Opinion
4:02CR3103
June 25, 2003
MEMORANDUM AND ORDER ON THE DEFENDANT'S OBJECTION TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The defendant, Jose Mendez-Morales, moved to dismiss the indictment against him on the ground that his rights under the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause of Article I, Section 9, Clause 3 of the Constitution were violated. (See generally Mot. to Dismiss, filing 37.) A hearing concerning the motion was held on March 21, 2003, before United States Magistrate Judge David L. Piester, (see filing 43), who has recommended that I deny the defendant's motion, (see filing 46). Now before me is the defendant's objection to the magistrate judge's report and recommendation, filing 54. In the course of my de novo review of those portions of the magistrate judge's report that the defendant challenges, see Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995); 28 U.S.C. § 636(b)(1)(C); NELR 72.4, I have studied the magistrate judge's entire report and recommendation, (see filing 46), the briefs submitted by the parties in connection with the defendant's motion to dismiss, (see filings 33, 42), the exhibits attached to the defendant's brief in support of its motion to dismiss, (see filing 33), the audio recording of the hearing before the magistrate judge, (see filing 43), the exhibits that were received at that hearing, (see filing 45), and the briefs submitted by the parties in connection with the defendant's objection to the report and recommendation, (see filings 54, 57, 60). My analysis of these materials follows.
I. BACKGROUND
The relevant facts, which were efficiently summarized by the magistrate judge, are not disputed. (See Report and Recommendation, filing 46.) Briefly, the defendant, who was born in Mexico, was living in the United States as a permanent resident in 1993 when he was convicted of first degree sexual assault. While the defendant was serving his sentence, deportation proceedings were initiated against him. Specifically, the defendant was charged as "an alien who has been convicted of a crime involving moral turpitude committed within five years of entry in the United States and sentenced to a confinement and prison term for a year or more." (Filing 45, Def.'s Ex. 102 at 1.) See also Immigration and Nationality Act (INA), § 241(a)(2)(A)(i), 8 U.S.C.A. § 1227(a)(2)(A)(i) (West 1999) (formerly 8 U.S.C. § 1251(a)(2)(A)(i) (1994)). The defendant conceded deportability on this charge, but sought a waiver under § 212(h) of the INA, 8 U.S.C.A. § 1182(h) (West 1999) and an adjustment of his status under § 245(a) of the INA, 8 U.S.C.A. § 1255(a) (West 1999). (See filing 45, Def.'s Ex. 102 at 2, 6.) Section 212(h) of the INA provides, inter alia, that the consequences of a conviction for a crime of moral turpitude can be waived by the Attorney General, in his discretion, if he is satisfied that the alien's exclusion would result in extreme hardship to the alien's spouse, parent, or child if that spouse, parent, or child is a United States citizen or an alien lawfully admitted for permanent residence. INA § 212(h)(1)(B), 8 U.S.C.A. § 1182(h)(1)(B) (West 1999). After a hearing, an immigration judge found that although the defendant did have qualifying relationships with United States citizens who would suffer extreme hardship upon his deportation, the defendant nevertheless did not merit a § 212(h) waiver due to the severity of his offense and his lack of rehabilitation. (See filing 45, Def.'s Ex. 102 at 7-11.) For the same reasons, the immigration judge concluded that the defendant did not merit an adjustment of status. (See id. at 11.)
The immigration judge's decision was affirmed in a split decision by the Board of Immigration Appeals (BIA). (See filing 45, Def.'s Ex. 103.) The defendant then sought judicial review of this decision, but the Eighth Circuit dismissed the defendant's appeal for lack of jurisdiction. See generally Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997) (per curium). Specifically, the Eighth Circuit concluded that § 440(a) of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, § 440(a), 110 Stat. 1214, 1276-77 (1996), which amended INA § 106, 8 U.S.C. § 1105a(a)(10) to state, "Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in [INA] section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject to review by any court," in combination with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, Div. C, § 321(a)(1), 110 Stat. 3009 (1996), which amended the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43) to include sexual abuse of a minor, divested the court of jurisdiction. See Mendez-Morales, 119 F.3d at 738-39. In reaching this conclusion, the court found that these amendments must be applied retroactively to the defendant's case.See id. at 739. The Eighth Circuit also rejected the defendant's argument that the unavailability of judicial review of the order denying the defendant's requests for a § 212(h) waiver and a § 245(a) adjustment of status deprived him of due process. See id. (citing Yang v. INS, 109 F.3d 1185, 1194-97 (7th Cir. 1997)). The defendant's petition for rehearing before the Eighth Circuit (see filing 45, Pl.'s Ex. 105) was denied on October 1, 1997, and the defendant did not seek Supreme Court review, (see, e.g., filing 45, Def.'s Ex. 101).
As the court noted, 8 U.S.C. § 1105a was subsequently repealed by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, Div. C, § 306(b), 110 Stat. 3009 (1996). See Mendez-Morales, 119 F.3d at 739 n. 2. I note too that § 306(a)(2) of the IIRIRA amended 8 U.S.C. § 1252 to eliminate judicial review over denials of discretionary relief, including denials of § 212(h) waivers, and orders against criminal aliens. See 8 U.S.C.A. § 1252(a)(2)(B)-(C) (West 1999). However, § 306 of the IIRIRA did not apply to the defendant's case because his "final order of deportation or removal . . . [was not] filed on or after the date of the enactment of [the IIRIRA]." IIRIRA § 306(c). See also Mendez-Morales, 119 F.3d at 739 n. 2.
The defendant was given a "Warning to Alien Ordered Removed or Deported," which stated that he was "prohibited from entering, attempting to enter, or being in the United States . . . [f]or a period of 10 years from the date of [his] departure from the United States," and that he would be subject to prosecution if he violated this prohibition. (See filing 45, Def.'s Ex. 104 at 2.) Then, on January 16, 1998, the defendant departed the United States from El Paso, Texas, on foot. (Id. at 1.) However, according to the indictment in this case, the defendant knowingly entered the United States and was found in the District of Nebraska on or about June 3, 2002, without first having obtained consent from the United States Attorney General to reapply for admission, in violation of 8 U.S.C. § 1326(a). (See Indictment, filing 11.) The defendant moved to dismiss this indictment, (see filing 37), and he now objects to the magistrate judge's recommendation that his motion be denied (see filings 46, 54).
II. ANALYSIS
A. Collaterally Attacking the Deportation Order Pursuant to 8 U.S.C. § 1326(d)
As the magistrate judge stated in his report, "The elements for establishing a violation of § 1326 are `that the defendant (1) is an alien, (2) was previously deported, and (3) has re-entered the United States without proper permission.'" United States v. Rodriguez-Arreola, 270 F.3d 611, 619 n. 15 (8th Cir. 2001) (quoting United States v. Gomez-Orozco, 188 F.3d 422, 425 (7th Cir. 1999)). (See also Report and Recommendation, filing 46, at 5.) The defendant's motion to dismiss focuses upon element two. Specifically, the defendant has argued that his deportation violated his rights under the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause of Article I, Section 9, Clause 3 of the Constitution, and therefore it cannot be used to support the charge against him. (See Mot. to Dismiss, filing 37, ¶ 2.)
The defendant's motion to dismiss hinges upon whether or not he may now collaterally attack his deportation. In United States v. Mendoza-Lopez, 481 U.S. 828, 834-37 (1987), the Supreme Court noted that there is no indication in § 1326 that Congress intended the validity of prior deportations to be contestable in § 1326 prosecutions. However, the Court concluded that collateral attacks of prior deportation orders must be allowed as a matter of due process if defects in the deportation proceeding deprived the alien of the right to have the disposition reviewed in a judicial forum. See id. at 837-39. See also United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) ("In a section 1326 prosecution, the defendant may collaterally attack the underlying deportation proceedings and prevent the government from using them as a basis for conviction if (1) an error in the deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, and (2) the error functionally deprived the alien of the right to judicial review." (citing Mendoza-Lopez, 481 U.S. at 840) (emphasis in original)). After Mendoza-Lopez, Congress expressly stated that the validity of deportation orders may be challenged in certain § 1326 cases. 8 U.S.C. § 1326(d) now states,
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section 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.
The magistrate judge did not refer to this statute in his report and recommendation. Instead, the magistrate judge stated, "An alien seeking to challenge a prior deportation order in a prosecution for illegal reentry must establish: 1) an error in the administrative deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, 2) the error functionally deprived the alien of the right to judicial review, and 3) the procedural deficiencies caused the alien actual prejudice." (Report and Recommendation, filing 46, at 7 (citingUnited States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); United States v. Martinez-Amaya, 67 F.3d 678, 680-81 (8th Cir. 1995); United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003)).) In this case, the differences between the test articulated by the magistrate judge and the test set forth in § 1326(d) may be negligible. Nevertheless, I believe that the defendant's motion should be analyzed within the framework established by § 1326(d) because the defendant has argued specifically that the indictment must be dismissed pursuant to § 1326(d), or, alternately, that § 1326(d) is unconstitutional as applied to him under Mendoza-Lopez and other cases. (See Def.'s Br. in Supp. of Mot. to Dismiss, filing 33, at 7-12; Def.'s Objection to the Report and Recommendation of the Magistrate Judge (hereinafter Def.'s Br.), filing 54, at 1, 4; Reply Br. (hereinafter Def.'s Reply Br.), filing 60, at 1.)
Preliminarily, however, I note that there has been some confusion regarding the magistrate judge's analysis of the defendant's attempt to collaterally attack his deportation order. The defendant states, "The [report and recommendation] is not entirely clear. Either the Magistrate Judge held that Mr. Mendez-Morales was not entitled to challenge the deportation order or the Magistrate Judge permitted a challenge to the deportation order, but found the challenge unpersuasive." (Def.'s Br. at 3.) My reading of the report and recommendation indicates that the magistrate judge first concluded that the defendant was "entitled under the due process clause to collaterally challenge an underlying deportation that was ordered in violation of his constitutional rights," (Report and Recommendation, filing 46, at 5), and then analyzed the merits of the defendant's ex post facto and due process arguments, (see id. at 5-15). In analyzing the merits of the defendant's due process challenge, the magistrate judge used the three-partTorres-Sanchez test set forth above. (See id. at 7 (citing United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); United States v. Martinez-Amaya, 67 F.3d 678, 680-81 (8th Cir. 1995); United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003)); see also id. at 5-15). Thus, the magistrate judge seemed to draw an analytical distinction between 1) demonstrating entitlement to bring a collateral due process challenge against an underlying deportation, and 2) demonstrating that the challenge is meritorious. (See Report and Recommendation, filing 46, at 5-15.) Although neither party has formally objected to this aspect of the magistrate judge's analysis, I shall briefly comment upon it in order to resolve the defendant's confusion.
The defendant has not raised an objection to the magistrate judge's recommendation that the Ex Post Facto Clause is inapplicable to deportation proceedings. (See Report and Recommendation, filing 46, at 6.) Therefore, there is no need for me to conduct a de novo review of this portion of the magistrate judge's report. See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994). Nevertheless, I have reviewed this portion of the magistrate judge's recommendation, and I agree with the magistrate judge's conclusion that "[t[he Ex Post Facto Clause has no application to deportation proceedings." (Report and Recommendation, filing 46, at 6 (citing Galvan v. Press, 347 U.S. 522, 531 (1954)) (emphasis omitted).)
It seems to me that the origin of the confusion may lie in Mendoza-Lopez itself. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-42 (1987). In that case, the Supreme Court first stated,
Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least 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 is used to establish an element of a criminal offense.Mendoza-Lopez, 481 U.S. at 837-39 (citations and footnotes omitted). This language is consistent with the notion that a defendant who demonstrates that defects in his deportation proceeding deprived him of the right to have the disposition reviewed in a judicial forum must be allowed to challenge that deportation in a later proceeding. However, Mendoza-Lopez also states,
We . . . accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents' rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under § 1326. We think that it did. . . . The Government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense.Id. at 840. Thus, it seems that if a defendant can show that a violation of his due process rights during the administrative proceeding foreclosed judicial review of his deportation, he is not only entitled to judicial review of the deportation in a subsequent proceeding, see id. at 838, but he can also prevent the use of the deportation against him in a § 1326 case, see id. at 842 ("Because respondents were deprived of their rights to appeal, and of any basis to appeal . . ., the deportation proceeding in which these events occurred may not be used to support a criminal conviction, and the dismissal of the indictments against them was therefore proper."). Put differently, by demonstrating that "(1) an error in the deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, and (2) the error functionally deprived the [defendant] of the right to judicial review," "the defendant may collaterally attack the underlying deportation proceedings and prevent the government from using them as a basis for conviction." United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) (citing Mendoza-Lopez, 481 U.S. at 840) (second emphasis added). There is no need to analyze separately whether "the defendant may collaterally attack the underlying deportation proceedings" and whether he may "prevent the government from using them as a basis for conviction," because a defendant who has made the proper showing has achieved both ends. Id. To the extent that magistrate judge's report implies that there is an analytical distinction between "entitlement" to bring a collateral attack and the merits of a collateral attack, it will not be adopted.
I now turn to the defendant's argument that he has satisfied all three elements of 8 U.S.C. § 1326(d). The first element is not in dispute, since the government concedes that the defendant has exhausted his administrative remedies. (See Gov.'s Br. in Opp'n to Def.'s Objections to Report and Recommendation (hereinafter Pl.'s Br.), filing 57, at 5.) However, the parties disagree as to whether "the deportation proceedings at which the order was issued improperly deprived the [defendant] of the opportunity for judicial review." 8 U.S.C. § 1326(d)(2). Initially, I note that the defendant has no colorable argument that the deportation proceedings improperly deprived him of judicial review. Indeed, the defendant appealed his deportation order to the Eighth Circuit, but the court concluded that it had no jurisdiction to hear the appeal. See Mendez-Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997) (per curium). The defendant claims that the Eighth Circuit erred in dismissing his appeal, and that it is this error that deprived him of judicial review. The defendant also argues that the Eighth Circuit's decision should be considered part of the "deportation proceedings" for the purposes of § 1326(d)(2), and adds that the failure to do so would "raise substantial constitutional doubt about the statute." (Def.'s Br. at 4-5; see also Def.'s Br. in Supp. of Mot. to Dismiss, filing 33, at 8.)
Even if I assume that the defendant is correct that the Eighth Circuit erroneously dismissed his appeal, the defendant's argument that the Eighth Circuit's decision must be considered part of the "deportation proceedings" must be rejected. In support of this argument, the defendant refers me to United States v. Mendoza-Lopez, 481 U.S. 828, 838 n. 15 (1986). There the Court stated, "Even with this safeguard [meaningful review of the administrative proceeding], the use of the result of an administrative proceeding to establish an element of a criminal offense is troubling." Id. Parenthetically, I note that the Court continued, "We do not reach this issue here, however, holding that, at a minimum, the result of an administrative proceeding may not be used as a conclusive element of a criminal offense where the judicial review that legitimated such a practice in the first instance has effectively been denied." Id. At any rate, I fail to see how this language supports the defendant's claim that the Eighth Circuit's dismissal of the defendant's appeal must be considered part of an administrative proceeding for the purposes of § 1326(d)(2). In Mendoza-Lopez, the Supreme Court stated repeatedly that its holding was concerned only with procedural defects in administrative proceedings that foreclosed judicial review of those proceedings. See, e.g., Mendoza-Lopez, 481 U.S. at 838 ("This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of the proceeding, an alternative means of obtaining judicial review must be made available . . .") (emphasis added); id. at 839 ("Having 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 . . .") (emphasis added); id. at 841 ("The fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge's determination unavailable to respondents.") (emphasis added). The Eighth Circuit too has stated that a defendant seeking to attack collaterally a deportation order must show, inter alia, that "an error_in the administrative deportation proceedings rendered the proceedings fundamentally unfair in violation of due process." United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) (emphasis added). As I will explain more fully below, in this case there were no procedural defects in the administrative proceedings that deprived the plaintiff of judicial review. As a result, the plaintiff may not collaterally attack his deportation under Mendoza-Lopez or 8 U.S.C. § 1326(d).
Notwithstanding the preceding analysis, there is a remote possibility that the Eighth Circuit might construe its decision in Mendez-Morales to be part of the administrative deportation proceeding. See Mendez-Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997) (per curium) (finding that "judicial review by this court would be an `action taken' for purposes of IIRIRA § 321(c)"). Therefore, I shall proceed to determine whether the defendant has demonstrated that the entry of the deportation order was fundamentally unfair, which is the third element set forth in § 1326(d). See 8 U.S.C. § 1326(d)(3). "To show fundamental unfairness, a defendant `must show both a fundamental procedural error and prejudice resulting from that error.'" United States v. Perez, 330 F.3d 97, 104 (2d Cir. 2003) (quoting United States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir 2002)). See also United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) ("In this circuit, the establishment of a fundamentally unfair hearing in violation of due process requires a showing both of a fundamental procedural error and that the error caused prejudice. . . ." (footnote omitted)). The defendant argues that he has demonstrated fundamental unfairness because 1) the Eighth Circuit's dismissal of his appeal, which was based upon the retroactive application of the AEDPA and IIRIRA, was erroneous, (see Def.'s Br. in Supp. of Mot. to Dismiss, filing 33, at 9), and 2) the immigration judge used the incorrect legal standard, (see Def.'s Br. at 10). Neither argument has merit.
The defendant's first argument is based upon INS v. St. Cyr, 533 U.S. 289 (2001), wherein the Court held, inter alia, that since the IIRIRA did not unmistakably indicate that Congress considered whether to apply its repeal of INA § 212(c) retroactively, "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr, 533 U.S. at 326. The defendant argues thatSt. Cyr demonstrates that the Eighth Circuit's decision to apply retroactively the AEDPA and IIRIRA in dismissing his direct appeal, see generally Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997) (per curium), is erroneous. As the magistrate judge explained, this argument fails because St. Cyr cannot be applied retroactively to the defendant's deportation case, which was closed long before the Supreme Court decidedSt. Cyr. (See Report and Recommendation, filing 46, at 9-10.) See also United States v. Hernandez-Rodriguez, 170 F. Supp.2d 700, 704 n. 2 (N.D.Tex. 2001) ("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 [.]" (quoting Harper v. Virginia Department of Taxation, 509 U.S. 86, 97 (1993) (emphasis added)). In addition, even if St. Cyr could somehow be applied retroactively, I disagree with the defendant's argument that St. Cyr necessarily invalidates Mendez-Morales. When St. Cyr pleaded guilty to an offense that rendered him deportable, he was eligible for a discretionary waiver of deportation under INA § 212(c). See St. Cyr, 533 U.S. at 314-315. The retroactive application of the repeal of § 212(c) would have rendered St. Cyr completely ineligible for relief under that section. See id. at 320. To avoid this "obvious and severe retroactive effect," the Supreme Court held that § 212(c) relief must remain available to defendants who would have been eligible for such relief at the time of their plea agreements. Id. at 325; see also id. at 326. In contrast, the defendant in this case neither pleaded guilty to his sexual assault charge nor lost eligibility for a § 212(h) waiver of deportability. In fact, the immigration judge found that the defendant was eligible for § 212(h) relief, but denied defendant's request for such relief. (See filing 45, Def.'s Ex. 102 at 6-11.) This means that the defendant cannot claim that he suffered a retroactive effect similar to that experienced by St. Cyr.St. Cyr and Mendez-Morales are also distinguishable because St. Cyr's challenge was brought pursuant to the general habeas corpus statute, 28 U.S.C. § 2241, while in Mendez-Morales the defendant sought direct review of his deportation order, which the Eighth Circuit may have correctly determined to be unavailable. See generally Calcano-Martinez v. INS, 533 U.S. 348 (2001). Finally, in St. Cyr the Supreme Court expressly noted that St. Cyr did not "contend that he would have any right to have an unfavorable exercise of the Attorney General's discretion reviewed in a judicial forum." St. Cyr, 533 U.S. at 298. This is the very argument that the defendant seeks to raise in this case. As the magistrate judge noted, "St. Cyr did not hold that, under statutory or due process standards, discretionary denial of requests for waivers of deportation by an immigration judge and affirmed by the BIA are subject to judicial review where the deportation was pending at the time AEDPA and IIRIRA were enacted." (Report and Recommendation, filing 46, at 11.) Therefore, I am not persuaded by the defendant's argument that the Eighth Circuit's dismissal of the defendant's appeal was "fundamentally unfair" in light of St. Cyr.
Second, the defendant argues that his deportation was fundamentally unfair because the immigration judge used an improper legal standard to reach a decision in the deportation proceedings. Specifically, the defendant claims that the judge "arbitrarily attached conclusive weight to the [defendant's] criminal history" and believed he could not "compare the totality of the circumstances." (Def.'s Br. at 10.) A review of the immigration judge's opinion demonstrates that this argument lacks merit. The immigration judge clearly did consider the "totality of the circumstances," including the defendant's qualifying relationships, (see filing 45, Def.'s Ex. 102 at 7), the financial, emotional, educational, and psychological hardships that the deportation would cause the relatives, (see id. at 7-9), the seriousness of the offense, (see id. at 9), the defendant's lack of rehabilitation, (see id. at 10), and the defendant's lack of acceptance of responsibility for his crime, including 1) his attempt to explain away his confession by claiming he was tricked; 2) his attempt to blame his thirteen-year-old victim for his crime and recast himself as the victim; and 3) the defendant's refusal to consider treatment, (see id. at 10). The immigration judge did not fail to weigh the entire record and there is no support for the defendant's assertion that the immigration judge "arbitrarily attached conclusive weight to the criminal history." (Def.'s Br. at 10; see also filing 45, Def.'s Ex. 103 at 7-12 (approving of immigration judge's weighing of the evidence).)
Thus, both of the defendant's arguments that the entry of his deportation order was fundamentally unfair lack merit. Moreover, even if I were to assume that the defendant's arguments were substantively meritorious, I note that neither of these arguments raises a procedural error that prejudiced the defendant's deportation hearing. United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995). Indeed, the argument that the retroactive application of the AEDPA and IIRIRA is a procedural error that renders deportation orders fundamentally unfair was specifically considered and, in my view, correctly rejected in United States v. Hernandez-Rodriguez, 170 F. Supp.2d 700, 703-04 (N.D.Tex. 2001). Similarly, the defendant's argument that the immigration judge used an incorrect legal standard is simply another attempt "to turn the fundamental fairness inquiry, which is procedural in nature, into an expanded, substantive inquiry." Id. The alleged errors by the Eighth Circuit and the immigration judge do not rise to the level of due process violations, and for that reason, they could not have rendered the deportation order "fundamentally unfair" within the meaning of § 1326(d)(3).
Although the prevailing view has been that the fundamental fairness inquiry focuses only on questions procedural due process, as opposed to errors in the substantive application of the law, see, e.g., United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); United States v. Perez, 330 F.3d 97, 104 (2d Cir. 2003); United States v. Torres, ___ F. Supp.2d. ___, 2003 WL 21383395, at *6 (E.D.Pa. May 21, 2003); United States v. Hernandez-Rodriguez, 170 F. Supp.2d 700, 703-04 (N.D.Tex. 2001); United States v. Lopez-Vasquez, 227 F.3d 476, 484, 485 (5th Cir. 2000), I recognize that "at least two district courts have held that fundamental fairness `may also result when the removal order is based on an erroneous application of the law.'" Torres, ___ F. Supp.2d. ___, 2003 WL 21383395, at *6 (citing United States v. Ojeda-Escobar, 218 F. Supp.2d 839, 844 (W.D.Tex. 2002); United States v. Diaz-Nin, 221 F. Supp.2d 584, 590 (D.V.I. 2002)). The Eighth Circuit appears to follow the majority view that under Mendoza-Lopez, only "procedural errors," as opposed to errors in the substantive application of law, "are so fundamental that they may functionally deprive [an] alien of judicial review, requiring that the result of the hearing in which they took place not be used to support a criminal conviction." United States v. Mendoza-Lopez, 481 U.S. 828, 839 n. 17 (1987). See United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) ("the establishment of a fundamentally unfair hearing in violation of due process requires a showing . . . of a fundamental procedural error" (footnote omitted)).
In addition, it is clear that the immigration judge's refusal to grant a discretionary waiver in the defendant's favor is not a procedural error. See generally United States v. Wilson, 316 F.3d 506 (4th Cir. 2003) (holding that, since defendant had no property or liberty interest in discretionary waiver, he could not claim that the administrative denial of the waiver amounted to a due process violation that would support a collateral attack under § 1326(d)); Garcia v. INS, 329 F.3d 1217, 1223-24 (11th Cir. 2003); see also Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001) ("[E]ligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General." (quoting Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000))); INS v. St. Cyr, 533 U.S. 289, 307-08 (2001) (distinguishing between claims of eligibility for discretionary relief from arguments that there ought to have been a favorable exercise of discretion).
As I noted above, a defendant attempting to demonstrate fundamental unfairness for the purposes of 1326(d) must also demonstrate that he wasprejudiced by a fundamental procedural error. United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995). "Actual prejudice exists where defects in the deportation proceedings `may well have resulted in a deportation that would not otherwise have occurred.'" Id. (quoting United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989)). Quoting INS v. St. Cyr, 533 U.S. 289, 316 (2001), the defendant argues that he was prejudiced by the retroactive application of the AEDPA and IIRIRA. However, even if I were to agree with the defendant that in view of St. Cyr, the Eighth Circuit erred in retroactively applying the AEDPA and IIRIRA to dismiss his appeal, and even if this error were deemed to be procedural (as opposed to an error in the substantive application of the law), it seems to me that the defendant has nevertheless failed to demonstrate that his deportation would not otherwise have occurred. If the Eighth Circuit had undertaken judicial review of the immigration judge's decision to reject the defendant's request for a waiver (which is a decision vested in the discretion of the Attorney General), the court would have reviewed that decision for an abuse of discretion. See Rodriguez-Rivera v. INS, 993 F.2d 169, 170 (8th Cir. 1993); Nyonzele v. INS, 83 F.3d 975, 979 (8th Cir. 1996). "An abuse of discretion occurs if a decision was without rational explanation, departs from established policies, or invidiously discriminates against a particular race or group." Nyonzele, 83 F.3d at 979 (quoting Khalaj v. Cole, 46 F.3d 828, 832 (8th Cir. 1995)). "An abuse of discretion also occurs where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim." Id. (citing Barragan-Verduzco v. INS, 777 F.2d 424, 425 (8th Cir. 1985)). As I explained above, I have found that the defendant's argument that the immigration judge "arbitrarily attached conclusive weight to the [defendant's] criminal history" and believed he could not "compare the totality of the circumstances,"(Def.'s Br. at 10), to be lacking in merit. After reviewing the decisions of the immigration judge and the BIA, I cannot say that the denial of the defendant's request for a § 212(h) waiver amounted to an abuse of discretion. Therefore, it seems to me that the defendant cannot demonstrate that he was prejudiced by the Eighth Circuit's retroactive application of the AEDPA and the IIRIRA.
The magistrate judge found that there was no statutory authorization for judicial review over the discretionary denial of the defendant's waiver request because 8 U.S.C. § 1182(h)(2) states, "No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection." (See Report and Recommendation, filing 46, at 11-12 (citing 8 U.S.C. § 1182(h)).) I cannot accept the magistrate judge's reasoning on this point. The language quoted above did not apply in the defendant's case, because the defendant's deportation order had been entered prior to September 30, 1996. See IIRIRA, Pub.L. No. 104-208, Div. C, § 348(a)-(b), 110 Stat. 3009 (1996). Therefore, it seems to me that if the Eighth Circuit had not retroactively applied the AEDPA and IIRIRA, it may have undertaken an "abuse of discretion" review of the defendant's deportation. See, e.g., Nyonzele v. INS, 83 F.3d 975, 979 (8th Cir. 1996); Rodriguez-Rivera v. INS, 993 F.2d 169, 170 (8th Cir. 1993).
For all of the foregoing reasons, the defendant cannot satisfy the requirements of 8 U.S.C. § 1326(d)(2) and (3), and thus his attempt to attack collaterally his deportation order to bar its use in the instant case must fail. However, the defendant has also argued that if his collateral attack is not permitted under § 1326(d), the statute is unconstitutional as applied to him. It is to this argument that I now turn.
B. The Constitutionality of § 1326(d) as Applied to the Defendant
There is authority for the proposition that a defendant who cannot satisfy each requirement of § 1326(d) may nevertheless be entitled to attack collaterally his deportation. For example, in United States v. Aguirre-Tello, 324 F.3d 1181, 1189 (10th Cir. 2003), the court held that the exhaustion requirement set forth in § 1326(d)(1) could not bar a collateral attack when due process violations prevented the defendant from exhausting his administrative remedies prior to his deportation. See also United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). In the instant case, the defendant has raised an argument converse to the holdings of Aguirre-Tello and Muro-Inclan. Specifically, the defendant argues that his failure to satisfy § 1326(d)(2) and (3) cannot bar his collateral attack without violating his due process rights and the principles set forth in United States v. Mendoza-Lopez, 481 U.S. 828, 834-37 (1987). (See Def.'s Br. in Supp. of Mot. to Dismiss, filing 33, at 10-12.) However, the defendant has presented me with no authority to support the notion that he can collaterally attack a deportation order even though he cannot demonstrate that the deportation proceedings improperly deprived him of the opportunity for judicial review or that the entry of the deposition order was fundamentally unfair. See Mendoza-Lopez, 481 U.S. at 839-840; 8 U.S.C. § 1326(d)(2)-(3).
This is not a case in which "there was a complete failure by the immigration court to give notice of the time, date, and place of the deportation hearing." (Def.'s Br. in Supp. of Mot. to Dismiss, filing 33, at 10-11 (quoting United States v. Montano-Bentancourt, 151 F. Supp.2d 794, 798 (W.D.Tex. 2001)).) Nor is this a case in which "the Immigration Judge [failed] to give adequate notice of discretionary relief from deportation." (Id. at 11 (citing United States v. Andrade-Partida, 110 F. Supp.2d 1260 (N.D.Cal. 2000)).) Nor was the defendant denied adequate notice of his right to appeal. (See Def.'s Br. at 11 (citing United States v. Fares, 978 F.2d 52, 56 (2d Cir. 1992)).) See also United States v. Mendoza-Lopez, 481 U.S. 828, 839-40 (1987) (assuming that the immigration judge's failure to explain the alien's right to appeal and right to suspension of deportation was fundamentally unfair). Instead, this is a case in which deportability under INA § 241(a)(2)(A)(i) was conceded, and the defendant was allowed to seek discretionary relief. The defendant has no due process interest in receiving this discretionary relief, and thereforeMendoza-Lopez does not avail him. See generally United States v. Wilson, 316 F.3d 506 (4th Cir. 2003); Garcia v. INS, 329 F.3d 1217, 1223-24 (11th Cir. 2003); see also Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001) (quoting Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000)). Furthermore, even if I assume that 1) the defendant had a due process interest in such relief that might permit a collateral attack upon the deportation order or 2) the defendant should not have been statutorily barred from seeking direct judicial review of the administrative decision to deny discretionary relief, see generally Mendez-Morales, 119 F.3d 738, my review of the decisions of the immigration judge and the BIA leads me to conclude that the deportation order was not fundamentally unfair or based upon an abuse of discretion. As a result, the defendant's collateral attack must fail, and the government may use the deportation order in support of its case against the defendant.
The defendant's objection to the magistrate judge's report and recommendation also contains several references to cases involving successive habeas corpus petitions. (See Def.'s Br. at 5, 7-8, 11-12.) I fail to see the relevance of these cases to the issues now before me.
IT IS ORDERED that:
1. The defendant's objection to the magistrate judge's report and recommendation, filing 54, is overruled;
2. The magistrate judge's report and recommendation, filing 46, is adopted to the extent that it is consistent with the memorandum accompanying this order; and
3. The defendant's motion to dismiss, filing 37, is denied.