UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel MURO-INCLAN, Defendant-Appellant.
No. 00-50016
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 15, 2001. Filed May 8, 2001.
249 F.3d 1180
Timothy Searight, Assistant United States Attorney, Los Angeles, California, for the appellee.
Before: TASHIMA and FISHER, Circuit Judges, and ZILLY, District Judge.1
ZILLY, District Judge:
Appellant Juan Manuel Muro-Inclan appeals the district court‘s denial of his motion to dismiss the indictment. Appellant argues that he could not be convicted under
PROCEDURAL HISTORY
On February 2, 1999, Appellant Juan Manuel Muro-Inclan was indicted on one count of Illegal Alien Found in the United States Following Deportation in violation of
Appellant then filed the present appeal of the denial of his motion to dismiss. He has also filed a supplemental brief arguing for the first time on appeal that his sentence of 77 months violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellant alleges that Apprendi was violated because his sentence was enhanced based on prior aggravated felony convictions that were neither admitted nor submitted to a jury and proven beyond a reasonable doubt.
IMMIGRATION HISTORY
Appellant was brought to the United States by his parents as an infant. In 1984, he married a United States citizen, and they have three children who are United States citizens. Appellant‘s parents are lawful permanent residents of the United States. Appellant has never achieved lawful permanent resident status. He has been deported from the United States on five separate occasions.
LEGAL STANDARD
A. Due process requirements.
The Court of Appeals reviews de novo the denial of a motion to dismiss an
In a criminal prosecution under
However, an alien is barred from collaterally attacking an underlying deportation order “if he validly waived the right to appeal that order” during the deportation proceedings. Arrieta, 224 F.3d at 1079, citing United States v. Estrada-Torres, 179 F.3d 776, 780-81 (9th Cir.1999). “In order for the waiver to be valid, however, it must be both ‘considered and intelligent.‘” Arrieta, 224 F.3d at 1079, citing United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Such a waiver is not “considered and intelligent” when “the record contains an inference that the petitioner is eligible for relief from deportation,” but the Immigration Judge fails to “advise the alien of this possibility and give him the opportunity to develop the issue.” Arrieta 224 F.3d at 1079, quoting Moran-Enriquez v. INS, 884 F.2d 420, 422-23 (9th Cir.1989).
Appellee asserts, and the district court agreed, that Appellant is barred from pursuing his due process claim because he did
However, as discussed directly above, due process requires that such a waiver of appeal be “considered and intelligent.” Arrieta, 224 F.3d at 1079. The exhaustion requirement of
INS regulations require that a person facing deportation be advised of the possibility for relief from deportation.
Section 212(h) of the Immigration and Naturalization Act, codified at
in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien‘s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.
The government argues that this provision was not an available avenue of relief from deportation at the time of Appellant‘s 1997 deportation. It asserts that “[section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)] was the controlling authority. Section 440(d) divested the Attorney General of the discretion to relieve from deportation those persons who had previously been convicted of aggravated felonies.” However, AEDPA Section 440(d) did not divest the Attorney General of discretion to grant relief from deportation under
B. Showing prejudice.
When a petitioner moves to dismiss an indictment under
In the case of possible relief under
Appellant argues that his due process rights were violated during his deportation proceedings because he was never notified that he might be eligible for relief from deportation under
However, even assuming that Appellant has demonstrated a due process violation here, he has failed to satisfy the second requirement for the collateral relief he seeks, that being “prejudice as a result of the [due process] defects.” Arrieta, 224 F.3d at 1079. To demonstrate prejudice, Appellant must show that there was a “‘plausible’ ground for relief from deportation” if he had sought such relief at the time of his underlying deportation proceedings. Id., citing Arce-Hernandez, 163 F.3d at 563. As noted above, to establish a ground for relief under
The district court relied on Arce-Hernandez in finding that Appellant has not shown that there was a plausible ground for relief in this case. In Arce-Hernandez, petitioner demonstrated that deportation would require him to move his citizen wife and children to Mexico or leave them behind in the United States to face “economic hardship.” Arce-Hernandez, 163 F.3d at 563-64. Petitioner asserted that his wife was in ill health and that she would have difficulty finding work if she moved to Mexico. Id. at 564. Under these circumstances, the court found that there was no extreme hardship, stating that “Arce-Hernandez describes the typical case of hardship that follows deportation of an alien whose citizen wife and children were all acquired after his illegal entry into the United States.” Id., citing INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981).
Here, the only evidence submitted to show hardship is a brief, generalized declaration from Appellant‘s wife, who states that she needs his “help in raising children and providing for them. I cannot provide everything they need without their father‘s help.” However, the record discloses that Appellant has been incarcerated for 10 of the last 13 years. Appellant also submits the declaration of an attorney who opines that there is a “reasonable possibility” that Appellant might have obtained a waiver from deportation under
The hardships alleged by Appellant represent the “common results of deportation[,]” Arce-Hernandez, 163 F.3d at 564, and do not represent the type of additional evidence of extreme hardship beyond the normal deprivation of family support. Cf. Arrieta, 224 F.3d at 1081-82. As in Arce-Hernandez, Muro-Inclan has demonstrated only those hardships that inevitably result from the deportation of a non-citizen relative who has acquired a citizen family. His family may well suffer hardships as a result of his deportation, “but we cannot say, as a matter of law, that these hardships would be extreme and beyond the common results of the deportation of a convict.” Arce-Hernandez, 163 F.3d at 564. Like Arce-Hernandez, then, Muro-Inclan “has failed to tender a plausible case that he is eligible for a waiver under 212(h).” Id.
In Arrieta, we found a plausible ground for 212(h) relief existed and therefore reversed. There, however, the defendant had thoroughly documented the many ways in which his support and presence in
In contrast to Arrieta‘s well-documented proof of hardship, here are presented only with the conclusory opinion of the immigration lawyer and the very brief, nonspecific declaration from Appellant‘s wife—the substance of which is belied by the Appellant‘s prolonged absences from his family while he was imprisoned. Unlike Arrieta, Muro-Inclan has not provided that “something more” required by Arce-Hernandez to “remove [his] case from the ‘typical’ hardship category.” Id. On this record, then, Appellant has not shown anything beyond the common results of deportation. A finding of plausibility on this showing would require finding of plausibility, and therefore prejudice, in almost every case.4
We also find that Appellant‘s Apprendi argument is without merit. See United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000).
AFFIRMED.
TASHIMA, Circuit Judge, dissenting:
I respectfully dissent from the majority‘s holding that, despite the violation of Juan Manuel Muro-Inclan‘s (“Muro“) due process rights in five underlying deportation proceedings, his conviction under
Muro arrived in the United States as an infant in 1965; grew up here with his parents, who are lawful permanent residents; married a U.S. citizen in 1984 at the age of 20; and has three children, all of whom were born in this country. His due process rights were repeatedly violated because the record from his various deportation proceedings clearly raised the inference that he was eligible for a waiver under
To show that he had a plausible ground for relief, Muro submitted the declaration of his wife, Linda Muro, who stated:
It is important that our children have a father. They love their father and need
him in their lives. I also need help in raising the children and providing for them. I can not provide everything they need without their father‘s help. It is a significant hardship on the family not to have Juan in the country to help with the children.
Linda Muro thus indicates that the children‘s love for their father and her need for his help in “raising” them—in addition to his help in “providing” for them—contribute to the significant hardship that would result from Muro‘s deportation. This evidence thus goes beyond the simple matter of the hardship posed by deportation of a family‘s primary bread-winner. See Gutierrez-Centeno v. INS, 99 F.3d 1529, 1533 (9th Cir.1996) (family separation is a factor “which warrants considerable, if not predominant, weight“); Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983) (“We have held that ‘[t]he most important single [hardship] factor may be the separation of the alien from family living in the United States.’ ” (citation omitted and alterations in original)).
Thus, the majority‘s reliance on United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir.1998), in concluding that this evidence is insufficient to show plausibility is misplaced. ”Arce-Hernandez simply stands for the proposition that economic hardship caused by deportation of the family‘s primary bread winner, combined with relocating, do not, standing alone, constitute the extreme hardship necessary to justify relief.” Arrieta, 224 F.3d at 1082.1
Muro also submitted the declaration of Matthew Millen, an immigration law expert with 24 years’ experience in the field. After reviewing Muro‘s immigration file, hearing transcripts, attorney notes, criminal history, and wife‘s declaration, Millen gave his expert opinion that there is a “reasonable possibility” that Muro would have been granted a § 212(h) waiver. The sufficiency of this showing of prejudice is directly supported by our case law. See Arrieta, 224 F.3d at 1083 (stating that a showing of prejudice is made by “testimony from an expert witness, ... that there was ‘a reasonable possibility’ that a petitioner would have been granted a waiver if one had been sought).
In concluding that this showing is insufficient, the majority misreads Arrieta. It asserts that “[u]nlike Arrieta, Muro-Inclan has not provided that ‘something more’ required by Arce-Hernandez to ‘remove [his] case from the “typical” hardship category.‘” Maj. op. at 1186. But Arrieta expressly holds that credible expert testimony, such as that given here, “provides additional support for the proposition that it would be ‘plausible’ that Mr. Arrieta would have received a § 212(h) waiver. Because it is plausible that Mr. Arrieta would have received a waiver, we hold that he was prejudiced by the government‘s due process violation.” Arrieta, 224 F.3d at 1083. And such a showing of “plausibility” or a “reasonable possibility” that such a showing of extreme hardship can be made is all that is required. See id.; United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996).
Because I conclude that Muro has made a plausible showing of available relief under § 212(h), as required by our case law, I would reverse his conviction.