Court: Court of Appeals for the Ninth Circuit; December 1, 2005; Federal Appellate Court
David Gonzalez appeals his conviction for being a deported alien found in the U.S. without permission, a violation of 8 U.S.C. 1326, following a conditional guilty plea. He argues that the district court should have dismissed the indictment due to alleged due process violations stemming from prior deportations, which he claims retroactively applied 8 U.S.C. 1228(b)(5), denying him the ability to seek discretionary relief under 8 U.S.C. 1182(h). Gonzalez also contends that his waiver of judicial review was invalid and that he suffered prejudice as he could have presented plausible grounds for relief from deportation.
The appeal jurisdiction is established under 28 U.S.C. 1291, and the court affirms the district court's decision. The background reveals that Gonzalez, born in Mexico in 1976, entered the U.S. illegally as an infant. His parents, who later became legal permanent residents, did not adjust his status, believing it could be done later. At 14, Gonzalez was misinformed by someone posing as an attorney about his eligibility to adjust status due to his tattoos. In 1994, he pled guilty to two counts of second-degree robbery, constituting an aggravated felony and rendering him deportable. The legal landscape changed with the amendments to immigration laws by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996, which stipulated that non-LPR aliens convicted of aggravated felonies face expedited removal without an immigration judge hearing and are ineligible for relief.
On December 8, 1997, the Immigration and Naturalization Service (INS) issued a Notice of Intent to Gonzalez for a Final Administrative Deportation Order, citing his deportability under 8 U.S.C. § 1227(a)(2)(A)(iii) due to an aggravated felony conviction. The notice stated that Gonzalez could be deported without an immigration judge hearing and had the option to have counsel at his own expense and to seek judicial review within 30 days of the final order. Gonzalez chose not to contest his deportability, admitting the allegations and waiving his rights to rebut the charges and to appeal. A Final Administrative Removal Order was issued the following day, confirming his deportability and ineligibility for relief, leading to his deportation.
Gonzalez later reentered the U.S. and, in February 1999, received another Notice of Intent to Reinstate the December 1997 removal order, indicating his removability for illegally reentering. He was removed again in 2000. In a motion to dismiss an indictment, Gonzalez claimed his earlier waiver of appeal rights was invalid due to lack of information regarding eligibility for discretionary relief, arguing that § 1228(b)(5) should not apply retroactively. He contended that his deportations violated due process since he was eligible for relief under 8 U.S.C. § 1182(h) when he pled guilty. Supporting his claims, Gonzalez provided declarations from family members detailing the hardship caused by his deportation and from an immigration expert asserting he had a plausible ground for relief. The district court denied his motion, affirming the validity of his waiver and the applicability of § 1228(b), prompting Gonzalez to enter a conditional guilty plea.
Review of a district court's denial of a motion to dismiss a 1326 indictment is conducted de novo, specifically when based on alleged due process violations in a deportation proceeding. A defendant must show that (1) due process rights were violated during the deportation and (2) that such violations resulted in prejudice, as outlined in 8 U.S.C. 1326(d). Moreover, an alien is unable to challenge a deportation order if they have validly waived the right to appeal during the proceedings, with such waivers needing to be considered and intelligent. A waiver is not deemed intelligent if the immigration judge (IJ) fails to inform the alien of possible relief options, leading to prejudice.
In the specific case of Gonzalez, he was ineligible for discretionary relief due to his status as a non-LPR alien convicted of an aggravated felony, which subjected him to expedited removal procedures without a hearing. Gonzalez contends that his waiver of the right to appeal was invalid for two reasons: first, he argues that the bar against discretionary relief was retroactively applied inappropriately since discretionary relief was available when he pled guilty; second, he asserts that he was not informed of such relief options, violating his due process rights.
To assess whether a statute has an impermissible retroactive effect, it must be clear that the law is intended to be applied retroactively. If not explicitly stated, the statute's potential retroactive effect is evaluated based on whether it imposes new negative consequences on prior actions without fair notice or disrupts settled expectations. Gonzalez's argument references the Supreme Court's ruling in St. Cyr, which found that the repeal of INA 212(c) retroactively affected aliens who relied on the possibility of discretionary relief when pleading guilty to aggravated felonies.
Section 212(c) relief is unavailable to aliens who have served a term of imprisonment of five years or more for an aggravated felony, as per 8 U.S.C. 1182(c) (1995). The Court highlighted that many defendants, including Charles Jideonwo, made plea decisions based on the expectation of potential 212(c) relief, which influenced their choice to accept plea deals rather than go to trial. In contrast, the Court determined that Gonzalez did not possess similar settled expectations of relief at the time of his guilty plea in 1994, as the statutory bar to 212(c) relief does not exist under 212(h). Although Gonzalez could have sought adjustment of status or a waiver of inadmissibility, there was no evidence that he pursued these options or that a visa would have been available. Consequently, unlike St. Cyr, who had a significant likelihood of obtaining 212(c) relief, Gonzalez’s chances were remote, leading to the conclusion that he lacked settled expectations of relief when pleading guilty. The case of Alvarez-Barajas v. Gonzales, which allowed the retroactive application of a provision barring 212(h) relief for aggravated felons, does not apply here since that provision pertains exclusively to lawful permanent residents, a status Gonzalez has never held. The ruling ultimately emphasizes Gonzalez's failure to demonstrate that his expectations were disrupted by the applicable laws.
Gonzalez was ineligible for 212(h) relief at the time he received a Notice to Appear on December 8, 1997, due to the 1996 amendments to 1228(b)(5). His claim that his waiver of rights was invalid because he was not informed of eligibility for relief is unpersuasive, as established case law indicates that such a failure only constitutes a due process violation if the alien can demonstrate prejudice. Consequently, Gonzalez's waiver of the right to appeal was deemed valid. As a result, he is barred from collaterally attacking the deportation orders linked to his indictment for violating 1326, as a valid waiver of appeal rights precludes such challenges. The district court's judgment is therefore affirmed. Additionally, it is noted that most functions of the INS have been transferred to the Department of Homeland Security, and there is no express language in 1228 regarding retroactive application, leading to further analysis.
