UNITED STATES of America, Plaintiff-Appellee, v. Ricardo AHUMADA-AGUILAR, aka Ricardo Ahumada; aka Ricardo Aguilar; aka Ricardo Alfonso Hernandez, Defendant-Appellant.
No. 96-30065
United States Court of Appeals, Ninth Circuit
Filed July 1, 2002
298 F.3d 943
Nonetheless, I disagree with the majority‘s decision to reinstate Dazo‘s claims against America West and Continental. Dazo has made no attempt to distinguish among the three airlines she has sued. Indeed, she waited until her petitions for rehearing to even identify which airline provided her carriage to Toronto. In these circumstances, Dazo has waived any claim against America West and Continental. See, e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994) (“We review only issues which are argued specifically and distinctly in a party‘s opening brief.“).
I appreciate the fact that the tragic events of September 11, 2001 have cast this case in a different light from when it was first taken under submission. To some, the experience of September 11 undoubtedly makes it far less palatable to shroud airport security companies within the liability caps of the Warsaw Convention. Globe‘s parent, after all, screened passengers for American Airlines Flight 11, which was used to destroy the north tower of the World Trade Center. See, e.g., Milo Geyelin, Judge Wants Victims of Sept. 11 Who Sue to Know Risks of Action, Wall St. J., Apr. 12, 2002, at B2; Patricia Hurtado, Victim‘s Kin Sues Airline, Newsday (New York), Apr. 9, 2002, at A3. But this nation‘s recent tragedy simply does not bear on the legal question presented in this case, and does not justify a panel majority reversing course. Our judicial charge is to stand above the inflamed passions of the public, however much we may share them; we must apply the law faithfully and evenhandedly. See LaVine v. Blaine Sch. Dist., 279 F.3d 719, 728 (9th Cir.2002) (Kleinfeld, J., dissenting from denial of rehearing en banc) (“[The] ... law ought to be based on neutral principles, and should not easily sway in the winds of popular concerns, for that would make our liberty a weak reed that swayed in the winds.“).
I respectfully dissent.
Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge O‘SCANNLAIN.
Before: SCHROEDER, Chief Judge, ALARCÓN, and KLEINFELD, Circuit Judges.
Opinion by Judge ALARCÓN; Dissent by Judge KLEINFELD.
ALARCÓN, Circuit Judge.
I
Ricardo Ahumada-Aguilar appeals from his conviction pursuant to
Ahumada-Aguilar was indicted on June 7, 1995. On August 24, 1995, he filed separate motions to dismiss the indictment. In one motion, he requested dismissal on the basis that he is not subject to prosecution for a violation of § 1326(a) and (b)(1) because he is not an alien. Ahumada-Aguilar alleged that at the time of his birth in Mexico to a Mexican citizen mother, his father was a United States citizen. He argued that he met all of the valid constitutional requirements for citizenship set forth in
In the second motion, Ahumada-Aguilar argued that the indictment should be dismissed because he was deprived of his right to due process at his November 18, 1991 deportation proceedings. He asserted the following procedural errors: (1) he was not notified he had a right to contact and communicate with the Mexican Embassy; (2) he was not notified of the exact nature of the deportation charges against him until the day of the order to show cause hearing; (3) he was not adequately informed of his right to counsel and the availability of legal services; (4) he did not competently waive that right; (5) he was not adequately informed of the opportunity to seek appellate review of the deportation order; (6) nor did he knowingly and intelligently waive that right.
The district court denied both motions. After a bench trial on stipulated facts, the district court found Ahumada-Aguilar
In response to Ahumada-Aguilar‘s appeal from the judgment of conviction, a panel of this court consisting of Judges Alarcón, Norris, and Kleinfeld affirmed the district court‘s judgment of conviction in an unpublished disposition. Judge Norris dissented. He concluded that Ahumada-Aguilar was denied due process at his deportation proceedings because the immigration judge (“IJ“) did not obtain a knowing, voluntary, and intelligent waiver of his right to counsel, and did not elicit a valid waiver of his right to appeal.
Consideration of Ahumada-Aguilar‘s petition for rehearing with suggestion for rehearing en banc was withdrawn pending simultaneous briefing regarding the impact on his equal protection contention of the Supreme Court‘s decision in Miller v. Albright, 523 U.S. 420 (1998), wherein the petitioner raised a similar constitutional attack on
On June 18, 2001, the Supreme Court vacated our judgment and remanded this matter for further consideration in light of Nguyen v. INS, 533 U.S. 53 (2001). The petitioner in Nguyen, like Ahumada-Aguilar, was born out of wedlock to a foreign citizen mother and a United States citizen father. Id. at 57. Nguyen argued that
II
Because the Supreme Court has instructed us that
Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense.
In United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992), we held that “[a] defendant who seeks to exclude evidence of a deportation order in a prosecution under
A.
Congress expressly provided that an alien has the right to representation by counsel at no expense to the Government in
In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings as he shall choose.
The Attorney General promulgated
The Immigration Judge shall advise the respondent of his right to representation, at no expense to the Government, by counsel of his own choice authorized to practice in the proceedings and require him to state then and there whether he desires representation; [and] advise the respondent of the availability of free legal services programs ... in the district where the deportation hearing is being held[.]
Before the district court, the prosecutor in Ahumada-Aguilar‘s criminal reentry proceedings argued that “under present Ninth Circuit case law, there was a procedural defect in the deportation hearing resulting from the failure of the IJ to individually address the defendant regarding the right to counsel.” The district court agreed. The district court stated: “No individual colloquy took place. Clearly there has been—was a violation of the regulation and procedure.” Notwithstanding this finding, the district court ruled that Ahumada-Aguilar “implicitly waived his rights even though he remained silent and didn‘t expressly say he did or did not want an attorney.” The record of the deportation proceedings does not support this finding. Furthermore, acceptance of an implicit waiver of the right to counsel is unequivocally inconsistent with the duty of an IJ to “require the respondent to state then and there whether he requires representation.”
The IJ conducted a group deportation proceeding on November 18, 1991, including Ahumada-Aguilar and at least three other respondents. The portion of the transcript that sets forth the IJ‘s advice regarding the right to counsel reads as follows.
JJ: Now gentlemen you have the right to be represented by an attorney in these proceedings.1
UNK: [Spanish],
CA: I don‘t remember if I have it.
JJ: All right now you‘ve got it.
* * Group speaking * *
CA: Thank you.
JJ: Now gentlemen you have the right to be represented by an attorney in these proceedings.
CA: Spanish.
JJ: If you tell me you need more time in which to get a lawyer I will give you more time.
CA: Spanish.
JJ: If you tell me you want to proceed right now and speak for yourselves you can do that.
CA: Spanish.
JJ: Those of you who want to proceed right now and speak for yourselves please stand up.
CA: Spanish.
UNK: Spanish.
CA: What do you mean, speak?
JJ: (Sigh) That you‘re ready to proceed, ready to go forward with your case right now.
CA: Spanish.
* * Several speaking in Spanish * *
CA: No, but like, I ...
JJ: Gentlemen, listen to what I am saying.
CA: Spanish.
JJ: Now, I have told you that if you want more time to get a lawyer I will give you more time.
CA: Spanish.
JJ: But if you want to proceed right now and speak for yourselves, proceed with your case right now, I want you to stand up and raise your right hand.
CA: Spanish.
JJ: What do you want to do?
CA: Spanish.
UNK: Spanish.
CA: Me?
JJ: Yes.
CA: Si.
UNK: Spanish.
CA: Well this is the first time I‘m being deported.
UNK: Spanish.
UNK: Spanish.
UNK: Spanish.
CA: No. I don‘t want a lawyer.
JJ: Ah, then stand and raise your right hand.
CA: Spanish.
JJ: Do you solemnly promise to tell the truth in the testimony you give before this court this morning?
CA: Spanish.
* * Several in Spanish: Si. * *
CA: Yes by all four.
JJ: Thank you. Please be seated.
This transcript reflects that an unidentified respondent stated: “No, I don‘t want a lawyer.” The record is silent regarding whether Ahumada-Aguilar and the other respondents who remained silent knowingly and voluntarily waived their right to counsel. Instead of inquiring of each respondent whether to state that he wished to be represented by counsel, the IJ told the group that if they wished “to proceed right now and speak for yourselves please stand up.” When one of the respondents asked what the IJ meant by “speak,” the IJ responded that it meant that the re-
We have no way of determining from the transcript of the deportation proceedings which of the respondents stood up and raised their right hands. The record shows that when the IJ administered the oath, the interpreter advised the court that each of the aliens had stated that he would testify truthfully.
We can infer three possible reasons from this murky record why one or more of the aliens stood up and raised his right hand: (1) He wanted the deportation hearing to proceed without any further delay; (2) He wanted to waive his right to counsel; or (3) He stood up and raised his right hand as requested so that the court could administer the oath. None of these possibilities demonstrates that the IJ complied with the requirement of
We have previously held that problems can result from the practice of conducting group deportation proceedings in determining whether an IJ elicited a waiver of the right to appeal. In United States v. Lopez-Vasquez, 1 F.3d 751 (9th Cir.1993), we held that “mass silent waiver impermissibly ‘presume[s] acquiescence’ in the loss of the right to appeal and fails to overcome the ‘presumption against waiver.‘” Id. at 755. In Lopez-Vasquez, as here, the IJ did not ask each member of the group whether he wished to waive his rights. Id. at 752. Instead, the IJ asked anyone who wanted to appeal to stand up so that he could discuss it with them further. Id. at 753. We held in Lopez-Vasquez that this “mass silent waiver” procedure failed to elicit a “considered and intelligent” waiver of the right to appeal and thus violated the due process rights of the petitioner. Id. at 754-55. We explained that “[m]ass silent waiver creates a risk that individual detainees will feel coerced by the silence of their fellows” and that asking individuals who wish to appeal to stand for further questioning “tended to stigmatize detainees who wished to appeal and to convey a message that appeal was disfavored and contingent upon further discussion with the immigration judge.” Id. at 754.
More recently, in United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir.1998), we found a due process violation in the IJ‘s failure to elicit a valid waiver of the right to appeal in a group deportation hearing. The proceedings in Zarate-Martinez are almost identical to those used to secure Ahumada-Aguilar‘s waiver of his right to counsel. In Zarate-Martinez, the IJ explained the right of appeal to a group of twenty-two detainees. Id. at 1197. The IJ then asked: “You all understand that you will have the right to appeal.” Id. The interpreter responded: “Everyone answers yes.” Id. Then the IJ stated, “If any of you wants to fight its (sic) case to try to stay in the United States, please raise your hand.” Id. at 1198. Unlike Ahumada-Aguilar‘s hearing, the IJ later addressed Zarate-Martinez directly, asking “Do you understand your rights?” Id. The petitioner responded “Yes” and when asked if there was anything else he would like to say, he replied “No.” Id. We held in Zarate-Martinez that this response did not constitute a voluntary and intelligent waiver of the right to appeal. Id.
We cannot discern a principled reason to hold that group silence does not demonstrate a knowing and intelligent waiver of the right to appeal, but is sufficient to
B.
Ahumada-Aguilar also argues that the deportation hearing was procedurally flawed because the waiver of his right to appeal was unknowing and involuntary. During the deportation hearing Ahumada-Aguilar repeatedly stated his desire for a “second chance” and expressed confusion over the consequences of a deportation. Ahumada-Aguilar asked the IJ whether he could return to the United States and regain his lawful permanent residence if he were deported. The IJ replied: “Well, I don‘t want to speak for the future, you can ask special permission to come back into the United States but I can‘t tell you if you will or will not get it, that‘ll be something you‘ll have to deal with later.” (emphasis added).
The IJ‘s advice to Ahumada-Aguilar that he could ask special permission to return to the United States was erroneous. Aliens who have been convicted of a violation of the law relating to a controlled substance are ineligible to receive a visa to enter the United States.
III
We must now consider whether these due process deprivations were prejudicial. Procedural flaws alone do not invalidate a deportation hearing. Proa-Tovar, 975 F.2d at 595. It remains unsettled in this circuit whether a showing of prejudice must be made where the right to counsel has effectively been denied a respondent in a deportation hearing. See Baires v. INS, 856 F.2d 89, 91 n. 3 (9th Cir.1988); Colindres-Aguilar v. INS, 819 F.2d 259, 262 (9th Cir.1987) (citing Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir.1985)). Once again, we leave that issue for another day because it is clear from the record that the denial of counsel was prejudicial to Ahumada-Aguilar. Despite conceding that the IJ violated
“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’ A lawyer is often the only
At the time of Ahumada-Aguilar‘s deportation proceedings, an alien was eligible for a discretionary waiver of deportation after legally residing in the country for seven consecutive years.
Lastly, a competent attorney would have advised Ahumada-Aguilar that if he was deported as a felon, he could not be granted special permission to return to the United States to be reunited with his family, contrary to the statement made by the IJ. Advice from a competent attorney would have prevented Ahumada-Aguilar from making an unknowing and involuntary waiver of his right to appeal based on misinformation.
CONCLUSION
The IJ‘s failure to address Ahumada-Aguilar individually in order to obtain an express statement that he wished to waive his right to counsel knowingly and intelligently, and the IJ‘s erroneous statement of law regarding Ahumada-Aguilar‘s waiver of his right to appeal violated his right of due process. With the assistance of counsel, Ahumada-Aguilar would have had the opportunity to present evidence that he was entitled to relief from deportation after he had exhausted an appeal from the deportation order. Thus, he was prejudiced by these due process violations. We hold that the 1991 deportation order may not be used to support his conviction for illegal reentry. The judgment of conviction is REVERSED.
KLEINFELD, Circuit Judge, dissenting:
This is a criminal case for reentry after deportation, not direct review of the deportation.1 Ahumada-Aguilar has won this case before on the theory that maybe he wasn‘t an alien at all.2 The Supreme Court vacated.3 Now he wins again. And again, his victory isn‘t based on any question about whether he reentered following deportation, but on the theory that his deportation proceeding was defective. And again,4 we err. The collateral issue on which Ahumada-Aguilar gains relief under today‘s majority opinion is that his waiver of counsel was defective under our previous decisions. But today‘s decision doesn‘t follow our precedents; rather, it expands and extends them far beyond their already extended reach.
1. Procedural Defect
The issue here is whether Ahumada-Aguilar, in his deportation hearing, waived his right to counsel. Deportation isn‘t criminal, so we are not talking about the Sixth Amendment right to counsel. Rather, the right to counsel at issue is the one codified in the applicable statute and INS regulations.5 Under the regulation, the Immigration Judge had to “require him to state then and there whether he desires representation.”6 The IJ did just that. He carefully explained the right to representation, saw to it that the four people before him knew that they had a right to free lawyers, and gave them a list of the names of such lawyers. Ahumada-Aguilar was given a form in Spanish and English explaining his right, and advised that he could be helped to obtain a free lawyer if he couldn‘t afford to hire one.
The deportation hearing was conducted in English and Spanish. Ahumada-Aguilar had lived in the United States most of his life and was fluent in both languages. Most of the difficulty in reading the hearing transcript is not because it was inherently confusing to the participants, but because it is hard to read a transcript where the proceedings are translated, and initials are used to refer to the interpreter when the interpreter states in English what was just said in Spanish.
The majority says the IJ‘s procedure was so defective as to constitute a denial of the constitutional right to due process, under United States v. Lopez-Vasquez, 1 F.3d 751 (9th Cir.1993),7 United States v. Ortiz-Rivera, 1 F.3d 763 (9th Cir.1993),8 and United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir.1998).9 But those cases are distinguishable. In all three, the alien had to stand up to assert the right. In Lopez-Vasquez, we held that “mass waiver by silence made it impossible to determine whether [the alien] made a voluntary and intelligent decision,” because “individual detainees will feel coerced by the silence of their fellows” and directing that someone who wants to assert a right “must stand up ... tended to stigmatize.”10 In Ortiz-Rivera, we held that making an alien stand up if he wanted to preserve his right to appeal was inadequate under Lopez-Vasquez.11 Likewise in Zarate-Martinez we held, following Lopez-Vasquez, that making an alien raise his hand to assert his right was “indistinguishable from the silent waiver we condemned in Lopez-Vasquez.”12
But in this case, Ahumada-Aguilar didn‘t have to stand up or raise his hand to assert or retain a right. There wasn‘t any “silent waiver” in the sense that we condemned it in those cases. In all three of those cases, if an alien, through social pressure, shyness, or inattention, sat and did nothing, his right disappeared. But in the case at bar, if Ahumada-Aguilar sat and did nothing, his right was retained. In order to waive his right, Ahumada-Aguilar had to do what we said was too
Moreover, it isn‘t the silence, as such, that makes the waiver bad in Lopez-Vasquez: it‘s the ambiguity. It‘s hard to tell if someone sitting and doing nothing really means to do something, namely to waive a right. In this case, Ahumada-Aguilar‘s act of standing and raising his hand made his active choice clear. In deliberative bodies, standing up is used as a means of avoiding possible ambiguity that may arise from oral expression. Robert‘s Rules says that if any member of a deliberative body doubts a vote, a “division” is called for, and the chairman should first ask those in favor of the motion to rise, and then those opposed to rise, in order to be accurately counted.13 The physical movement is used as an especially plain and express statement.
2. Prejudice
The majority‘s prejudice analysis is also mistaken. The majority says that a competent lawyer would have asserted that Ahumada-Aguilar was a citizen. I don‘t think that contention at any time had merit, and I dissented when a majority of this panel previously said it did.14 The Supreme Court vacated that previous majority decision.15 As a matter of law, there cannot be cognizable prejudice arising out of failure to assert a legally erroneous position.16
The majority says that a competent lawyer would have pressed an appeal merely for purposes of delay, so that Ahumada-Aguilar could stretch his residency to five years. That is a troubling notion of competence. An ethical lawyer does not file papers in order to cause unnecessary delay.17
The majority‘s last point on prejudice is that a lawyer would have warned Ahumada-Aguilar against waiving his right to fight deportation, because he wouldn‘t be able to get back in. That assumes too much. First, because his previous convictions for possession of cocaine and residential burglary would have weighed heavily against a discretionary waiver of deportation under
Because the IJ in this case did not violate Ahumada-Aguilar‘s right to due process and because, even if he had, there was no prejudice, I dissent.
ANDREW J. KLEINFELD
UNITED STATES CIRCUIT JUDGE