United States v. Cardoza-Fuentes , 408 F. App'x 8 ( 2010 )

FILED
NOV 05 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-10603
Plaintiff - Appellee, D.C. No. CR-07-00471-NVW
v.
MEMORANDUM *
ERNESTO CARDOZA-FUENTES, aka
Carlos E. Cardoza-Fuentes, aka Carlos
Ernesto Cardoza,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
Before: ALARCÓN, RYMER, Circuit Judges, and TRAGER, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
We must decide whether a criminal defendant charged with illegal reentry
into the United States can succeed in a collateral attack on a prior deportation order
by demonstrating that he had plausible grounds for relief under the now-repealed
Section 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §
1182(c) (Supp. IV 1992). Although now repealed, Section 212(c) may still provide
a defendant facing deportation access to discretionary relief if his ground of
deportability has a corresponding ground of exclusion in Section 212(a) of the
INA. INS v. St. Cyr, 533 U.S. 289, 326 (2001).
I
On May 2, 1991, Appellant Ernesto Cardoza-Fuentes pled guilty in Los
Angeles Superior Court to second-degree robbery, Cal. Penal Code § 211 (1991),
with a firearms enhancement for personal use of a firearm, Cal. Penal Code §
12022.5(a) (1991). In February 1998, removal proceedings were instituted based
on this conviction. The Immigration Judge concluded that Cardoza-Fuentes was
removable on the basis of two grounds of deportation as set out in the INA: (1)
committing an aggravated felony amounting to a crime of violence, 8 U.S.C. §
1251(a)(2)(A)(iii) (1991); and (2) carrying a firearm in violation of any law, 8
U.S.C. § 1227(a)(2)(C) (1998). The Immigration Judge did not advise Cardoza-
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Fuentes whether discretionary relief might be available pursuant to Section 212(c).
Cardoza-Fuentes waived his right to appeal and was deported.
II
In November 2006, Cardoza-Fuentes was discovered in the United States.
He was indicted in April 2007, for illegal reentry after deportation, 8 U.S.C. §
1326(a) & (b)(2). Cardoza-Fuentes filed a motion to dismiss, collaterally attacking
his 1998 deportation on the ground that he was prejudiced by the Immigration
Judge’s failure to advise him of the availability of Section 212(c) relief. See
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (stating
that the showing for a collateral attack requires a defendant to demonstrate, inter
alia, that (1) his “due process rights were violated by defects in the underlying
deportation proceeding,” and (2) “he suffered prejudice as a result of the defects”);
see also United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996)
(explaining that, in order to establish the requisite prejudice, an alien must
demonstrate that he had “plausible grounds for relief”).
Cardoza-Fuentes maintained that he had plausible grounds for Section
212(c) relief because, at the time of his 1991 guilty plea, some immigration judges
and the Board of Immigration Appeals (“BIA”) were broadly interpreting the
comparable grounds test set out in Section 212(c). But see Abebe v. Gonzales
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(Abebe I), 493 F.3d 1092, 1099 (9th Cir. 2007) (“[T]he BIA and the courts have
regularly denied relief where the ground of deportability lacks a corresponding
ground of excludability.”), analysis adopted in Abebe v. Mukasey (Abebe II), 554
F.3d 1203, 1208 n.7 (9th Cir. 2009) (en banc) (per curiam). Relying on this
Court’s decision in Abebe I, the district court denied the motion to dismiss because
an aggravated felony crime of violence does not have a comparable ground of
exclusion under Section 212(a) and, thus, Cardoza-Fuentes would not have
qualified for Section 212(c) relief. Cardoza-Fuentes entered a conditional guilty
plea, which allowed him to appeal the district court’s denial of his motion to
dismiss. He was sentenced to twenty-four months of incarceration for the illegal
reentry after deportation charge.
III
A district court’s denial of a defendant’s collateral attack of an underlying
deportation order is reviewed by this Court de novo. Ubaldo-Figueroa, 364 F.3d
at 1047. Cardoza-Fuentes did not have plausible grounds to satisfy the prejudice
prong of the test for a collateral attack because our decision in Abebe I, 493 F.3d at
1104, conclusively establishes that he was statutorily ineligible for Section 212(c)
relief because his ground of deportability did not have a corresponding ground of
exclusion under Section 212(a). As this Court explained in Abebe I, well before
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the time of Cardoza-Fuentes’s guilty plea in 1991, “the BIA has resisted further
departures from the statutory text and consistently held that relief is available only
for aliens facing deportation on a ground with some tight connection to a ground of
excludability that could have been waived under § 212(c) . . . .” Id. at 1099. The
district court’s denial of Cardoza-Fuentes’s collateral attack of his prior
deportation order was consistent with the law of this circuit.
IV
Cardoza-Fuentes also contends that the denial of his motion to dismiss
violated his right to equal protection. This argument was rejected by this Court in
Abebe II, 554 F.3d at 1207. See Galbraith v. County of Santa Clara, 307 F.3d
1119, 1123 (9th Cir. 2002) (“Although a three judge panel normally cannot
overrule a decision of a prior panel on a controlling question of law, we may
overrule prior circuit authority without taking the case en banc when an
intervening Supreme Court decision undermines an existing precedent of the Ninth
Circuit, and both cases are closely on point.” (internal quotations and citations
omitted)).
We AFFIRM the judgment of conviction because the district court did not
err in denying Cardoza-Fuentes’s motion to dismiss.
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