UNITED STATES of America v. Jose Augustin TORRES, a/k/a Juan Diaz, a/k/a Victor Torres, a/k/a Anthony Rodriguez, a/k/a Joselito Torres, a/k/a Martin Rodriguez Jose Augustin Torres, Appellant.
No. 03-2574
United States Court of Appeals, Third Circuit
Sept. 7, 2004.
Submitted Under Third Circuit LAR 34.1(a) Jan. 23, 2004.
There are two factors to be borne in mind in that regard. First, only the [G]overnment can make such a motion. It cannot be compelled to do so; and... [s]econd, the court has complete discretion as to whether it will or will not grant that motion, and the court is free, in any event, to impose a sentence within the [G]uidelines as it deems appropriate.
In short, the final determination as to the sentence to be imposed rests with the Court, whether or not a motion has been made pursuant to [§] 5K1.1 of the [G]uidelines.
The clear implication of this instruction was that the District Court had the power to sentence a cooperating witness to less than life imprisonment, even without a § 5K1.1 motion from the Government.23
Our case law is clear, however, that even when a witness has, in fact, cooperated with the prosecution, a district court is not authorized to depart below a statutory mandatory minimum sentence unless the Government has moved for a downward departure pursuant to U.S.S.G. § 5K1.1. See, e.g., United States v. Harrison, 241 F.3d 289, 294 (2d Cir.2001); see also
* * * * * *
We have considered the parties’ remaining arguments and find them to be without merit.
CONCLUSION
In sum, for the foregoing reasons, we reverse the convictions under Counts I, II, III, V, VII, and VIII in toto, and the convictions under Count IV for obstruction-of-justice conspiracy. We vacate the convictions under Count IV for false-statement conspiracy and the convictions under Count VI in toto. And we remand for a new trial consistent with this opinion.
Maureen Kearney Rowley, Chief Federal Defender, David L. McColgin, Supervising Appellate Attorney, Elizabeth T. Hey,
Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney, for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney, Senior Appellate Counsel, Anita Eve, Assistant United States Attorney, Office of the United States Attorney, Philadelphia, PA, for Appellee.
Before ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE, District Judge.*
* Honorable Dickinson R. Debevoise, Senior United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
Jose Augustin Torres appeals his conviction for unlawful re-entry into the United States after having been deported. On July 18, 2002, Torres was indicted for illegal re-entry after deportation in violation of
This case presents a question concerning the scope of an alien‘s right to collaterally attack the removal order that underlies a conviction for unlawful re-entry.
I.
Torres was admitted into the United States on July 14, 1989, as a lawful permanent resident from the Dominican Republic, his native country. On August 30, 1993, Torres was convicted of a felony drug trafficking offense in the Superior Court of New Jersey, Middlesex County. Torres voluntarily returned to the Dominican Republiс but on May 23, 1998, he attempted to re-enter the United States.
Torres‘s 1993 conviction rendered him removable.1 INS officials therefore detained Torres at the point of his 1998 entry and placed him in removal proceedings. In July of 1998, a hearing was held before an Immigration Judge (IJ) at which Torres was not represented by counsel. The IJ informed Torres of his rights during and after the hearing, including his right to appeal the outcome of his removal proceedings. The IJ then found Torres removable as charged, and ordered him removed to the Dominican Republic at Torres‘s request. Torres accepted the IJ‘s decision, and did not appeal the IJ‘s determination. At no time during the hearing, however, did the IJ inform Torres that he was eligible for any form of discretionary relief from removal. Torres was removed on September 2, 1998. Despite
Before the District Court, Torres moved to dismiss the indictment contending that the order of removal upon which it was based was flawed. Torres argued that, during his 1998 removal proceedings, he was entitled to be considered for discretionary relief from removal under section 212(c) of the Immigration and Nationality Act (“INA“),
After the District Court held an initial hearing on Torres‘s motion, Torres sought to admit expert testimony on his motion. The District Court, finding the testimony to be irrelevant, denied Torres‘s request to admit expert testimony. Simultaneously, the District Court denied Torres‘s motion to dismiss the indictment.3 Torres then pled guilty to the indictment, subject to his right to appeal. The District Court imposed sentence and, soon after, issued a written opinion explaining its decision to deny Torres‘s motion to dismiss. Torres timely appealed.
We have jurisdiction under
II.
Torres‘s 1998 removal order was an element of his offense of illegal reentry. See
A.
The 1952 INA contained a provision excluding from the United States aliens convicted of the illicit traffic in narcotics. See 66 Stat. 182-187; see also St. Cyr, 533 U.S. at 294-95. The same provision, which was section 212(c) of the
Aliens lawfully admitted for permanent resident who temporarily proceeded abroad voluntarily and not under an order of [removal], and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
See 66 Stat. at 187 (codified at
In 1996, Congress eliminated the Attorney General‘s discretion under INA section 212(c) to waive removal for aliens excludable for having committed even non-aggravated controlled substance offenses. See Anti-Terrorism and Effective Death Penalty Act (AEDPA) § 440(d), Pub.L. No. 104-132, 110 Stat. 1277; Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) § 304(b), Pub.L. No. 104-208, 110 Stat. 3009-597. The five-year threshold was also thereby eliminated. The question soon arose whether the 1996 elimination of the Attorney General‘s discretion operated retroactively. That is, in the wake of AEDPA and IIRIRA, did the Attorney General retain discretion to grant 212(c) relief from removal for aliens whose non-aggravated removable offense occurred prior to the change in the law, but whose removal had not yet been effected?
The first challenge to retroactive application of this broader preclusion of 212(c) relief came from aliens who had pled guilty to aggravated felonies prior to the enactment of AEDPA and IIRIRA but who served less than five years imprisonment. This group of aliens would have maintained the possibility of 212(c) relief if they faced removal before the effective dates of AEDPA and IIRIRA. Seeking to retain their opportunity for 212(c) relief after the new laws became effective, these aliens argued, in part, that they had entered pleas of guilty to the aggravated felonies in an effort to keep the sentence imposed below the five-year prison term threshold enumerated in
The Attorney General disagreed. See In re Soriano, 21 I. & N Dec. 516, 1996 WL 426888, Int. Dec. 3289 (BIA 1996). Eventually, sо did a number of the Courts of Appeals. See, e.g., DeSousa v. Reno, 190 F.3d 175, 186-87 (3d Cir. 1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306-08 (5th Cir. 1999). From 1996-2001, Soriano and the Courts of Appeals decisions that followed it took the position that the elimination of 212(c) relief enacted by AEDPA and IIRIRA acted retroactively; that is, 212(c) relief was not available to any criminal alien whose removal would be effected after the effective dates of AEDPA and IIRIRA.
In 2001, the Supreme Court resolved the question through an appeal
B.
Because of the timing of Torres‘s narcotics convictions and subsequent removal, he was wrongly precluded from seeking 212(c) relief because of the then-prevailing view that AEDPA and IIRIRA applied retroactively. In 1993, Torres pled guilty to committing a drug offense and was sentenced to less than five years’ imprisonment. Under the law at that time, Torres was removable, see
But Torres‘s removal proceedings did not begin until 1998—after the effective dates of AEDPA and IIRIRA. At that time, the view binding on the IJ adjudicating Torres‘s removal proceeding was that aliens like Torres were subject to the post-AEDPA/IIRIRA rules, and therefore were not eligible for 212(c) relief. Presumably for this reason, the IJ did not inform Torres that 212(c) relief from removal might be available to him.
Torres argues that the IJ‘s failure to consider the availability of 212(c) relief was a fundamental error because St. Cyr later established that, at the time he was ordered removed, Torres was actually eligible to be considered for 212(c) relief. Importantly, Torres also asserts that the IJ‘s error of law denied him an opportunity for judicial review of his removal order. According to Torres, his opportunity to seek judicial review of the IJ‘s decision was effectively precluded by the IJ‘s failure to disclose that Torres would have been eligible for consideration for discretionary relief but for the reigning interpretation of AEDPA and IIRIRA. Torres reasons that, acting pro se, he would have no reason to know that, but for Soriano, he was eligible for discretionary relief. Had the IJ so informed him, he might have sought judicial review—in the BIA or in the federal courts—in an effort to change the law. Torrеs therefore argues that he should be permitted, in this criminal action for illegal re-entry, to challenge the IJ‘s conduct during his removal proceeding.
III.
May Torres collaterally attack the 1998 removal order that satisfies an element of his conviction for illegal reentry?
Just over a month later, both aliens were again separately arrested in Nebraska. Id. Both were then indicted for criminally violating
The Supreme Court, at the Government‘s request, assumed that the deportation proceeding was fundamentally unfair, focusing instead on the threshold question of whether an alien indicted for criminally violating
But, the Court concluded, due process requires that a “collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted” when the underlying proceeding is “fundamentally unfair” and when “the deportation proceeding effectively eliminates the right of the alien to obtain judicial review.” Id. at 839. Applying that rule to the case at hand, the Court сoncluded that the IJ‘s conduct—not adequately explaining suspension of deportation and accepting a waiver of the aliens’ appeal right despite that inadequate explanation—effectively denied the aliens their right to judicial review. Id. at 840. Coupled with the Government‘s concession that the proceedings were fundamentally unfair, the Court concluded that the aliens’ collateral challenge must be sustained. Id. at 842.
Congress later codified the Court‘s holding in Mendoza-Lopez at
(d) Limitation on collateral attack on underlying [removal] order In a criminal proceeding under this section, an alien may not challenge the validity of the [removal] order de-
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the [removal] proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
In 1998, Torres did not pursue his right to appeal the removal order underlying his current criminal conviction. The Government does not argue that he failed to exhaust his administrative remedies, as required by
A.
Torres‘s contention that he was denied meaningful judicial review is threefold. First, he contends that all avenues of judicial review—other than administrative review—were legally foreclosed to him, presumably by the operation of either
With respect to Torres‘s first contention, the Government does not contest that one of
Those statutory provisions say:
(B) Denials of discretionary relief Notwithstanding any other provision of law, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.
(C) Orders against criminal aliens Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which
both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.
Id. In short, the two provisions act in concert to preclude direct judicial review of most discretionary immigration determinations of the Attorney General, and all immigration determinations with respect to aliens removable for having committed certain criminal offenses, including controlled substance offenses. See Bakhtriger v. Elwood, 360 F.3d 414, 419 (3d Cir. 2004).
The Government аrgues, nevertheless, that Torres had—and waived—an absolute right to appeal his removal order to the BIA. Torres, for his part, argues that such an appeal would have been futile in light of Soriano, 21 I. & N. Dec. at 518.
This difference of opinion is beside the point. Even if BIA review had been available, Mendoza-Lopez clearly contemplates that “judicial review” include review beyond the administrative context. 481 U.S. at 837-39. Mendoza-Lopez unambiguously differentiated between an alien‘s administrative removal proceeding on the one hand, and judicial review on the other, stating:
Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.... This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.... 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.
Id. (internal footnotes and citations omitted, additional italics added). Torres‘s right to appeal to the BIA is, therefore, insufficient to establish that he was afforded meaningful judicial review.
The Government contends alternatively that the availability to Torres of habeas corpus afforded him the opportunity for judicial review required by
The District Court adopted an eminently sensible reading of the statute. See Roque-Espinoza, 338 F.3d at 729; Gonzalez-Roque, 301 F.3d at 49-50. As a practical matter, the availability of habeas relief would have adequately accommodated Torres‘s interest in having his challenges—at least those made on statutory or constitutional grounds—reviewed by a federal court.
The difficulty with the District Court‘s apprоach, however, is linguistic. For the term “judicial review” as used in another part of the INA has now been interpreted by the Supreme Court to be limited to direct review, and to exclude habeas review. See St. Cyr, 533 U.S. at 311-12.9 In St. Cyr, the court confronted
If that is the definition of “judicial review” in
There is something to be said for reading the terms differently in these two parts of the same statute. See Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932). As a matter of reality,
Furthermore, realism compels us to acknowledge that when Congress used the term “judicial review” in enacting
In fact, the St. Cyr Court‘s interpretation of the phrase “judicial review” in
On the other hand, we acknowledge the argument in favor of construing the term “judicial review” in
At any rate, we need not conclusively resolve what suffices to constitute judicial review under
B.
Of the seven published cases factually similar to this one decided by the Courts of Appeals in the wake of St. Cyr, most have been decided on the ground that the alien failed to establish that the underlying removal proceeding was fundamentally unfair.11 Compare Aguirre-Tello, 353 F.3d at 1207-10, and Wilson, 316 F.3d at 509-11, and Mendoza-Mata, 322 F.3d at 832, and Lopez-Ortiz, 313 F.3d at 231, and United States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir. 2003) (remanding for findings on whether alien had established prejudice and, therefore, fundamental unfairness), with Ubaldo-Figueroa, 364 F.3d at 1051 (dismissing indictment and holding that alien had successfully challenged underlying removal order),12 and Roque-Espinoza, 338 F.3d at 728 (upholding conviction because alien was afforded meaningful judicial review).
This Court has not yet had occasion to construe the term “fundamental[] unfair[ness]” as it is used in
In measuring whether an alien‘s removal proceeding was “fundamentally unfair,” most circuits ask whether the alien was denied due process. See Ubaldo-Figueroa, 364 F.3d at 1047-48; Aguirre-Tello, 353 F.3d at 1204; Wilson, 316 F.3d at 510; Lopez-Ortiz, 313 F.3d at 230-31; Fernandez-Antonia, 278 F.3d at 159. We agree that “[f]undamental fairness is a question of procedure.”13 Lopez-Ortiz, 313 F.3d at 230.
As the Supreme Court and this court have repeatedly observed, removal proceedings are civil in nature. See Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952); Perez v. Elwood, 294 F.3d 552, 557 (3d Cir. 2002). Aliens in removal proceedings are entitled to due process, though the procedural protections accorded to them in that context measure less than the panoply avаilable to a criminal defendant. See Dia v. Ashcroft, 353 F.3d 228, 238-39 (3d Cir. 2003) (en banc); Lopez-Ortiz, 313 F.3d at 230. “The fundamental requirement of due process is the opportunity to be heard at a
Rather, Torres contends that his removal proceeding was rendered fundamentally unfair by the IJ‘s erroneous conclusion—in accordance with the then-reigning interpretation of the law—that Torres was not eligible for discretionary relief. Torres essentially argues that the IJ‘s error of law rose to the level of a due process violation. We disagree.
Without more, an error of law will ordinarily not rise to the level of a due process violation.14 In the context of federal habeas corpus review of state criminal proceedings, for example, the Supreme Court and this Court have repeatedly held that “mere error[s] of state law [do not amount to] a denial of due process.” Engle v. Isaac, 456 U.S. 107, 121 n. 21 (1982) (internal quotations omitted); Smith v. Zimmerman, 768 F.2d 69, 73-74 (3d Cir. 1985). Similarly, while we have reversed verdicts due to legal error that occurred at a civil trial, it is not generally part of our conclusion that the error rose to the level of a violation of due process. See, e.g., Ambrose v. Township of Robinson, Pa., 303 F.3d 488 (2002) (failure
to grant judgment as a matter of law); Becker v. ARCO Chem. Co., 207 F.3d 176 (3d Cir. 2000) (improper admission of evidence); Bohler-Uddeholm Am., Inc. v. Ellwood Group., Inc., 247 F.3d 79, 100-02 (3d Cir. 2001) (jury instruction).
In fairness to Torres, he challenges not just the IJ‘s legal conclusion, but also the consequences that flowed from it. By definition, when the IJ concluded that Torres was not eligible for 212(c) relief, he did not consider Torres for that relief. Torres alleges fundamental unfairness because he maintains that he had a due process liberty interest in being considered for 212(c) relief. We disagree.
At least three circuits have held that, because discretionary relief is necessarily a matter of grace rather than of right, aliens do not have a due process liberty interest in consideration for such relief. See Lopez-Ortiz, 313 F.3d at 231; Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir. 2002); Smith v. Ashcroft, 295 F.3d 425, 429-30 (4th Cir. 2002). The possibility that the IJ would have granted 212(c) relief in Torres‘s case was speculative at best.
To be sure, a meaningful distinction may exist between the claim that an alien has a due process interest in being considered for available discretionary relief on the one hand, and the very different claim that an alien has a due process interest in the favorable exercise of that relief.15 Thus, Torres can argue that, although he had no right to the favorable exercise of 212(c) relief, he retained a due process interest in being considered for that relief. The contention has some superficial support: A prisoner may have no right to the favorable exercise of parole while at the same time in some circumstances he may have a due process interest in consideration for parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Roque-Espinoza, 338 F.3d at 729-30. On closer inspection, however, the parole cases actually refute any contention that Torres had a protectible interest in being considered for discretionary relief.
In Greenholtz, the Supreme Court squarely held that there is no constitutional right to parole. 442 U.S. at 7. The Court specifically held that the possibility of early release “provide[d] no more than a mere hope that the benefit will be obtained ..., a hope which is not
protected by due process.” Id. at 11 (internal citations omitted). Where, however, a state creates a parole system that statutorily mаndates release unless specified conditions are met, a prisoner eligible for parole consideration may be entitled to certain due process protections. See id. at 12; Frey v. Fulcomer, 132 F.3d 916, 925 n. 7 (3d Cir. 1997); Walker v. Prisoner Review Bd., 769 F.2d 396, 400 (7th Cir. 1985). As we stated in Frey, therefore,
the Greenholtz line of decisions stands for the proposition that state-created liberty interests will be found when the state (1) establishes substantive predicates to guide official decision making, and (2) uses explicit mandatory language in its regulations directing the decisionmaker to reach a particular outcome if the substantive predicates are present.
Section 212(c) uses no “explicit mandatory language” that could create in an alien any protectible expectation of entitlement to relief. Instead, relief under section 212(c) falls squarеly within what the Court in Greenholtz described as a “mere hope” category of relief.16 Unlike the parole statute at issue in Greenholtz, section 212(c) sets forth no presumption in favor of relief. It speaks merely to the Attorney General‘s “discretion.” As the Fifth Cir-
Finally, although the IJ erroneously concluded that Torres was ineligible to be considered for 212(c) discretionary relief, the IJ did inform Torres of the reasons for the Government‘s charge that Torres was removable, did provide him an opportunity to present a defense, did secure the waiver of Torres‘s defense and appeal rights, and did grant Torres‘s request to be deported to his native country. The IJ‘s conduct in totality did not deny Torres due process.
Because Torres cannot establish that his removal proceeding was fundamentally unfair within the meaning of
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
CHERTOFF
CIRCUIT JUDGE