United States v. Carlos Saucedo-Velasquez

Citations: 843 F.2d 832; 98 A.L.R. Fed. 871; 1988 U.S. App. LEXIS 5795; 1988 WL 33511Docket: 87-1531

Court: Court of Appeals for the Fifth Circuit; April 18, 1988; Federal Appellate Court

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Carlos Saucedo-Velasquez, a Mexican citizen, appealed his conviction for illegal re-entry into the United States after deportation under 8 U.S.C. Sec. 1326, arguing that his deportation was unconstitutional since he was a minor (17 years old) at the time it occurred on July 16, 1986. The district court denied his motion to dismiss the indictment, stating he had received due process during the deportation. Saucedo-Velasquez subsequently entered a conditional guilty plea, preserving the right to appeal the dismissal ruling, and was sentenced to two years in prison, with most of the sentence suspended. The appeal highlighted a recent Supreme Court ruling in United States v. Mendoza-Lopez, which raised concerns about using civil deportation outcomes in criminal cases and emphasized the constitutional right to challenge deportation proceedings that might violate due process. The Court noted that while 8 U.S.C. Sec. 1326 does not allow for collateral challenges during criminal trials, due process requires the opportunity to contest deportation validity, especially if rights to judicial review were not communicated. However, it did not define which procedural errors would automatically invalidate the deportation as a basis for criminal charges.

Appellant claims a violation of his due process rights during deportation proceedings, arguing that his status as a minor necessitated legal representation, rendering the hearing fundamentally unfair. The record indicates that during the July 16, 1986, group deportation hearing, the Immigration Judge informed attendees of their right to counsel, and while some opted for representation, appellant chose to proceed without an attorney, admitting his deportability without requesting relief. Appellant contends that being a minor rendered him incompetent to waive counsel and that the judge failed to inquire about the age of the deportees.

The legal standard for evaluating a minor's waiver of rights, as established by the Supreme Court in Fare v. Michael C., employs a "totality of the circumstances" approach, assessing the minor's age, experience, education, background, intelligence, and understanding of their rights and the consequences of waiving them. The review concluded that appellant's waiver was constitutionally valid; he possessed substantial knowledge of immigration and criminal procedures, having previously navigated these systems and been deported before. His inquiries during the hearing about voluntary departure further demonstrated this understanding. The absence of evidence indicating that his waiver was involuntary or coerced led to the conclusion that requiring counsel for all minors regardless of their knowledge would create an undue and inflexible standard. Thus, the court found no fundamental unfairness in the proceedings and determined that due process rights were not violated.

No improprieties were found in the 1986 deportation hearing, and the appellant's due process rights were not violated due to his age of 17. The hearing was deemed fundamentally fair, allowing the deportation to serve as a basis for his conviction under 8 U.S.C. Sec. 1326 for illegal reentry after deportation, which is thus affirmed. 

8 U.S.C. Sec. 1326 states that any alien who has been deported and then reenters the U.S. without prior consent from the Attorney General is guilty of a felony. Although deportation is a civil proceeding with no Sixth Amendment right to counsel, aliens have a Fifth Amendment right to counsel if it would violate due process and a statutory right to counsel, which must be communicated to them, along with access to free legal service lists.

Special procedures for deporting individuals under 16 years of age were not applicable since the appellant was over 16 during his deportation. He does not contest his deportability but claims that having counsel might have led him to pursue voluntary departure more vigorously. However, the Attorney General has discretion in granting voluntary departure, which requires proof of good moral character for the five years preceding the application. The criteria were explained during the hearing, and the appellant does not seriously assert he met them at that time.

The appellant also claims mistreatment by other aliens in the holding pen and that the Immigration Judge's comments about the voluntary departure process led him to accept deportation prematurely. However, these allegations do not demonstrate that his decision was involuntary; rather, the record suggests he accepted deportation due to a lack of viable options for voluntary departure. The absence of defects in the 1986 hearing forecloses any judicial review of the proceeding.