UNITED STATES OF AMERICA,
No. 01-3947
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 6, 2003—DECIDED JULY 30, 2003
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 845—Rebecca R. Pallmeyer, Judge.
Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. After spending all but the first eight months of his life in the United States, Miseal Roque-Espinoza was removed from the United States and sent back to his native Mexico in July 1998, after serving time in prison for marijuana distribution and attempted murder. Roque-Espinoza illegally re-entered the United States some time in 1999 and was arrested for drunk driving in October 2000. His arrest alerted the immigration authorities to his return, and it was not long thereafter that he was charged with violating
I
Roque-Espinoza was released from the Illinois Department of Corrections after serving three years for drug distribution and attempted murder. As we noted, Roque-Espinoza had lived in the United States since infancy. Nevertheless, he is not a United States citizen, and he suffered the normal consequence of removal (given the nature of his crimes of conviction) in 1998 after he was released from prison.
We have gleaned certain facts about the proceedings that led up to Roque-Espinoza‘s 1998 removal from the transcripts and the government‘s filings in the district court. Unfortunately, the record on appeal does not contain tape recordings or a transcript of Roque-Espinoza‘s removal hearings, and so we are unable to verify exactly what transpired there. We understand, however, that the tapes were available to the parties in the district court proceedings on this matter, and Roque-Espinoza does not now contest the government‘s characterization of those proceedings, on which we rely in what follows.
Roque-Espinoza was removed following a hearing conducted by an Immigration Judge (IJ) during which he was represented by a lawyer (whom he had obtained after the IJ granted two continuances for that purpose). After the IJ ruled at the merits hearing that Roque-Espinoza was to be removed, Roque-Espinoza‘s lawyer asked the IJ to grant his client discretionary relief from removal under § 212(c) of the Immigration and Naturalization Act,
Prior to being removed, Roque-Espinoza was warned that he could re-enter the United States only with the permission of the Attorney General. This warning obviously made little impression on him, because
Three and one half months after Roque-Espinoza entered his guilty plea, his lawyer sought permission from the court to withdraw the рlea. His reason was that the Supreme Court‘s decision in St. Cyr, which was rendered after his guilty plea, demonstrated that his earlier removal in 1998 could not as a matter of law serve as a predicate for the § 1326 conviction. St. Cyr held that the repeal of § 212(c) discretionary relief from removal contained in the Illegal Immigration Reform and Immigrаnt Responsibility Act of 1996 (IIRIRA),
II
The Federal Rules of Criminal Proсedure allow a defendant to withdraw a guilty plea for “a fair and just reason.” United States v. Bennett, 332 F.3d 1094, 1099 & n.1 (7th Cir. 2003) (citing
reason exists for the withdrawal of his guilty plea, United States v. Parker, 245 F.3d 974, 976 (7th Cir. 2001), and we review the district court‘s decision denying his motion to withdraw his guilty plea for an abuse of discretion, Bennett, 332 F.3d at 1099.
We pause at the outset to reject the “waiver” argument that the government advances in response to Roque-Espinoza‘s appeal. (The government uses the term “waiver” in its brief, but we think the more accurate characterization of the argument it presents is forfeiture.) The govеrnment asserts, in effect, that Roque-Espinoza has forfeited the argument that he presses on appeal because he failed to develop it fully before the district court. It seizes on the fact that Roque-Espinoza‘s motion to withdraw his guilty plea and memorandum of law in support of that motion did not in so many words allege a due prоcess violation at his removal hearings or that he was deprived of the opportunity to seek judicial review of the removal order. In the government‘s view, these shortcomings in Roque-Espinoza‘s filings before the district court mean that he has forfeited his right to pursue this claim on appeal.
No one would call Roque-Espinoza‘s motion to withdraw his guilty plea and the supporting memorandum models of trial advocacy, but that does not mean that they were so wanting that we should find forfeiture. At worst, the arguments he is presenting now were woefully underdeveloped. But Roque-Espinoza did indicate that he was trying to make a collateral attack on the IJ‘s 1998 removal order on the basis of a violation of his due process rights at the removal hearing. His motion to withdraw his guilty plea and the supporting memorandum of law cited the Supreme Court‘s decisions in St. Cyr and Mendoza-Lopez. The district judge was plainly able to discern from Roque-Espinoza‘s filings that he was relying on a combination of Mendoza-Lopez and St. Cyr to attack his 1998 deportation. We therefore reject the gоvernment‘s argument and move on to the merits.
In United States v. Mendoza-Lopez, the Supreme Court did not offer specific guidance about the minimal due process requirements for a deportation proceeding. It did, however, describe why the proceedings at issue there fell short of the constitutional guarantees. The Court found that the circumstances surrounding Mendoza-Lopez‘s deportation—that he was deported following a mass deportation proceeding during which he did not knowingly and intelligently waive his right to appeal, and during which he was not informed of his right to seek discretionary relief from deportation—“amounted to a complete deprivation of judicial review of the determinatiоn.” Id. at 840. Therefore, the Court reasoned, Mendoza-Lopez‘s deportation could not be used to
Reasoning from the holding in Mendoza-Lopez, this court has since held that to attack a deportation or removal collaterally in a § 1326 case, the defendant must first show that the underlying order was the result of a “deportation hearing [that] effectively foreclosed his right to direct judicial review of the deportation order,” and then establish that “the deportation hearing was fundamentally unfair.” United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994); see also United States v. Jackson, 93 F.3d 335, 338 (7th Cir. 1996) (applying Espinoza-Farlo test). Other circuits have taken a similar approach. See United States v. Benitez-Villafuerte, 186 F.3d 651, 658 & n.8 (5th Cir. 1999) (collecting cases). In 1996 Congress amended § 1326 to provide a means for collaterally attacking removals on which the government seeks to rely to establish § 1326 violations. Section 1326(d) tracks the test employed in this circuit with thе important addition of an administrative exhaustion requirement. The statute now authorizes a collateral attack on an underlying removal if the following three conditions are met: (1) the alien has exhausted the administrative remedies that offer relief from the removal order; (2) the removal order was the result of proceedings that dеprived the alien of an opportunity for judicial review; and (3) a showing of fundamental unfairness.
Several of our sister circuits have held that because § 1326(d)‘s three requirements are stated in the conjunctive, they are mandatory and thus a defendant must satisfy all three in order to prevail in her collateral attack. United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003); United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir. 2002). The Ninth Circuit might have qualified that position—but perhaps it did not—when it added that “[t]he exhaustion requirement of
It is undisputed that Roque-Espinoza did not pursue an appeal of the IJ‘s deportation order with the Board of Immigration Appeals (BIA). It is also clear that both he and his lawyer were informed of his right to pursue such an appeal and that his lawyer indicated that his client would appeal the IJ‘s decision. Roque-Espinoza‘s only response to these otherwise damaging facts is to argue that he should have been excused from administrative exhaustion on futility grounds. At the time the IJ decided Roque-Espinoza‘s case, the BIA had taken the position that the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) repealing § 212(c) discretionary relief applied rеtroactively. See
Even though Roque-Espinoza may have had good reason for thinking that he was not eligible for discretionary relief from removal, because the IJ had so informed him, he should have realized that avenues of judicial review were available to him. Apart from a direct appeal to the court of appeals from a BIA order finding him ineligiblе for § 212(c) relief, which may have been possible, he could also have filed a petition for a writ of habeas corpus under
Given this conclusion, we have no need to reach Roque-Espinoza‘s further argument that the proceedings leading up to his 1998 removal were fundamentally unfair: this is an issue he сould have tested earlier, but did not. We note, however, that it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the due process clause is designed to protect. See United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002) (“Because eligibility for § 212(c) relief is not a liberty or property interest warranting due process protection, we hold that the Immigration Judge‘s error in failing to explain Lopez-Ortiz‘s eligibility does not rise to the level of fundamental unfairness.“); United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003) (same). The Tenth Circuit, in contrast, has held that in some cases, an IJ‘s failure properly to inform an alien facing removal of her right to seek discretionary relief is fundamentаlly unfair. United States v. Aguirre-Tello, 324 F.3d 1181, 1191 (10th Cir. 2003); see also Wilson, 316 F.3d at 515-16 (Motz, J., concurring) (disagreeing that discretionary nature of § 212(c) relief means that removal proceeding in which eligible alien is not informed of her right to pursue such relief is not fundamentally unfair).
There may be an important distinction between an alien‘s claim that she has a right to seek discretionary relief, and the very different claim that she hаs a right to have that discretion exercised in a particular way. Depending on the nature of the underlying interest implicated, denial of the first might violate basic principles of due process, even though it is clear that no claim can be stated with regard to the latter. For example, it is well established that there is no constitutional right tо parole. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Yet when a state creates a parole system with mandatory pro-visions, an expectation of parole that is entitled to some due process protections may be established. Id. at 12; Walker v. Prisoner Review Bd., 769 F.2d 396, 400 (7th Cir. 1985). We need not decide here how far this line of analysis can be taken in the context of the relief afforded by § 212(c), because Roque-Espinoza‘s failure to exhaust the remedies available to him dooms his case no matter what.
III
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—7-30-03