United States v. Saucedo ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 99-10047
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENERAO SAUCEDO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:98-CR-185-ALL-P)
December 1, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Generao Saucedo (“Saucedo”) appeals the district court’s denial of his
motion to dismiss the indictment for illegal reentry after deportation in violation of 8 U.S.C. § 1326.
In light of our recent decision in United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999),
we affirm the judgment of the district court.
In 1995, Saucedo was convicted of theft exceeding $20,000. Because this constituted an
aggravated felony as defined by 8 U.S.C. § 1101(a)(43) and Saucedo was in the United States
illegally, the INS initiated expedited removal proceedings against him under 8 U.S.C. § 1228. Special
Agent Jeanna Shipley of the Immigration and Nat uralization Service (INS) prepared and served
Saucedo with a Notice of Intent to Issue a Final Administrative Deportation Order (“Notice of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Intent”) alleging that: (1) Saucedo was in the United States illegally; (2) he had been convicted of an
aggravated felony; and (3) he was ineligible for statutory relief from deportation. Saucedo signed a
form acknowledging receipt of the Notice of Intent, and his acknowledgment was witnessed by a
second INS agent. Saucedo then signed the following waiver provision:
I DO NOT WISH TO CONTEST:
I admit the allegations and charges of this Notice of Intent. I admit that I am
deportable and do not seek any form of relief from removal. I waive my right to rebut
and contest the above charges and my right to file a petition for review of a Final
Deportation Order . . . I wish to be deported . . ..
Several months later, the INS Deputy Director executed Saucedo’s Final Administrative
Removal Order.1 Shortly after being served with the Removal Order by another INS official, Saucedo
was deported.
In May of 1998, Saucedo was arrested in Texas and charged with illegal reentry after
deport ation pursuant to 8 U.S.C. § 1326(a) and (b)(2). Saucedo filed a motion to dismiss the
indictment, asserting that his prior deportation violated due process. The district court denied his
motion. Saucedo then pleaded guilty, reserving his right to appeal the court’s denial.
In his present appeal, Saucedo alleges that his underlying deportation proceeding violated due
process because: (1) there was no hearing; (2) no one outside of the INS was involved in any phase
of the deportation decision; (3) no record was prepared advising Saucedo of his rights; (4) no record
was prepared assessing the voluntariness and intelligence of his waiver; (5) the INS had a fiscal
interest in Saucedo’s deportation because its budget is determined largely by the number of aliens it
apprehends and deports; (6) the ruling INS officer failed to discuss with Saucedo any facts of his case
or explain his rights to him; and (7) no record was prepared of what evidence the adjudicative officer
reviewed prior to entering the deportation order.
1
In the Removal Order, the INS Officer found that: (1) Saucedo was not a citizen or national
for the United States, nor had he been lawfully admitted for permanent resident; (2) Saucedo had
been convicted of an aggravated felony as defined by § 1101(a)(43); and (3) the administrative record
established by clear, convincing, and unequivocal evidence that Saucedo was deportable under §
1251(a)(2)(A) (now § 1227(a)(2)(A)(iii)) as an alien convicted of an aggravated felony.
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The facts and arguments raised in this case are virtually identical to those in United States v.
Benitez-Villafuerte, 186 F.3d 651. In Benitez, the appellant was convicted of an aggravated felony
under 8 U.S.C. § 1101(a)(43) and deported following expedited removal proceedings conducted
solely within the INS under 8 U.S.C. §§ 1227 (a)(2)(A)(iii) and 1228. Thereafter, Benitez reentered
the United States without permission. He was subsequently arrested and charged with illegal reentry
after deportation under § 1326. During the prosecution of his case, Benitez attempted to suppress
the evidence of his prior deportation on the grounds that the earlier deportation proceeding violated
his constitutional due process rights. See id. at 656.
In reversing the district court’s grant of Benitez’s motion to suppress, we held that the
expedited statutory deportation proceedings of § 1228 satisfied the minimum due process
requirements pronounced by the Supreme Court in Kwong Hai Chew v. Colding, 344 U.S. 590, 197-
98, 73 S. Ct. 472, 97 L. Ed. 576 (1953). See id. at 657. Since the INS had complied with the
requirements of §1228, it had afforded Benitez the opportunity to claim all the procedural due
process to which he was constitutionally entitled. See id. We additionally held that in order to
successfully collaterally attack a deportation in a § 1326 proceeding, a petitioner had to show that
any alleged procedural deficiencies caused him “actual prejudice.” See id. at 658.
As in Benitez, Saucedo’s deportation proceeding afforded him the due process to which he
was entitled. Agent Shipley gave Saucedo notice of the charges against him. The waiver provision
informed Saucedo that he was waiving his right to contest the charges against him. Saucedo also
waived a 30-day stay of his deportation and an opportunity to seek judicial review of any final
administrative deportation order. The Removal Order was issued by an INS Deputy Director and
served on Saucedo by a third officer.
Saucedo has also failed to make a showing of actual prejudice. See Benitez, 186 F.3d at 658-
59 (“A showing of prejudice means ‘there was a reasonable likelihood that but for the errors
complained of the defendant would not have been deported.’”). Here, Saucedo was convicted of an
aggravated felony under § 1101(a)(43). Consequently, he was “conclusively presumed to be
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deportable from the United States” under § 1228(c). Since Saucedo’s deportation was a “foregone
conclusion,” he can not establish actual prejudice. See id. at 659.
Our opinion in Benitez-Villafuerte also addressed and rejected Saucedo’s additional due
process arguments that (1) the commingling of prosecutorial and adjudicative functions rendered the
proceeding so fundamentally unfair that a showing of prejudice was unnecessary, see id. at 660
(finding that absent any evidence that the minds of the INS officers were “irrevocably closed” to the
possibility of a defendant avoiding deportation, it could not say that “the commingling of
prosecutorial and adjudicative functions in a § 1228 proceeding poses a risk of impermissible bias.”);
and (2) the INS has a fiscal interest in deportation that affects the impartiality of deportation
proceedings, see id. at 659 (“[T]he alleged pecuniary interest here is of the type identified by the
Supreme Court as being so remote, trifling and insignificant that it may fairly be supposed to be
incapable of affecting the judgment of influencing the conduct of an individual INS hearing officer.”)
Absent evidence o f impermissible bias on the part of the officers who conducted his deportation
proceeding, both of these arguments are without merit.2
We conclude that Saucedo’s original deportation proceeding did not violate due process.
Accordingly, the district court’s judgment is AFFIRMED.
2
As Saucedo has failed to show actual prejudice, we need not address Saucedo’s remaining
arguments, namely that no record was prepared assessing the voluntariness and intelligence of his
waiver and that no record was prepared detailing what evidence the adjudicative officer reviewed
prior to entering the deportation order. See Benitez, 186 F.3d at 661 n. 9.
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