Opinion
CRIMINAL NO. 02-10091-PBS
September 29, 2003
MEMORANDUM AND ORDER
I. INTRODUCTION
Defendant Roberto Garcia, charged with illegal reentry after deportation, moves to dismiss the indictment pursuant to 8 U.S.C. § 1326 (d) on the ground that the deportation hearing violated his right to due process because he was not informed about the availability of free legal assistance or provided with a list of free or low-cost legal services. After hearing, the defendant's motion to dismiss the indictment is DENIED .
II. BACKGROUND
The record contains evidence of the following facts, which are undisputed except where noted.
On April 1, 1998, the defendant, an illegal alien from Colombia, was convicted of cocaine trafficking and sentenced to a term of 37 months. As a result of his conviction, the Immigration and Naturalization Service ("INS") initiated deportation proceedings pursuant to 8 U.S.C. § 1228, and served him with a Notice of Rights and Request for Disposition (the "Notice"). It advised the defendant in Spanish: "You have the right to contact an attorney or other legal representative to represent you at your hearing, or to answer any questions regarding your legal rights in the United States. Upon your request, the officer who gave you this notice will provide you with a list of legal organizations that may represent you for free or for a small fee." The defendant signed the Notice, admitting that he was present illegally in the United States and that he did not believe he faced harm upon his return to Colombia.
In addition, the defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order. The defendant signed the form acknowledging receipt of the Notice of Intent and signed his name to the section in which he admitted the allegations, waived his right to rebut or contest the charges, and waived his right to petition for review of the Final Removal Order. The defendant also waived the 14-day period for execution of the removal order by signing his name to that section of the form. The Final Administrative Removal Order was read to the defendant in Spanish. It is noted on the Order that the defendant had waived the petition for review.
Several years later, on February 27, 2002, the defendant was apprehended in the United States and indicted under 8 U.S.C. § 1326. He was charged with being an alien who reentered the United States subsequent to a conviction for commission of an aggravated felony and deportation without obtaining the permission of the Attorney General.
III. DISCUSSION
The defendant seeks to dismiss the indictment on the ground that he was not advised of the availability of free legal assistance in the original deportation proceedings in violation of his due process rights. The government argues that the defendant fails to fulfill the requirements of the statute because he did not exhaust his administrative remedies or seek judicial review. Defendant responds that without the benefit of counsel, he was unable to understand or to exercise the administrative or judicial remedies available to him. Section 1326(d) provides, in relevant part:
In a criminal proceeding under this section an alien may not challenge the validity of the deportation order . . . unless the alien demonstrates that —
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.8 U.S.C. § 1326 (d).
Courts are divided over the extent to which the provisions of § 1326(d) serve as a prerequisite to a collateral challenge on a deportation order. Compare United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002) ("Statutory exhaustion reguirements such as those set forth in § 1326(d) are mandatory and courts are not free to dispense with them.") with United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (holding that exhaustion reguirements of § 1326(d) cannot bar collateral review of a deportation proceeding when the waiver of the right to an administrative appeal did not comport with due process) and United States v. Aguirre-Tello, 324 F.3d 1181, 1189 (10th Cir. 2003) (holding that the defendant's due process rights were violated by the failure to give an adequate explanation of the relief available to him, that the nature of this error was such as to deprive him of his right to any appeal, whether administrative or judicial, and that a deprivation resting on such a ground cannot bar his collateral attack in this proceeding). Cf. Sousa v. I.N.S., 226 F.3d 28, 31-32 (1st Cir. 2000) (acknowledging that although the Supreme Court regards exhaustion requirements imposed by statute as more rigid than the common law doctrine, the Court has carved out exceptions, such as where a resort to the agency would be futile because the challenge is one that the agency has no power to resolve in the applicant's favor).
Because deportation is a civil, not a criminal, proceeding, there is no Sixth Amendment right to counsel. See Saakian v. I.N.S., 252 F.3d 21, 24 (1st Cir. 2001). Nonetheless, "[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306 (1993).See United States v. Mendoza-Lopez, 481 U.S. 828, 837-39 (1987) (holding that due process requires 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").
Aliens have a statutory right to be represented by counsel, at their own expense, in deportation proceedings. Both 8 U.S.C. § 1362 and 8 U.S.C. § 1228 (b)(4)(B) provide: "[The alien] shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as [he] shall choose". In addition, federal Regulations provide: "The Service shall provide the alien with a list of available free legal services programs . . . located within the district or sector where the Notice of Intent is issued." 8 C.F.R. § 238.1 (b)(2) (iv).
Defendant argues that his waiver of rights was uncounseled and if he had an attorney, he would have been advised to seek the withholding of removal due to fears of torture or persecution in Colombia. He contends there is no evidence in the record that he was informed of the availability of free legal services.
A defendant bears the burden of demonstrating that the entry of the order was fundamentally unfair. See 8 U.S.C. § 1326 (d). Contrary to the defendant's contentions, the record demonstrates that the INS notified him in Spanish of his right to contact an attorney and receive a list of counsel. The defendant has provided no evidence (i.e., affidavit, testimony or even proffer) that he requested a list of attorneys, and that his request was ignored or declined. The fact that there is no form in the record expressly waiving his right to receive a list of attorneys does not support the inference that the defendant's fundamental right to be informed that he may retain counsel was violated.See United States v. Brown, 127 F. Supp.2d 392, 405 (W.D.N.Y. 2001). The Court need not address whether a failure to provide a list of counsel upon request would constitute a deprivation of a fundamental right.
Accordingly, the court concludes that the defendant failed to meet the statutory prerequisites of 8 U.S.C. § 1326 (d) or to otherwise mount a viable due process challenge to the validity of the underlying deportation order.