United States v. Benitez-Villafuerte

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 98-10730
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

GABRIEL BENITEZ-VILLAFUERTE,

Defendant-Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

On July 2, 1997, Gabriel Benitez-Villafuerte (“Benitez”) was

deported from the United States under the expedited removal

procedure set forth in 8 U.S.C. § 1228. Soon thereafter, he

illegally reentered. This appeal arises out of the government’s

criminal prosecution of Benitez under 8 U.S.C. § 1326(a) and (b)(2)

for that illegal reentry. In this prosecution, the government has

the burden to prove that Benitez had been previously deported.

During the prosecution of this case, Benitez collaterally attacked

the constitutionality of the previous § 1228 proceeding under

United States v. Mendoza-Lopez, 481 U.S. 828 (1987), and moved the

district court to suppress the evidence of his deportation. The

district court granted the motion. It noted that Benitez had

waived his rights to judicially contest that deportation only
before the INS officers and that he had not been taken before any

neutral magistrate before he was deported. Consequently, it held

that Benitez’s deportation had failed to comport with Fifth

Amendment procedural due process. We hold that waiver of rights in

an administrative deportation under § 1228 satisfies procedural due

process. As such, since the record of Benitez’s § 1228 proceeding

is not constitutionally tainted, it is admissible in this case.

For the reasons that follow, we reverse the judgment of the

district court and remand the case for trial.

I

A

On February 13, 1997, Gabriel Benitez-Villafuerte, a Mexican

national, was convicted in Dallas County, Texas, of theft of

property exceeding $1,500 in value, in violation of Texas Penal

Code § 31.03.1 Benitez received a suspended sentence of two years

imprisonment.

Sometime later, Benitez was apprehended by the local

authorities and placed in the Dallas County jail.2 On June 30,

1997, Benitez was removed from jail and detained by the Immigration

and Naturalization Service (the “INS”). After interviewing Benitez

in English and reviewing his conviction documents, Border Patrol

1
Although the record is not entirely clear, it seems that the
object of the theft was an air conditioning unit.
2
The record contains no information as to the exact date
Benitez was detained nor why.

2
Agent Michael Winfrey recommended to his supervisor, Debbie Bryant,

that because of Benitez’s prior felony conviction, he was subject

to deportation from the United States. Consequently, the INS

initiated expedited removal proceedings against Benitez under

8 U.S.C. § 1227(a)(2)(A)(iii)3 and 8 U.S.C. § 1228.4 The

deportation was administratively conducted by the INS. INS

Assistant Deputy Director Neil Jacobs prepared and signed the

Notice of Intent to Issue Final Administrative Removal Order

(“Notice of Intent”), the initial charging document, alleging that:

(1) Benitez entered the United States on or about January 20, 1997,

near Laredo, Texas, without inspection by an immigration officer;

(2) Benitez had not been admitted for permanent residence in the

3
Section 1227(a)(2)(A)(iii) provides that “any alien who is
convicted of an aggravated felony at any time after admission is
deportable.”
4
Section 1228(b)(1) provides for the expedited removal of an
alien who is not a permanent resident and who is deportable under
§ 1227(a)(2)(A)(iii). This section reads as follows:
(1) The Attorney General may, in the case of an alien
described in paragraph (2), determine the deportability
of such alien under section 1227(a)(2)(A)(iii) of this
title (relating to conviction of an aggravated felony)
and issue an order of removal pursuant to the procedures
set forth in this subsection or section 1229a of this
title.

(2) An alien is described in this paragraph if the
alien--
(A) was not lawfully admitted for permanent residence
at the time at which proceedings under this section
commenced; or
(B) had permanent resident status on a conditional
basis (as described in section 1186a of this title) at
the time that proceedings under this section commenced.

3
United States; (3) Benitez had been convicted of theft on

February 13, 1997, which constituted an aggravated felony under

8 U.S.C. § 1101(a)(43)(G)5; and, thus, (4) Benitez was deportable

under § 1227(a)(2)(A)(iii). Agent Winfrey served Benitez with the

Notice of Intent form, and read the contents of the document to him

in English. Benitez, in turn, signed the second page of the Notice

of Intent form, acknowledging its receipt. After indicating that

he wished to return to Mexico, Benitez signed the “waiver” portion

of the Notice of Intent form, which provided:

I DO NOT WISH TO CONTEST

“I admit the allegations and charges of this Notice of
Intent. I admit that I am deportable and acknowledge
that I am not eligible for 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 the
final order. I wish to be deported.
I also waive the 14 day period of execution for the final
order of removal....”

(1 R 0085).

A second INS agent, Detention Enforcement Officer Darrell

Russell, witnessed Benitez’s signature, and attested to such on the

Notice of Intent form. That same day, INS Deputy District Director

William G. Harrington executed a Final Administrative Removal Order

(the “Removal Order”), which was also served on Benitez and read to

him in English. In the Removal Order, Harrington made the

5
8 U.S.C. § 1101(a)(43)(G) defines that the term “aggravated
felony,” inter alia, as “a theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment [is] at least one year.”

4
following findings of fact and conclusions of law: (1) Benitez was

not a citizen or national of the United States, nor had he been

lawfully admitted for permanent residence; (2) Benitez had been

convicted of an aggravated felony as defined in § 1101(a)(43)(G)

and therefore was ineligible for any discretionary relief from

removal that the Attorney General may grant; and (3) the

administrative record established by clear, convincing, and

unequivocal evidence that Benitez was deportable under

§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony.

The Removal Order further decreed that Benitez was to be deported

to Mexico. Consequently, on July 2, 1997, Russell served Benitez

with a warrant of deportation, and he was subsequently deported.

In less than a year, Benitez had reentered the United States.

On January 5, 1998, he was arrested in Dallas, Texas. While

incarcerated, Benitez was questioned by INS agents, and a criminal

investigation of his alien status was initiated.

On March 3, Benitez was indicted on one count of illegal

reentry after deportation in violation of 8 U.S.C. § 1326(a) and

(b)(2)6. Following a plea of not guilty, Benitez filed a motion to

6
Section 1326(a) and (b)(2) provides in relevant part:

(a) Subject to subsection (b) of this section, any alien
who--
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order
of exclusion, deportation, or removal is outstanding, and
thereafter
(2) enters, attempts to enter, or is at any time found
in, the United States, unless (A) prior to his

5
suppress the evidence of his prior deportation on the grounds that

it violated his right to procedural due process.7 The district

court granted Benitez’s motion to suppress.

The district court reasoned that because Benitez’s waiver of

rights in the § 1228 proceeding was not before a neutral magistrate

who formally advised Benitez of his basic rights, including the

right to contest his expedited removal, his waiver did not comport

with constitutional due process. The district court therefore

suppressed the evidence of Benitez’s July 2, 1997 deportation. The

government filed a timely appeal.

II

reembarkation at a place outside the United States or
his application for admission from foreign contiguous
territory, the Attorney General has expressly consented
to such alien's reapplying for admission; or (B) with
respect to an alien previously denied admission and
removed, unless such alien shall establish that he was
not required to obtain such advance consent under this
chapter or any prior Act, shall be fined under Title 18,
or imprisoned not more than 2 years, or both.

(b) Criminal penalties for reentry of certain removed
aliens
Notwithstanding subsection (a) of this section, in the
case of any alien described in such subsection--
(2) whose removal was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 20
years, or both.
7
To obtain a conviction for illegal reentry, the government
must establish beyond a reasonable doubt: (1) alienage; (2) arrest
and deportation; (3) reentry into or unlawful presence in the
United States; and (4) lack of the Attorney General’s consent to
reenter. United States v. Flores-Peraza, 58 F.3d 164, 166 (5th
Cir. 1995) (citations omitted).

6
 A

The district court held that before evidence of a § 1228

administrative deportation can be introduced in a subsequent

criminal trial for alleged reentry, the administrative deportation

must satisfy the strictest standards for due process usually

applicable only in criminal trials. Specifically, the district

court held that Benitez’s waiver of rights executed before INS

officers did not constitute an effective waiver of his basic rights

to judicially contest his deportation because his waiver had not

been made in open court before a neutral magistrate who could

affirm that the waiver was knowing and voluntary. Thus, the

district court concluded that his deportation was ordered in

violation of his Fifth Amendment due process rights, and evidence

thereof is inadmissible. The district court was unable to cite any

authority in support of its holding. This lack of authority is not

surprising since such a high hurdle has not before been raised in

order to comply with the basic notions of due process in a

deportation case.

Aliens who have entered the United States unlawfully are

assured the protection of the Fifth Amendment due process clause.

Nose v. Attorney General of the United States, 993 F.2d 75, 78 (5th

Cir. 1993); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1036

(5th Cir. 1992). The due process clause forbids the state from

“arbitrarily . . . causing an alien who has entered the

country . . . illegally to be taken into custody and deported

7
without giving him all opportunity to be heard upon the questions

involving his right to be and remain in the United States.”

Yamataya v. Fisher, 189 U.S. 86, 101, 23 S.Ct. 611, 614-15, 47

L.Ed. 721 (1903). Courts have recognized that the constitutional

sufficiency of procedures required by due process varies with the

circumstances of each individual case. Landon v. Plasencia, 459

U.S. 33 (1982), citing Lassiter v. Department of Social Services,

452 U.S. 18, 24-25, 101 S.Ct. 2153, 2158 (1981). Generally, the

right to due process includes the right to a hearing before an

immigration judge prior to deportation. Nose, 993 F.2d at 79.

Nevertheless, due process rights, including the right to a hearing,

may effectively be waived. Boddie v. Connecticut, 401 U.S. 371,

378-79, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971)(holding “the

hearing required by due process is subject to waiver”).

A deportation hearing is a civil, not a criminal, action.

Prichard-Ciriza v. I.N.S., 978 F.2d 219, 222 (5th Cir. 1992)

(citing I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984);

Carlson v. Landon, 342 U.S. 524, 538 (1952). As such, the full

range of constitutional protections available to a defendant in a

criminal case are not afforded an alien in a deportation

proceeding. Id.; Patel v. U.S. I.N.S., 803 F.2d 804, 806 (5th Cir.

1986) (citations omitted); Ramirez-Osorio v. I.N.S., 745 F.2d 937,

944 (5th Cir. 1984) (citations omitted). “The power to expel

aliens is essentially a power of the political branches of

government, which may be exercised entirely through executive

8
officers, with such opportunity for judicial review of their action

as Congress may see fit to authorize or permit.” Carlson v. Landon

342 U.S. 524, 537 (1952) (citations omitted). See also The

Japanese Immigrant Case, 189 U.S. 86, 97-98 (1903); Fong Yue Ting

v. United States, 149 U.S. 698, 713-15 (1893). Although in some

contexts, Congress has statutorily provided for the judicial review

of deportation hearings, such review is not guaranteed by the

Constitution. Carlson, 342 U.S. at 537 (citations omitted).

The Supreme Court has made it clear that due process requires

only that an alien be provided notice of the charges against him,

a hearing before an executive or administrative tribunal, and a

fair opportunity to be heard. Kwong Hai Chew v. Colding, 1953, 344

U.S. 590, 597-98 (1953). “The role of the judiciary is limited to

determining whether the procedures meet the essential standard of

fairness under the Due Process Clause and does not extend to

imposing procedures that merely displace congressional choices of

policy.” Landon, 459 U.S. at 34.

Relying on this precedent, it is clear to us that the

administrative deportation procedures of § 1228 afforded Benitez

the unimpeded opportunity to claim all the procedural due process

to which he was constitutionally entitled. Section 1228 expressly

provides that in carrying out the expedited removal procedures, the

Attorney General shall provide that--

(A) the alien is given reasonable notice of the charges
and of the opportunity described in subparagraph (C);

9
 (B) the alien shall have the privilege of being
represented (at no expense to the government) by such
counsel, authorized to practice in such proceedings, as
the alien shall choose;
(C) the alien has a reasonable opportunity to inspect
the evidence and rebut the charges;
(D) a determination is made for the record that the
individual upon whom the notice for the proceeding under
this section is served (either in person or by mail) is,
in fact, the alien named in such notice;
(E) a record is maintained for judicial review; and
(F) the final order of removal is not adjudicated by
the same person who issues the charges.

§ 1228(b)(4). See also 8 C.F.R. § 238.1. The statute further

instructs that the Attorney General may not execute any final order

of removal until 14 calendar days have passed from the date that

such order was issued, unless waived by the alien, in order that

the alien has an opportunity to apply for judicial review under 8

U.S.C. § 1252. § 1228(b)(3). Clearly the expedited statutory

deportation scheme comports with the minimum requirements of due

process pronounced by the Supreme Court in Kwong Hai Chew. Thus,

if INS complied with the statutory mechanism when deporting Benitez

on July 2, 1997, such deportation complies with the standards of

due process, and evidence of this prior deportation is admissible

in this case.

The record indicates that Benitez was given notice of the

charges against him by Agent Winfrey. Agent Winfrey explained to

Benitez that he had a right to contest the deportation at a

hearing, and Benitez waived this right. Finally, Benitez waived

his 14-day stay of execution of the Final Removal Order, during

which time, Benitez would have had an opportunity to raise any

10
opposition to the proposed deportation. Following the waiver of

the 14-day stay, Officer Darrell Russell served Benitez with a

warrant of deportation, which was subsequently executed by Officer

Alfredo Garza on July 2, 1997, near Laredo, Texas. Clearly, this

chain of events provided Benitez with ample constitutional

protection. Further, there is no evidence in the record that

Benitez’s waiver was anything other than knowing and voluntary.

Thus, the evidence of the prior deportation is admissible.

B

Under certain circumstances, an alien who is being prosecuted

under § 1326 can assert a challenge to the underlying deportation

order. See United States v. Mendoza-Lopez, 481 U.S. 828, 839; 107

L.Ed. 2148, 2155 (1987). In order successfully to collaterally

attack a deportation order in a § 1326 prosecution, the alien must

show (1) that the deportation hearing was fundamentally unfair,

(2) that the hearing effectively eliminated the right of the alien

to challenge the hearing by means of judicial review of the

deportation, and (3) the procedural deficiencies caused him actual

prejudice. See United States v. Palacios-Martinez, 845 F.2d 89, 91

(5th Cir. 1988); Estrada-Trochez, 66 F.3d at 735; quoting United

States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir. 1992,

cert. denied, 506 U.S. 945, 113 S.Ct. 391, 121 L.Ed.2d 299 (1992).8

8
We note that our law is in accord with the majority rule.
See, e.g., United States v. Paredes-Batista, 140 F.3d 367, 378 (2d
Cir.), cert. denied 119 S.Ct. 143 (1998); United States v.
Loaisiga, 104 F.3d 484, 487 (1st Cir.), cert. denied, 520 U.S. 127

11
 The law is clearly established that a showing of actual

prejudice is required to succeed in such a collateral attack.

United States v. Encarnacion-Galvez, 964 F.2d 402, 409 (5th Cir.

1992); United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir.

1989); United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.

1994); United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir.

1992)(en banc). “If [the alien] cannot make [a showing of

prejudice], the deportation order may be used to establish an

element of a criminal offence.” Espinoza-Farlo, 34 F.3d at 471;

see also United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th

Cir. 1995). A showing of prejudice means “there was a reasonable

likelihood that but for the errors complained of the defendant

would not have been deported.” Estrada-Trochez, 66 F.3d at 735;

(1997); United States v. Perez-Ponce, 62 F.3d 1120, 1122 (8th Cir.
1995); United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.
1994); United States v. Meraz-Valeta, 26 F.3d 992, 998 (10th Cir.
1994) (citations omitted); United States v. Proa-Tovar, 975 F.2d
592, 595 (9th Cir. 1992) (en banc) (citations omitted); Figeroa v.
U.S. I.N.S., 886 F.2d 76, 78 (4th Cir. 1989); and United States v.
Holland, 876 F.2d 1533, 1537 (11th Cir. 1989).
To be sure, in 1996, Congress effectively codified our reading
of Mendoza-Lopez in 8 U.S.C. § 1326(d), which provides:
In a criminal proceeding under this section, an alien may
not challenge the validity of the deportation order
described in subsection (a)(1) or subsection (b) of this
section unless the alien demonstrates that:
(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order;
(2) the deportation proceeding 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.

(Emphasis added.)

12
quoting United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th

Cir. 1992, cert. denied, 506 U.S. 945, 113 S.Ct. 391, 121 L.Ed.2d

299 (1992). In short, “[i]f the defendant was legally deportable

and, despite the INS’s errors, the proceeding ‘could not have

yielded a different result,’ the deportation is valid for purposes

of section 1326.” United States v. Galicia-Gonzalez, 997 F.2d 602,

603 (9th Cir. 1993) quoting Proa-Tovar, 975 F.2d at 595.

The record is clear that irrespective whether the alleged

errors in the § 1228 proceeding occurred, Benitez would have been

deported from the United States. It is indisputable that Benitez

was convicted of a theft over $1,500 for which the term of

imprisonment was at least one year. Such conviction constituted an

aggravated felony under § 1101(a)(43)(G), and, therefore, he was

“conclusively presumed to be deportable from the United States”

under § 1228(c). See also § 1227(a)(2)(A)(iii) (“any alien who is

convicted of an aggravated felony at any time after admission is

deportable”). Moreover, as an alien convicted of an aggravated

felony, Benitez was also ineligible for any discretionary relief

from removal. § 1228(b)(5) (“no alien described in this section

shall be eligible for any relief from removal that the Attorney

General may grant in [her] discretion”). Consequently, in the

light of the incontestable evidence against him, Benitez’s

deportation was a foregone conclusion. See Perez-Ponce, 62 F.3d at

1122 (noting that absent a showing of prejudice, an alien convicted

of an aggravated felony under § 1101(a)(43) “would have no chance

13
of winning an appeal” of deportation order); Espinoza-Farlo, 34

F.3d at 471-72 (noting same). Thus, because he can show no

prejudice resulting from any deficiencies in the § 1288 proceeding,

Benitez cannot successfully collaterally attack his deportation.

C

In urging us to affirm the district court’s judgment, Benitez

raises an additional due process argument. Benitez complains that

the INS impermissibly functioned in both a prosecutorial and an

adjudicative capacity during the § 1228 proceeding. Benitez

further contends that because the INS’s federal budget is measured

largely by the number of aliens it apprehends and deports, the INS

has a fiscal interest in his deportation that infects the

impartiality of the proceeding. As a result, Benitez contends his

administrative deportation was adjudicated by a biased tribunal,

which amounts to the type of procedural error that is so

fundamentally unfair that he need not show actual prejudice.

United States v. Mendoza-Lopez, 481 U.S. 828, 839 n.17 (1987).

14
 (1)

Benitez’s first allegation of bias--that in enacting § 1228,

Congress impermissibly commingled the prosecutorial and

adjudicatory functions of the INS--is wholly devoid of merit. In

the early case of Marcello v. Bonds, 349 U.S. 302, 311 (1955), the

Supreme Court rejected the defendant’s contention that his

deportation hearing under 8 U.S.C. § 1252(b) was neither fair nor

impartial because the special inquiry officer who conducted the

proceeding was subject to the supervision and control of the INS:

Petitioner would have us hold that the presence of this
relationship so strips the hearing of fairness and
impartiality as to make the procedure violative of due
process. The contention is without substance when
considered against the long-standing practice in
deportation proceedings, judicially approved in numerous
decisions in the federal courts, and against the special
considerations applicable to deportation which the
Congress may take into account in exercising its
particularly broad discretion in immigration matters.

Similarly, in Withrow v. Larkin, 421 U.S. 35, 56 (1975), the

Supreme Court held that “it is [] very typical for the members of

administrative agencies to receive the results of investigations,

to approve the filing of charges or formal complaints instituting

enforcement proceedings, and then to participate in the ensuing

hearings.” The Withrow Court further elaborated that the fact that

the initial charge in an administrative proceeding is brought by

the same agency who later adjudicates the matter is not, in and of

itself, violative of due process. Id. at 58. Thus, the Supreme

Court’s precedent on this point is clear: we will not presume bias

15
from the mere institutional structure of the INS. See Marine Shale

Processors, Inc. v. U.S. E.P.A., 81 F.3d 1371, 1385 (5th Cir.

1996), cert. denied, 519 U.S. 1055 (1997).

To be sure, one INS officer compiled the allegations

supporting Benitez’s deportation (Jacobs), while another

(Harrington) reviewed the record, and upon concluding by clear,

convincing, and unequivocal evidence that Benitez was subject to

deportation, ordered him removed from the United States. Benitez,

however, has pointed to no evidence that shows in carrying out

these dual functions, the INS officers prejudged his case before

all facts were known to them to the extent that minds were

“irrevocably closed” to the possibility of him avoiding

deportation. See Baran, 57 F.3d at 446. Absent this showing, we

cannot say that the commingling of prosecutorial and adjudicative

functions in a § 1228 proceeding poses a risk of impermissible

bias. See id. (citing Withrow, 421 U.S. at 47).

(2)

Additionally, we summarily reject Benitez’s second charge of

bias--that the INS purportedly has a pecuniary interest in his

deportation. Although the INS’s congressional funding depends to

some extent on its statistical workload in apprehending and

deporting illegal aliens, this fact provides too tenuous an

influence to warrant a presumption that the INS or its personnel

had a direct personal, substantial, and pecuniary interest in

Benitez’s deportation. Instead, the alleged pecuniary interest

16
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 or of influencing the

conduct of an individual” INS hearing officer. Aetna Life

Insurance Co. v. Lavoie, 475 U.S. 813, 827 n.3 (1986) (citing

Tumey, 273 U.S. at 531)).

III

To conclude, we hold that the district court erred in granting

Benitez’s motion to suppress the evidence of his July 2, 1997

proceeding. The expedited deportation procedure established by

§ 1228 clearly comports with minimal due process requirements.

Further, Benitez has failed to demonstrate that he can mount a

successful collateral attack on the validity of the § 1228

proceeding. Nor has he shown that he was prejudiced by any

deficiencies in the § 1228 proceeding.9 Thus, the evidence of the

prior deportation is admissible in Benitez’s subsequent criminal

trial, and the district court erred when it suppressed evidence

thereof. As such, we REVERSE the judgment of the district court

9
Benitez also argues that his administrative deportation was
fundamentally unfair because no record was made of the § 1228
proceeding and his waiver of rights in the administrative
proceeding was not knowingly and voluntarily entered. Neither of
these alleged errors constitute structural errors in the § 1228
proceeding, however. In the light of our holding that Benitez has
failed to show actual prejudice, we need not consider these
arguments on appeal. Encarnacion-Galvez, 964 F.2d at 406
(citations omitted).

17
and REMAND the case for further proceedings not inconsistent with

this opinion.

REVERSED and REMANDED.

18