United States v. Jose Mendoza-Lopez, United States of America v. Angel Landeros-Quinones
781 F.2d 111
8th Cir.
1986
Check Treatment

*1 HEANEY, GIBSON R. Before JOHN Judges. Circuit HEANEY, Judge. from the dis-

The United States il- two missal of the indictments in this 8 U.S.C. legal immigrants forth be- reasons set For the low, we affirm. *2 addressed this split. issue are The more

BACKGROUND Tenth, restrictive view is found in the Fifth and Lande- and Second Arriaga-Ra Circuits. See ros-Quinones immigrants illegal from were (10th mirez v. United 325 F.2d 857 They Mexico. lived in the United States Cir.1963); United States v. Gonzalez-Par years they for were more than seven when ra, (5th Cir.1971); 438 F.2d 694 picked up by agents ella, (2d States v. Petr 707 F.2d 64 in Nebraska. Cir. Naturalization Service 1983). they After a were not These reason at which Courts that since Con represented counsel, they deport- by gress were provided separate has three avenues deportation, ed. were Six weeks after deportation of administrative Nebraska, charges arrested in findings, see 8 U.S.C. it intended re-entry without authorization under 8 possibility to foreclose the of collateral at U.S.C. 1326. tack on such in section 1326 Ninth, cutions. The Third and Seventh Cir trial, suppress At moved to defendants cuits, hand, govern- permit on the evidence of their The other collateral argued ment amounted that the motion attackes on orders. See Unit impermissible collateral attack on Bowles, (3rd ed States v. 331 F.2d 742 that, nevertheless, Cir.1964); United v. Gasca-Kraft, rights had defendants’ constitutional not (9th Cir.1975); 522 F.2d 149 United States been violated. The district court concluded Rosal-Aguilar, 652 F.2d 721 Cir. deporta- that defendants could attack the 1981). These Courts reason that a material procedure legal and that prohibited element of the by offense deportation hearing, counsel at the com- is a U.S.C. 1326 “lawful” inability bined with the defendants’ to un- that, therefore, prosecuting when a section proceedings, derstand the violated the con- proceeding, government must cept of fundamental fairness. The unlaw- prove beyond a reasonable doubt that the presence charges ful were dismissed. On illegally defendant entered the United appeal, government argues that being deported according States after by permitting trial court erred the defend- Gasca-Kraft, law. 522 F.2d at 152. Under collaterally ants to attack their reasoning, this the defendant must be able and, any event, in that the defend- contest the lawfulness of the process ants were afforded due at the de- agree section 1326 We portation hearing. Allowing with this rationale. a DISCUSSION underlying deportation review of the to ex process amine provided whether Supreme expressly

The Court rights insures fundamental fairness to the question reserved the a whether defend Accordingly, of the criminal defendant. collaterally ant can attack conclude that Spector, order. defendants section 1326 (1952).1 prosecutions may collaterally 96 L.Ed. 863 attack their previous deportation States Circuit Courts which ground have orders on the government argues Supreme by Congress 1. The that which disclosed an intent to enact terms, prohibit sweeping prophylaxis, simple Court's intent to collateral attacks in "a Id., proceedings apparent misuse of was made firearms.” 445 U.S. at Lewis v. United 100 S.Ct. at 920. L.Ed.2d the Court held controlling. prior Lewis is In Lewis the not defendant, posses- that the in a judicial, decision was administrative. felon, by sion of a firearm could not collat- Moreover, while it can be said that conviction, erally prior though attack his even legitimate prohibiting pos- had a interest in the court assumed that the conviction was the by session of firearms those whose brushes with guilty plea. result convictions, of an uncounseled The Court only the law resulted in invalid it itself, upon language relied of the statute cannot be said that likewise intended noting aliens, expel country conviction was not re- all even those "valid,” quired statutory history, legitimate right to be and the who have a here.

H3 supportive government’s indeed of the process at not accorded due hearing. view. starting point interpretation is whether the district question next language of the any statute is the statute finding process a due viola- court erred itself. the record reveals that tion. Our clearly speaks only 918. Section 1326 clearly is not court’s conclusion district *3 quality previous fact and not the of a depor erroneous. (1) “Any tation. alien been arrest who— continu had been Both defendants * * 4 deported (2) ed and and thereafter for a in the United States ously present * * * enters the United States the [without years at the time of exceeding seven period Attorney shall consent of the General] hearing. They were there the guilty felony.” 8 1326. “The of a U.S.C. suspension of eligible for fore any express reference to the validi (IU) Judge did not Law Immigration of the arrest indi ty of the or about the defendants adequately inform punish the that the statute seeks to cates relief, required by 8 as is alternative reentry previously alien unauthorized of an 242.17(2). did not The defendants C.F.R. § depor deported, regardless of whether the choices consequences of the the understand ” v. Pe tation was ‘lawful.’ United States Had forced to make. 64, (2d Cir.), trella, 707 F.2d 66 cert. de consequences, of such fully aware been 921, 289, nied, 104 464 U.S. 78 the likelihood that is a substantial there Lewis, 455 at L.Ed.2d 265 U.S. “ma hearing would have been the result of 60, (“No at 918 modifier is 100 S.Ct. Therefore, the defend terially affected.” nothing suggests any restric present, and from the IU’s prejudice ants demonstrated scope [deported].”) tion on the of the term fully comply provisions with the to failure Despite plain language of the stat 242.17. Because the defend 8of C.F.R. § ute, today adopts position the court proceed fully understand did not ants deportation is a material ele that a lawful fundamentally un ings, the was Although a section 1326 offense. ment of fair, order was ob should be ambiguous criminal statute Thus, it cannot stand unlawfully. tained lenity, of Rewis v. resolved in favor see forming the element basis as a material 812, 808, 401 charges against the defendants. (1971), 1056, 1059, Ac properly dismissed. indictments were unambiguous statute interpretation of an cordingly, affirm. * * * appli has no lenity “any principle dissenting. Judge, 65, 100 at S.Ct. at 445 U.S. cation.” respectfully disagree with the court’s I 920. can attack col- determination that an alien is history of section 1326 legislative deportation order as a laterally previous suggestion that barren to a under U.S.C. defense ques willing allow a defendant deportation or validity of a tion the order of the district I reverse H.R. prosecution. would See in a section der Sess., Cond., dismissing 1365, the indictments 2d re court Rep. 82d No. Landeros-Quinones. Cong. & Ad. U.S.Code in 1952 printed addition, reading view, my de- my 1653, In News history prosecu- legislative its section 1105a and portation of section proce- the “sole and exclusive me to the conclusion tions because leads depor on obtaining judicial of de- attacks intended to bar collateral dure” for compre- is embodied portation orders tation in re enacted of 8 U.S.C. 1105a was provisions 1326. Section

hensive review congressional concern over gives sponse short Although the court 1105a. deporta effectively the inability to enforce 445 U.S. v. United shrift to Lewis (1980), immigration laws provisions of L.Ed.2d 198 depor- repetitive attacks analysis is frivolous I the Lewis believe ante at First, H.R.Rep. No. 89th orders. See the focus of section 1326 on the mere Cong., Sess., reprinted 1st in 1961 U.S. fact of and unlawful Cong. Code Ad.News 2967. “The & light congressional rational in pur- purpose of section 5 is pose [of amendment] judicial to streamline review of single, separate, statutory to create a form Second, tation orders. judicial review of administrative orders provide comprehensive, scheme does al- for the and exclusion of aliens exclusive, beit format for States, by adding from the United a new deportation orders. and Na- [1105a] subject opportunity has an tionality Act.” at 2966. Id. outside of section 1326 to expressly supplies

Section 1105a of the order. See procedures “sole 65-67, and exclusive” available 920-22; see also yet departed to aliens v/ho have not Cruz-Sepulveda, v. De La the United States “to obtain (5th Cir.1981). deportation.” of all final orders of U.S.C. *4 Because provides section 1105a the “sole 1105a(a). Under the frame- § obtaining exclusive” method for judi- may work an alien obtain review in cial I would ways. several may hold that an alien challenge (“[I]t important to note deportation order in his section 1326 deported] that an ordered is not with- [alien cution. I would reverse the dis- relief.”). First, may out obtain trict court’s dismissal of the indictments civil review of a order in the against Mendoza-Lopez Landeros-Qui- appeals. federal courts of 8 U.S.C. nones. 1105a(a). Second, custody an alien in § corpus obtain habeas review. 8 U.S.C. 1105a(a)(9). Finally, prosecuted 1252(d) (violation of su- 1252(e) pervisory regulations) or 8 U.S.C. §

(willful depart) may failure of an alien to orders 1105a(a)(6). motions. 8 U.S.C. § re AMERICAN COMMERCIAL LINES, INC., Tugs Owner and Inland reviewing comprehensive

After Co., Owner, pro hac scheme for review that is available vice of the BARGE to aliens under section the Second CHEM-104 an action for exoneration Circuit and the Fifth Circuit have conclud liability. limitation of and/or ed that permitted aliens are not to chal AMERICAN COMMERCIAL BARGE lenge deportation during prosecu COMPANY, Appellant, LINE tions for unlawful under section Petrella, 1326. See United States (“[N]either F.2d at 66 the statute on its COMPANY, Appellee. MONSANTO

face nor the statutory scheme for No. 84-2096. orders authorizes a Court of original conclude, deportation. We therefore, Eighth Circuit. intended to bar prosecutions.”); collateral attacks in 1326 Submitted Oct. Gonzalez-Parra, Decided Cir.) (“We think it clear that Congress intended to bar collateral attacks under 1326.”), denied,

8 U.S.C. cert. impedi-

Nor do I see constitutional expressed

ment to the view this dissent.