing purposes under 8 U.S.C. § 1326(b)(2).  United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001).

[102] Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th Cir. 1990).

[103] United States v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002).

[104] United States v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002).

[105] United States v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002).

[106] United States v. Perez, 213 F.Supp.2d 229 (E.D.N.Y. 2002).