United States v. Arturo Lopez-Vasquez

conclusion is announced as fense. That despite discussion

holding the absence why the evidence—the explanation as to objective fa-

only independent and evidence Spencer on the central issue in the

vorable confusing or have

case—would been majority’s That the conclusion

wasted time. enough. That it consti-

is incorrect is bad authority an abdication of its

tutes both ruling a critical of the district court wholly unreasoned endorsement of the court’s action is far worse. The dis-

lower ruling deprived

trict court’s the defendant of decision, majority’s

a fair trial. The both form, original simply and amended rub-

its

ber-stamps wrongful Any action. defen-

dant entitled to more from the

system. America,

UNITED STATES

Plaintiff-Appellee, LOPEZ-VASQUEZ,

Arturo

Defendant-Appellant.

No. 92-50271. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Jan. 1993.

Decided Feb. 1993. Rehearing

As Amended Denial

Rehearing En Banc June

Dissenting Opinion from Order Rehearing

Denial of En Banc of Judge

Circuit O’Scannlain

Aug.

OPINION PER CURIAM: I. deported May Lopez-Vasquez was

Arturo attempted August 1991. On from Mexico to enter the United States patrol checkpoint. He told through a border patrol agents he was a United States border no identification because his citizen but had Lopez-Vasquez con- been wallet had stolen. bag agents to a search of his sented the name “Arturo Vas- found a card with Lanahan, Federal Defenders of San John quez.” computer A search under that name Inc., CA, Diego, Diego, for defendant- San history an extensive criminal revealed appellant. including prior deportations, May Lopez-Vasquez was arrested and Alvarez, Jay Asst. L. Walker Sherri reentry deportation in vio- indicted for after CA, Diego, plaintiff- Attys., for San pretrial § mo- lation of 8 U.S.C. appellee. tion, May Lopez-Vasquez contended his deportation could not serve as the basis for a § 1326 because his waiver conviction under of his order knowing intelligent. court was not BROWNING, Before: POOLE and Lopez-Vasquez denied the motion. entered NOONAN, Judges. Circuit plea guilty, preserving a- conditional the denial of his motion. ORDER II. Lopez- opinion in United States v. prior depor A that a in a claim defect 92-50271, op. Vasquez, slip Cir. No. precludes depor on the tation order reliance 1993) Feb. is amended as follows: prosecution in a for violation of 8 tation presents questions “mixed U.S.C. Amendments have been Note: [Editor’s judg requiring law and fact us to exercise incorporated published opinion.] into legal principles. Accordingly, ment about vot- With these amendments [Lopez-Vasquez’s] claims de novo.” deny petition rehearing for and to ed to Proa-Tovar, reject suggestion rehearing for en banc. (9th Cir.1992) (en banc). sugges- The full court was advised of the A. judge requested An tion for en banc. active Lopez-Vasquez deported from the the matter en vote on whether rehear 3,May group 1991 after a majori- banc. The matter failed to receive a hearing with at least eleven other aliens. ty active of the votes nonrecused immigration judge spoke to Although the judges in of en bane consideration. favor through interpreter, he Lopez-Vasquez Fed.R.App.P. 35. him, did not ask other member of the petition rehearing personally ap- group, for is denied and whether he wished Instead, suggestion rehearing deportation.1 peal en banc is re- he addressed jected. group: them as a exchange 1. The total between A: No. immigration judge follows: you inspec- Lopez, Q: did enter without Lopez, you get Q: Mr. Mr. want to the free year? lawyer? January 9 of this please you that I can talk together stand so about Please answer THE COURT: the deci- you Again, all understand that. let the record reflect that no gentlemen, do your case? standing. sion one is Yeah! ANSWER: _ There’s no and so the deci- you accept the decision [If] THE COURT: going give is final. I am [inaudible] sion now, you deported to final and will it is you immigration attorney and the service tonight. you But do not have to Mexico copy of the I all decision. And do wish you deportation. If think accept you good hearing luck for the future. The your any rea- unjust in case for wrong or you for is finished. son, appeal higher to the you can the case legal way saying to Appeal court. is the higher study court for

send the ease B. you in Now all of should have and review. that, process requires Due “where Spanish language your possession the form a determination made in an administrative If Regardless of the [inaudible] I-648A. proceeding play is to a critical role in the please now. you not have a form stand do sanction, subsequent imposition of a criminal one is stand- Let the record show that no meaningful there must be some review of the ing. principle administrative This Gentlemen, explains appeal [form] this very at the least that where the de means doing. I [inaudi- like am And about proceeding fects an administrative fore money, appeal that cost to make an ble] judicial proceeding, close review of that an you forget about that if have no mon- but judicial obtaining alternative means of you charge. free of ey; can file the an must be made available before administra give you help paper I with the work. [will] may tive order be used to establish conclu you if you if do not know at this time Even sively an element a criminal offense.” says you appeal, the law can want Mendoza-Lopez, United States v. 481 U.S. next your reserve for the 837-38, 2148, 2154-55, 828, 107 S.Ct. days and think about it. (em (citations omitted) (1987) L.Ed.2d 772 Gentlemen, any you if do not under- phasis original); also Yakus v. United see you any if appeal, about or have stand 444, 660, 677, States, 64 S.Ct. appeal, please questions about stand now (1944). Although deportee 88 L.Ed. 834 you. I talk to Let the record so that can right to review of his waive his standing. If show that no one is order, “con that waiver must be you appeal your higher case to the want to Otherwise, intelligent.” Id. court, your sidered and you to reserve want it, deportee deprived of review in days and think for about year your Q: What was first here? [no indicated] answer Sir, you charged entering Q: A: 71 are with family you country inspection, you Q: What have here? without understand charge? A: All of them. Well, Q: who? [no indicated] answer mother, my my charge your My Q: kids. A: wife Is this true in case? wife, they legal? your Q: are Your mother [no indicated] answer Immigrants? charge deportability Q: is this The second you drug charge. answer [no indicated] I want to ask on October through immigrant Why you Q: you Superior aren’t were convicted in Court in Angeles possession heroin? them? Los for arrange papers file the [inaudi- A: I never A: Yes. Well, they Q: ble] have a technical error on Well, immigrant you apply Q: status deportability. going did for drug charge This is Immigra- great in 1971? cause trouble for me until the indicated] with it. answer [no Q: tion Service can become comfortable just happened? papers going only entry inspec- What You filed But I'm to sustain Tell, sir, you forgot charge your about them? tion anything case. your indicated] answer [no defense? sir, you down. Thank sit answer [no indicated] to waive his wished process.2 due violation of impossible to made it the waiver. See silence mass burden bears 387, 404, Williams, voluntary he made Brewer v. determine (“it 51 L.Ed.2d do so.4 Mass silent intelligent decision to prove ‘an State incumbent [is] individual detain- waiver creates risk or abandonment relinquishment intentional by the silence of feel coerced their ees will (citation ”) privilege.’ right or a known judge’s directive fellows. every omitted).3 ‘indulge should “Courts appeal a detain- preserve that to waiver,’ and against reasonable you I can talk to up “so that ee must stand acquiescence presume ‘not they should nothing to lessen this that” did risk. about ” Barker v. Win rights.’ of fundamental loss Indeed, detainees stigmatize it tended go, 407 U.S. convey message and to wished omitted). (citations L.Ed.2d 101 contingent and appeal was disfavored that govern the held Although we have immigration with the upon further discussion deportation hear group may conduct ment judge.5 comport with due proceedings if the ings immigra notes the government The also Nicholas-Armenta, v. process, States United right judge explained the to and tion (9th Cir.1985), 1089, have 1091 763 F.2d provided with a form Lopez-Vasquez was by a is satisfied due never held that Spanish. right appeal an in explaining his to right appeal to of the silent waiver mass support argument an might facts that These deportation order. right to Lopez-Vasquez what his knew requiring that government argues was, that they fail to demonstrate appeal but right assert his to detained alien wishes right Lopez-Vasquez’s silent provides questioning for appeal to stand “intelligent.” and itself “considered” was waiver was input the to ensure sufficient Mendoza-Lopez, 481 U.S. v. disagree. The intelligent. knowing We and 828, 840, 107 95 L.Ed.2d 772 effort to deter- judge no made (1987).6 individually Lopez-Vasquez mine whether they immigration judge's inquiry as to whether explained in 2. Court As the Mendoza- fact, appellate process.” In understood group responded Lopez, question to the each accept legal conclusions of We case, and the decision in his understood hearing vio- court below Lopez-Vasquez reveal whether record does not respon- If violation lated due joined response. place rights in this case that took dents’ deprivation complete to a amounted rehearing, government petition In its for determination, that determina- review of the when asked to do so asserts some aliens stand penalty may enhance the not be used to right appeal. they wish to assert their entry § We think for an unlawful under government's does not observation undermine Judge Immigration permitted it did. The procedure makes it our conclusion that this im- right were not the waivers of the possible who do to determine whether aliens by respon- judgments result of considered voluntary and have made a deci- stand their Because the waivers of dents .... right appeal. to waive their sion intelligent, or appeal were not considered deprived respondents were Lopez-Vasquez government argues 6. The also proceedings. of their ought to have known of his be- Id., S.Ct. at 2156. U.S. at 107 intelligence compe- average he is of cause tence, during confusion he never demonstrated placed appear to have 3. Other circuits prior hearing, and his criminal record proof did not on the defendant burden of familiarity deportations with de- demonstrate proof burden of in the allocation of consider appeal. proceedings portation Fares, F.2d States v. See United Brewer. arguments point. Lopez-Vasquez These miss the (2d 1992); v. Encarna States Cir. United 56-57 was, apparently knew what an 1992); cion-Galvez, (5th Cir. 964 F.2d appeal. to an Howev- aware er, had some Holland, States United immigration judge's comments (11th Cir.1989). requirement stand if wished detainees rights may conveyed preserve their misinterprets in at the record 4. The accept message their de- "appellant, along should respect by detainees stating that one least response portation appeal. and not "yeah” group, in state[d] with the impermis- prosecution silent waiver tion order under conclude mass 8 U.S.C. We sibly “presume[s] acquiescence” the loss of 1326 must more than demonstrate de- privation to a direct appeal and fails to overcome the from Barker, that order. The defendant also bears the “presumption against waiver.” See Proar-Tovar, prejudice.” burden of We reach 2189.7 requested 975 F.2d at supplemental 595. We the same conclusion United States Gon impact on zalez-Mendoza, briefs of the en banc decision 1014-1017 Cir. 1993). case. government argues Lopez-Vasquez

III. “had no relief available to him from his inev- deportation” prior itable because his criminal panel opinion in In reliance ineligible suspen- convictions make him Proar-Tovar, F.2d 1450 deportation, voluntary departure, sion of (9th Cir.1991), superseded by 975 F.2d 592 permanent lawful admission for residence.8 (9th Cir.1992) (en banc), Lopez-Vasquez Lopez-Vasquez argues necessary remand is prejudice no effort to show from the made present because he had no reason to evidence argue or to the issue of failure prejudice to the district court. court or on prejudice the district parties opening their briefs in neither After the filed Because nor the superseded question prej- court district court the en banc considered the of panel opinion incomplete, and held that defendant udice and the record is “[a] we are deporta- of a unable to to exclude evidence determine whether seeks by government responded 7. The cases cited from other and each that he did not wish argument support that a appeal. circuits do not its mass by appeal comports Calles-Pineda, silence of 'appellant alleged pro- In his due Holland, due In States v. with United cess were violated because he was "never (11th Cir.1989), 876 F.2d 1533 the court ulti personally by immigration judge.” addressed mately did decide whether waiver of the not upheld court observed “sub- Barraza-Leon knowing it was because procedures, passed stantial identical” but never prejudice inval found no even if the waiver were claim, although appellant's on the substance of Sosa, 854 F.2d 48 id. In United States v. Zaleta — alleged he the court noted Calles-Pineda had not (5th 1988), given upheld Cir. the court a waiver "prejudiced procedures in fact em- during personal exchange between one-on-one ployed.” 627 F.2d at 977. Calles-Pineda did immigration judge. See the detainee and the hold mass silent waiver Chavez-Huerto, also United States comports process deportation due order with (9th Cir.1992) (upholding waiver where 1087 because that issue was not raised. The citation expressly defendant waived in one-on-one appellant on the claim that had Barraza-Leon immigration judge); with conversation general right personally to be addressed Villa-Fabela, (9th 882 434 Cir. States F.2d immigration judge cannot transform the failure 1989) (same). holding that issue into a on the issue rule on petition rehearing, government In for its judge presented case because the instant our conflicts with United contends decision deportee asked each whether he Barraza-Leon Barraza-Leon, (9th Cir. 575 F.2d 218 responded and each that he did wished to Calles-Pineda, 1978), and United States v. appeal. not wish to Barraza-Leon, (9th 1980). Cir. F.2d 976 In observed, court Lopez-Vasquez has 8. The claims response judge's questions, only to the times since 1978 for theft of been convicted six record, appears single, reply translated influence, burglary, driving property, under the indicating respon- each the substance possession An of a controlled substance. respondent's [A]ll dent's answer.... statutorily ineligible suspension for alien is counsel, their all admitted de- waived good he show moral char- if cannot portability, As a and none wished acter, showing person can make such a and no result, question to each were the answers days imprisoned he has been for more than respon- for all of the translated as one answer years. Voluntary preceding de- over the seven helpful .... be more dents While would showing good parture requires moral char- precise, individual state- have a record of the years. previous five Lawful ad- acter over the respondent multiple deporta- ments of each permanent is not available for residence mission require hearings, process it. due does not tion of moral have a committed crime to aliens who gov- passage Id. at 221. This cannot assist Villa-Fabela, turpitude, theft. which includes ernment because it indicates 440-41. 882 F.2d at judge each alien whether he wished asked Mendo- interpretation of implications of the evidence indicat concrete provide “some can in Proa- za-Lopez upon which we settled appeal] right to [his ing that the violation affecting the Tovar. potential actually had the deportation proceedings.” of [the] outcome the de- Mendozar-Lopez holds that “where 1374, 1379 Cerda-Pena, v.U.S. fore- proceeding in an administrative fects Cir.1986). Accordingly, we remand proceeding, an of that review close of this issue.9 for consideration court

district obtaining alternative means the adminis- available before must be made Remanded. to establish con- order be used trative offense.” clusively element of a criminal THE ORDER FROM DISSENT at 2155. For REHEARING DENIAL OF OF reason, charged with the crime a defendant EN BANC country re-entering this after Aug. effectively who “was under 8 U.S.C. must be right to direct review” denied his O’SCANNLAIN, Judge, with Circuit a collateral attack permitted “to mount KOZINSKI, WIGGINS, HALL, whom pros- deportation proceeding [is] KLEINFELD, NELSON, TROTT, T.G. Proa-Tovar, under section 1326.” ecuted dissenting join, from Judges Circuit much is clear from F.2d at 594. So rehearing en banc: order of denial Mendozar-Lopez itself. announces a this court When attack, To succeed his collateral indeed, that misreads one new se rule — must show that his section 1326 defendant less than a we rendered an en banc decision proceeding violated due prior deportation empirical on an founda- year ago, that rests is, proceeding was —that unsubstantiated consisting defects,” procedural marked “fundamental any adds noth- that in event speculation, and 841, 107 Mendoza-Lopez, S.Ct. at right way protection for the ing in the of real in that these defects resulted good safeguard reasonably it is intended to — prejudice re prejudice to the alien. the en banc court. to assemble cause exists Mendoza-Lopez, in was quirement, obscure controlling rule stands that new se When Proa-Tovar, in Proa-Tovar. See made clear head, and precedent on its Supreme Court (“the at 595 Court has not eliminat 975 F.2d altogether notion the remarkable introduces prejudice equation”). ed from the ap- of a fundamental constitutional point here misses the that panel But the rehearing peal, for en banc becomes the case Mendoza-Lopez Proa- both underlies overwhelming. court has decided other- Our defendant’s entitle- Tovar: the section 1326 wise, respect- I that decision must and from prior a collateral attack on his ment to mount fully dissent. thing, merits of that deportation is one the something different. collateral attack I because, panel in this Perhaps the errs have, validly Lopez-Vasquez waived his panel whether begin us where the should Let plays in both these a role the Court’s with an examination of Nevertheless, two distinct Mendoza-Lopez, determinations. in v. decision United States First is the questions involved here. L.Ed.2d 772 are 107 95 S.Ct. Lopez-Vasquez was de- question (1987), en court and that of our banc review, Proa-Tovar, to direct thus prived of his v. 975 F.2d 592 (9th Cir.1992) (en banc). attack in entitling him to mount his collateral pan the For while (wholly sepa- proceeding. is the language of Second opinion quotes the el’s indeed rate) deportation was question whether his its reason Mendozar-Lopez, it fails to follow fundamentally unfair. fact panel ignores the ing. particular, In changed the outcome of could not have Lopez-Vasquez can make a violation 9. We note that showing prima prejudice, "the burden deportation proceedings." facie Id. government then shifts to the to show however, validity goes have done well to seek such waiver panel would legal questions. Consequently, circuits that have two different guidance from the other Mendoza-Lopez. panel says government when the that to “unravel the riddle” of forced been Tovar, waiver, proving 975 F.2d at 594. bears burden valid Proa- interpreted really saying things. two different Nei- All of these courts scrutiny. ther can withstand precisely as outlined above. decision Court’s Accord United States was Encarnacion-Galvez, States mentally All that he was tally unfair in some administrative under 8 U.S.C. entitled from Cir.1989) (“The ceeding and that the supposes Cir.1992). agree, deprived of to direct being an alien can him to relief on Fares, Holland, unfair.”) that “[T]he two-step process 251-52 used as a basis ^[1] is, proceedings were appeal, defendant must show effectively deprived of his that alien must show not 1326.” United F.2d (emphasis supplied). (8th prevent respect that would have proceeding “Mendozar-Lopez pre but also that Santos-Vanegas, Cir.1989); F.2d appeal.” for conviction (2d Cir.1992). determining fundamen States v. that he United ^[2] funda only pro (5th pez Mendoza-Lopez, 481 The Court did not mandate that collateral This is but the defendant was and therefore is entitled to mount attack, and is therefore not entitled to mount a collateral attack effect, attacks dicial review of his On the one defects exceptional clearly said rather that at 2155-56. review is be simply entertained as does not envision every hand, circumstances, irrational, deportation proceeding. bears the burden of creates a actually section 1326 improperly was not deportation proceeding, panel a matter must foreclosed because and Mendoza-Lo- deprived denied review 838-40, prosecution. saying such permitted is, collateral course, where thing. that See ju- hand, by insisting On the other II government prove a valid waiver of shortcomings Against backdrop, the bifurcating effectively the bur- starkly. panel’s opinion emerge proof fairness of den of as to fundamental Although deportee may waive his underlying deportation proceeding. For order, of his review up it is Lopez-Vasquez holds intelligent.” that waiver must be “considered defendant’s government prove the oza-Lopez, 481 U.S. at marred deportation proceeding was not [Mend 837-38, gov ... at here, 2154-55] S.Ct. any procedural fundamental defect — of the ernment bears burden implicating the defendant’s defect Williams, v. 430 U.S. waiver. See Brewer we held in Proar-Tovar Yet 387, 51 L.Ed.2d [97 S.Ct. the burden of defendant bears “[t]he (1977) (“it upon the is incumbent 424] proving prejudice” from such defect. relinquish prove intentional ‘an State simply irra- F.2d at 595. The result is right or of a known ment or abandonment justify carving up the Nothing can tional. (emphasis supplied, citation privilege.’”) proof single issue of funda- on the burden omitted). ad hoc manner. Be- mental fairness to consider the panel has failed cause Lopez-Vasquez, v. the frame- implications of its decision within merely respect, all due this is not non- With by Mendoza-Lopez and Proar- provided work It is nonsense on stilts. sense. Tovar, assign- hodge-podge of the it makes A proof. ment of burdens First, assigns panel the nonsense. B proving that Lo- government the burden of authority prop- As ap- Now the stilts. validly pez-Vasquez waived above, the burden bears explained osition that peal deportation. As then, What, panel’s on justifies the reliance here, panel cites Brew- proving waiver alleged waiver Why must an alien’s obviously Brewer? The citation is er v. Williams. appeal deportation illustrative; statutory right to of the merely than as more intended according to “the strictest order be tested Brewer as control- clearly regards waiver, the standard possible” standard in a foot- we are told Thus ling precedent. by the to waivers applied Court may appear to funda- circuits “[o]ther note rights in a criminal mental constitutional proof on the defen- placed the burden context, which “it is incum- a standard under allocation of burden did not consider dant prove waiver? The upon the State” to bent op. at Lopez-Vasquez, proof in Brewer.” explain.1 panel does not cases). (citing 754 n. 3. nothing in this con- controls But Brewer C was a in that famous case text. At issue stilts, pair add Under Amendment the Sixth waiver of purported skates: criminal defendant’s right to counsel. counsel, course, is a right to ‘indulge every reasonable “Courts should fundamental “indispensable to the right, waiver,’ constitutional against system adversary of our fair administration presume acquiescence should ‘not ” Brewer, at justice.” 430 U.S. of criminal rights.’ Barker v. of fundamental loss supplied). (emphasis 2182, at 1239 97 S.Ct. Wingo, [92 (citations employed the

Accordingly, the Brewer Court 101] 33 L.Ed.2d omitted). forth in of waiver set John- “strict standard” Zerbst, 458, 464, 58 S.Ct. son problem Lopez-Vasquez, op. at 754. The Brewer, (1938), 1019, 1023, L.Ed. 1461 Wingo passage that Barker v. with this is is, indeed, at which 97 S.Ct. Brewer, Like application no this context. might of waiver which strictest test “[t]he purported involving a case Barker was (White, at 1257 applied.” Id. at 97 S.Ct. rights— constitutional waiver of fundamental context, J., dissenting). In this it is no sur- here, speedy to a trial under heavy government “bears a prise that in- Amendment. The Court’s Sixth at 1241 proof. Id. burden” pre- junction “indulge every reasonable omitted). (citation premised sumption against waiver” was thus “acquiescence fear of the loss oí funda- however, a waiver At in this issue Indeed, again rights.” if we look mental of the statutory right to Zerbst, which is the source Johnson result of a civil quoted in Barker and relied language indispensable in no sense Such here, very point comes justice is not the fair administration of —it through and clear: loud In guaranteed matter of due as a in- pointed It out that “courts has been deed, simply not to an presumption dulge every reasonable Constitution, any by in this or protected the against constitu- waiver” fundamental principle is this context. So well established presume rights and that we “do tional fully century ago Supreme Court a the that acquiescence in the loss of fundamental say that citation of authorities “[a] could rights.” unnecessary.” McKane v. Dur point is the (citations ston, 58 S.Ct. at 304 U.S. (1894). omitted, emphasis supplied). L.Ed. 867 Proa-Tovar, contrary, panel main- the ous statement to the en banc court concluded 1. In to exclude evi- that defendant who seeks bears the burden "[a] tains that the prosecution deportation in a order dence of validity Lopez-Vasquez's proving waiver of dem- 1326 must do more than under 8 U.S.C. onstrate panel position take a How can the ap- deprivation right to a direct flatly decision on with an en banc is inconsistent peal The defendant also bears from that order. scarcely dry even at- ink is without which the Proa-Tovar, prejudice." the burden of tempting explain to itself? unambigu- face of this 975 F.2d at 595. upon right appeal is not the order be relied to establish an repeat: Let us Constitution, by even for crimi- element of a criminal offense. Mendoza- protected appeal Lopez say right to an is a does not that an alien who is nal defendants. The it, then, period. right appeal is statutory right deportation What denied the his justifies every thereby process; says reasonable is “indulging order denied due against right prejudiced by of the an alien is presumption waiver” the denial right right appeal way appeal, as would waiver of his such a as to trial, counsel, jury right right deportation proceeding or the or render his funda- Again, panel mentally accusers? is to confront one’s denied due unfair provide an answer. does not not, short, Mendoza-Lopez say does right guaranteed to an is as a D matter of due of law. The waiver of imported standard panel The the strict right to an is not the waiver of a con- applicable to the waiver of fundamental right. setting constitutional Cases forth rights, stitutional reviewing standards for waivers of funda- a context against rights, of such into rights mental constitutional are not control- rights of constitutional is where the waiver indeed, ling are not even rele- here — remotely at issue. Under Mendo- not even reasoning Lopez-Vasquez, vant. enjoys za-Lopez, Lopez-Vasquez three dif- then, just plain wrong. (1) right as a process rights: his ferent due to collateral review of 1326 defendant section E prior deportation where direct (2) him; improperly as a denied lengthy analysis necessary This because proceeding respondent to a fun- deportation panel’s holding entirely dependent proceeding; damentally fair presumption against waiver: “We a section 1326 defendant not as impermissibly conclude silent waiver mass penalties subject to criminal on the basis ‘presume[s] acquiescence’ the loss of the prior deportation that was not funda- and fails to overcome the Lopez- mentally fair. No one claims Barker, against See ‘presumption waiver.’ rights, whether Vasquez waived of these at 525 [92 2189].” validly invalidly. All of these are presumption indulged is the very proceeding, the and well in this alive thinking rule can only that a se basis rights if to vindicate those point of which is utterly govern That rule is or should here. only right they are indeed at risk. reliance on this non- compromised its alleged waived is Lopez-Vasquez is to have and it should not have presumption, existent statutory ap- right to an his unenumerated to stand. been allowed peal. proceeds as Mendoza- Yet Ill appeal deportation Lopez made the panel has There’s more. The necessary aspect process, of due such order a significance the fact that such an overlooked that a waiver attack on involved here is a collateral process right. If what is order is a waiver of due adjudication. follow, constitutionality prior true, of a as the this were it would indeed facially government here introduced think, of The the burden panel seems to to estab in an effort gov- valid order placed on the proving waiver should be the offense defined element of ernment, presumption against lish one that the “sought to de apply. But it is not true. section waiver should such normal force prive [its] of say pro- [the order] Mendoza-Lopez does not that due indepen an proceeding that had depor- effect in a appeal a guarantees the cess pri- to overturn the purpose other than order; guar- dent says tation it due — Raley, U.S. Parke v. judgment[ ].” or to some kind of antees the 517, 523, L.Ed.2d -, -, 113 S.Ct. deportation proceeding before review of the in sen- prior convictions used definition,” invalidity of (1992). a collat- that is “[B]y Guidelines). decisions tencing under the Id. eral attack. the same appeals are to courts of of the other difference, of as Jus- a world This makes — -, Raley, U.S. at See effect. v. recently explained Parke tice O’Connor examples in different (citing at 525 S.Ct. Kentucky sentence Raley. At issue was contexts). placed upon the which scheme enhancement invalidi- proving of the burden roughshod defendant simply ridden has state once the ty any prior convictions regularity” that “presumption of over the judgment. facially prior valid produced a final, depor- facially valid ought to a to attach held that this scheme had The Sixth Circuit pro- tation order. Once applied to a defen- was unconstitutional order, Lopez- up to it was duced such were prior convictions dant who claimed presumption, and to Vasquez to rebut in violation guilty pleas entered based on unfair- of fundamental prove the existence Alabama, Boykin rule in underlying deportation proceed- ness (1969). 1709, 23 L.Ed.2d 274 89 S.Ct. however, gone pre- panel, has ing. The rejection thought conjured of Ken- cisely opposite The Sixth Circuit direction: it has compelled burden-shifting tucky’s irregularity. pre- scheme This up presumption of waiver of by Boykin’s upon “presump- statement sumption in turn stands resulting guilty plea cannot from against of the “fundamental con- waiver” record.” “presume[d] ... from a silent not which does stitutional” 1712], which, exist, exist, U.S.] [89 at 243 S.Ct. [395 even if it did would justify shifting proof the entire burden of between the Ken- We see no tension a collateral government: “even when tucky Boykin. Boykin in- scheme and [adjudication] alleg- attack on a final rests on con- of a conviction volved direct review regu- grounds, presumption guilty plea. stitutional edly based an uninformed however, larity judgments to final makes that attaches appealed never Respondent, assign proof burden to the appropriate it They final convictions. became earlier -, at 524 defendant.” Id. at years ago, he seeks to revisit the and now (citation omitted). validity separate question of their Boy- import To recidivism ... and on Nonsense on stilts on skates presumption invalidity into this kin’s thin ice to boot. view, would, in our very context different improperly ignore another IV jurisprudence: deeply rooted in our panel has And there’s still more. The regularity” “presumption that attaches govern question crafted a se rule to question judgments, even when the to final Yet the Court has re- of waiver. rights. Al- waiver constitutional per se peatedly stressed that “inflexible though perhaps familiar with we are most place out of are all but actions, rule[s]” corpus principle in habeas context, question of waiver because the long applied equally to other been inherently fact-specific: collateral attack. forms of — ordinarily relin- A an intentional -, Raley, 113 S.Ct. at 523 of a known quishment or abandonment omitted). (emphasis supplied, citations privilege. The determination of unvaryingly principles These have been has been an waiv- whether there See, e.g., followed in our own cases. case, upon the depend, ... must in each er Pricepaul, 540 F.2d circumstances sur- particular facts and Cir.1976) (defendant bears burden of case, including rounding the back- proving invalidity guilty plea purposes of the ac- ground experience and conduct defending against charge being felon in cused. firearm); v. Car- possession of Zerbst, 458, 464, (9th Cir.1991) (defen- roll, Johnson (1938). Over and 82 L.Ed. constitutional dant bears burden

761 again, approved ap surrounding over the Court has stances that case.” Nonsense stilts, proach, validity purport skating under which the of a on thin ice ... blindfolded. waiver is to be determined “under the ed

totality bearing on that V circumstances” See, Stumes, e.g., waiver. Solem v. 465 U.S. Teetering awkwardly precarious on such a 638, 647, 104 1338,1343, S.Ct. 79 L.Ed.2d 579 foundation, legal panel’s per se rule is a Bradshaw, (1984); 1039, Oregon v. 462 U.S. rule, bad logic untenable as a matter of S.Ct. L.Ed.2d 405 policy. undesirable as a matter of (1983) (plurality opinion); Fare v. Michael panel procedure holds that em C., 707, 724-25, 442 U.S. 99 S.Ct. 2571- ployed by judge, whereby (1979); 61 L.Ed.2d 197 North Carolina respondents were invited to up stand Butler, 369, 374-75, 99 S.Ct. they appeal, always wished to “makes it im (1979). 1757-58, 60 L.Ed.2d 286 fact This possible to determine whether aliens who do “[ejven specific approach to is waiver the rule not stand have voluntary made a and intelli so fundamental as that to coun gent decision to waive their appeal.” Butler, sel at trial is involved.” U.S. Lopez-Vasquez, op. at 754 n. 5. But this is Indeed, at 1758. it S.Ct. has been false, plainly anyone as experience with in solitary excep observed that is there but “a these kinds of cases must understand. To be jurisprudence,” to [the Court’s] waiver in sure, procedure the use of this will some case-by-case approach which the has been prevent reviewing times court from deter in per abandoned favor of a se rule. Min mining that an individual made a considered 146, 160-62, Mississippi, nick v. decision not to But 486, 495, 112 (1990) (Scalia, L.Ed.2d 489 is invariably no means the case. In J., dissenting).2 cases, some the record will demonstrate that particular individual’s waiver of is validity If the of an individual’s waiver fully rational, eminently informed and even even of fundamental constitutional though transcript does not record him as invariably all but according be determined saying, “I may appeal, understand that I but totality circumstances,” to “the what token, I By wish to do so.” the same here, justifies per invalidity se rule easily imagine one can instances which the statutory right where the just statement, yet record will contain such question? say. doesn’t reviewing firmly court will be convinced Indeed, gone while the has out of its voluntary the words did not reflect a way import Zerbst’s strict standard of intelligently point decision made. The Brewer) (by way (or waiver and its indul- simply always usually) that it is not even gence every presumption against impossible judge tous the character of a Barker), (by way gone equally it just out decision not to because that deci way ignore injunction of its non-verbally. Zerbst’s expressed sion is See United Ortiz-Rivera, validity of a depend, waiver “must F.3d 763 Cir. case, 1993) curiam).3 particular each on the (per facts and circum- referring 2. Justice upon underlying Scalia was to Edwards v. Ari mount a collateral attack zona, deportation proceeding. 68 L.Ed.2d The facts were not dis- (1981), suspect's puted: guilty which held that a criminal Ortiz-Rivera a conditional entered plea stipulated invocation of his in which he that he had suffered Miranda to have counsel robbery, present gives previous presump state convictions for armed rise to an "irrebuttable cocaine, transportation against voluntary sale or unlaw- tion" waiver of that vehicle, driving taking of a he had ful response police-initiated interrogation. Min- deported past, itself, course, been twice and that he had nick is to the same effect. illegally sepa- entered the States on three provides good example as as Ortiz-Rivera rate occasions. 1 F.3d at 752. just misguided could be wished of how is the deportation hearing challenged as Lopez-Vasquez, just se rule of unfair, meanwhile, how foolish fundamentally Ortiz-Rivera and wasteful are the results forces us. respondents. was one of seven All were twice one, ("IJ”) immigration judge That like this was a section 1326 advised prosecution sought in which the defendant had a his decision as to their these as- quez, slip op. at 6638. Where do unambiguously ac fact we have

This is a sumptions come from? treating in cases a criminal de knowledged right appeal. Thus of the to fendant’s waiver and of the Given the facts this colloquy “a Rule 11 on the we have held that review, many it is similar cases we right appeal prereq is not a of the to waiver quite plausible indulge to a different set valid; a finding that the waiver uisite to surely assumptions. Lopez-Vasquez knew at knowing volun finding the waiver is and hearing that deportation that he the time of his v. DeSan tary sufficient.” United States theft of convicted six times for had “been influence, burgla- Cir. tiago-Martinez, property, driving under the 1992). gives panel’s ry, possession decision therefore and of a controlled substance.” addition, anomaly whereby, in at 755 n. 8. In “the staggering Id. rise to a appeal, and Lo- judge explained to circuit, respondents appeal rights of the provided with a form ex- pez-Vasquez deportation proceeding, being in a waivable court, plaining appeal Spanish.” Id. his to open only by express declaration at 754. Thus even the must admit subject greater procedural pro are thus to “Lopez-Vasquez apparently knew what an analogous rights than are the tections was, appeal and was aware he had some defendant in a criminal case. Cf. appeal.” to n. It not at Id. 6. Nicholas-Armenta, Lopez-Vas- all think that unreasonable to (9th Cir.1985) (“Respondents in a civil quez if he remained seated when asked hearing ... are not to entitled appeal he wished to his because afforded a criminal de the same appeal possi- an not knew full well that could fendant.”). him, bly help to be confined and did wish Moreover, empirical basis on which the long might in a center for as as it detention panel erects its rule is dubious at best. The effort. If we take such fruitless by eliciting invit- panel assumes assumptions, might are to traffic then we appeal ing an alien to if he wishes to stand very that an alien’s decision not well assume will “creates a risk that individual detainees appeal generally on rational self- rests fellows,” by their feel coerced the silence of hopelessness of an interest that counsels the stigmatize detainees who appeal “stigma” “tend[s] rather than the “coercion” Ortiz-Rivera, convey message panel. wish[] to identified See Lopez-Vas- supra.4 was disfavored.” Ortiz-Rivera, deportability. along appeal process with all in more have someone other detail and respondents, individually help you appeal application.” stated that he under- fill out the None right. respondents up. stood that he had such a Id. stood Id. at 768. record, engaged colloquy Despite He then in an individual such a com- IJ, English, pelled with the which the IJ observed he that Ortiz-Rivera's decision to us hold spoke During colloquy, well. Ortiz-Rivera remain seated when invited to exercise his lawyer, declined the offer of a free admitted that did not manifest a considered and offense, right. he had been the cocaine waive that That convicted of decision to deportable reality and further admitted that he was as conclusion defies in a fashion too obvious that, charged. having require He was then informed further comment. time, country might lived in this he for some eligible deportation, Again, exposes the flaws in the for waiver of asked Ortiz-Rivera panel’s opinion any legal immigration exists not even the whether he had ever had here. There that, papers. negative, explaining invited to if he He answered in the remotest chance stand apparently that he "was in a reference wished to Ortiz-Rivera failed to do so trouble” — Finally, [his] to his criminal record. he was asked because he felt "coerced fellows,” the silence of being "stigmatized” by "any argument there was at all” that he or feared legal right country. justice. didn’t be- He said desire for Ortiz-Rivera stand had to be in legal right he knew he had no to be in this no. Id. at 766-68. cause country that, place, questioned and knew as well After the IJ had the other six re- in the first record, hope spondents, deportability, given had all of whom conceded his criminal no remaining. going sign and "intel- he informed them that he was He made a "considered" indeed, downright ligent” deportations. sensible order for their He then re-advised decision— accept deportation, respondents immediate had a decision—to Mexico, decision, than anyone in his native rather and invited who wished to freedom "explain the remain in a detention center for who-knows- to stand so that he could deprived of his defendant was right to be concerned panel is if the Even underlying deportation order. The cir- “stigma” in these “coercion” about presump- government must further rebut cumstances, it has crafted per se rule deportation proceeding was not these con- little to address precious does by any procedural de- marred fundamental of twelve was one cerns. carry government’s The its fect. failure underlying deportation respondents presump- as to either of these two burden by the mandated procedure consequence shifting tions has the absurd require an would panel here defendant, then, mys- to the the burden individually respondent judge each to ask prove prejudice. teriously, must The law Suppose Lo- he wished to that a this circuit also now holds non-verbal respon- been the twelfth had pez-Vasquez per se un- waiver (as suppose is not questioned, so dent unconsidered, unintelligent, knowing, declined fellows had unlikely) that each reviewing lack the means and that courts suppose that the him. appeal before Now a valid waiver from a record discern his attention to Lo- immigration judge turns approximation not contain does some sir, you, you do wish to pez-Vasquez: “And ritual, appeal.” “I verbal wish To Might this not be even my ruling?” affairs, arrive at this weird state actually procedure than the coercive more three-judge panels had to suffer one of our here, for the making even harder employed it not, aside, authority wittingly cast review? his desire for respondent to assert own en Court and of our banc stigma fears The coercion court. proceed- any group deportation inherent law should be otherwise. Our suffer- Our however, unquestion- ing. proceedings, Such far. ance should not extend so We have See, e.g., ably do not offend due things right. up opportunity to set passed Nicholas-Armenta, By at 1091. its respectfully I dissent. aspect for one of these concern oversolicitous actually panel may have proceedings, good more harm than

done protect.

means event, that it if the believed facts, these a valid on not find could America, UNITED STATES did, predi- evidently then it should have itas Plaintiff-Appellee, on these its order of remand cated facts. assumptions by the general advanced way support se rule that panel in no ORTIZ-RIVERA, Defendant- Raul disregard specific facts of us to forces Appellant. meanwhile, itself, particular cases. rule 92-50469. No. that are both inevitably foster will results Indeed, already hap- unjust. Appeals, it has silly and States Court Ortiz-Rivera, supra. Ninth Circuit. pened. See March 1993. Argued and Submitted VI April Vacated Submission - stilts, skating Kersplat! Nonsense on 29, 1993. Resubmitted June topple in the thin ice must blindfolded July Decided end. that, in this circuit now states The law of govern- prosecution, the

every section presumption that the rebut

ment must review, case to the remand the and to obviously appeal wound how-long futile while an proceedings. District yet way through system. And we were for further district court its compelled by Lopez-Vasquez things many important to hold that Ortiz- to do. more courts have improperly deprived Rivera was

Case Details

Case Name: United States v. Arturo Lopez-Vasquez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 10, 1993

Citation: 1 F.3d 751

Docket Number: 92-50271

Court Abbreviation: 9th Cir.