United States v. Abrams

USCA1 Opinion









May 18, 1995
[Not for Publication] [Not for Publication]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________

No. 94-1694

UNITED STATES,

Appellee,

v.

WINSTON A. ABRAMS,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________
John R. Gibson,* Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________

____________________

Gordon D. Fox with whom David A. Cooper and Cooper & Sanchez were _____________ _______________ ________________
on brief for appellant.
Margaret E. Curran, Assistant United States Attorney, with whom ___________________
Ira Belkin, Assistant United States Attorney, and Sheldon Whitehouse, __________ __________________
United States Attorney, were on brief for appellee.

____________________


____________________
_____________________
*Of the Eighth Circuit, sitting by designation.



















STAHL, Circuit Judge. Defendant-appellant Winston STAHL, Circuit Judge. _____________

Abrams appeals the denial of his motion to dismiss an

indictment charging illegal reentry of a deported alien under

8 U.S.C. 1326(b)(1).1 We affirm.

I. I. __

FACTUAL AND PROCEDURAL BACKGROUND FACTUAL AND PROCEDURAL BACKGROUND _________________________________

Abrams, a citizen of Guyana, entered the United

States in February 1981 on a six-month tourist visa. After

the visa expired, he remained in the United States and, over

the next five years, was convicted of several crimes,

including robbery. During this period, Abrams, who speaks

and reads English, briefly attended college. In 1986, Abrams

filed for an adjustment of status seeking to become a lawful

permanent resident. By decision dated January 7, 1987, the

Immigration and Naturalization Service (INS) denied Abrams's

petition, but permitted him to leave the country voluntarily,

thus avoiding deportation proceedings.

Notwithstanding this concession, Abrams chose not

to leave. In July 1987, Abrams and Andrea Gardner, whom he

never married, had a son who is a United States citizen. In

____________________

1. In pertinent part, 1326 provides that any alien who has
been arrested and deported and later reenters the United
States without the Attorney General's consent shall be fined
or imprisoned, or both. 8 U.S.C. 1326(a). An alien whose
deportation "was subsequent to a conviction for commission of
three or more misdemeanors involving drugs, crimes against
the person, or both, or a felony (other than an aggravated
felony)," shall be fined or imprisoned not more than ten
years, or both. 8 U.S.C. 1326(b)(1).

-2- 2













October 1988, a New York state court convicted Abrams2 for

criminal possession of a weapon, criminal possession of

stolen property, and bail jumping. In October 1989, while

incarcerated in New York state prison, Abrams married Angela

Morgan, a United States citizen, with whom he had been living

prior to the 1988 conviction. On March 13, 1990, while

Abrams was still in prison, the INS instituted deportation

proceedings against him.3

Two deportation hearings, both held at the

Downstate Correctional Facility in Fishkill, New York,

followed. Because the events at these hearings are central

to this appeal, we recount them in some detail. At the first

hearing, held May 22, 1990 ("May hearing"), the immigration

judge advised Abrams as follows:

All right, Mr. Abrams, at this
proceeding, you have the right to be
represented by an attorney at your own
expense. If you cannot afford a lawyer
or obtain a lawyer, you should have been,
ah, presented with a list of free legal
services, as well as your appeal rights.



____________________

2. The state indictment named the defendant as Perry Gaul,
an alias used by Abrams.

3. The Order to Show Cause and Notice of Hearing charged two
grounds for deportation: (1) remaining in the United States
for a longer time than permitted following admission as a
non-immigrant in violation of what now appears at 8 U.S.C.
1251(a)(1)(B), and (2) conviction of two crimes involving
"moral turpitude not arising out of a single scheme of
criminal misconduct" in violation of 8 U.S.C.
1251(a)(2)(4)(ii).

-3- 3













At some point during the hearing, Abrams was given

the notice of his appeal rights.4 Abrams then indicated

that he wished to retain counsel. The immigration judge

continued:

The list I gave you sir, if you have a
problem getting a lawyer, you can try and
get someone on that list to represent you
and it has your appeal rights included,
just in case you have to represent
yourself.

The immigration judge advised Abrams of the nature

of the charges against him, and Abrams indicated that he

understood. The judge then asked Abrams whether he was

married, to which Abrams answered in the affirmative. Abrams

also told the judge that he had a three-year-old son. The

judge then stated:

[T]here may be some relief that you might
be able to apply for, but I would suggest
you have your lawyer here, or otherwise
we may be compelled to go ahead, even
though you're unrepresented.

The hearing was continued until July 10, 1990

("July continuance"). Unable to retain private counsel,

Abrams obtained -- on the date of the continuance -- the

____________________

4. Abrams later testified that he received a form that
appeared to be similar to INS form I-618. Form I-618 is a
one-page document explaining procedures to appeal from an
immigration judge's decision. The notice is captioned:

WRITTEN NOTICE OF APPEAL RIGHTS
Your Appeal Rights
Read This Notice Carefully __________________________

(emphasis in original).

-4- 4













services of Attorney Lindsey Collins, whose name appeared on

the free legal services list. Abrams and Collins met for ten

to fifteen minutes prior to the hearing. After the hearing

commenced, Abrams acknowledged that Collins was representing

him. During a colloquy between Abrams and the judge, Abrams

admitted that: (1) he was a citizen of Guyana; (2) had

entered the country on a six-month tourist visa; (3) had

remained in the United States without permission of the INS

after the agency permitted him to leave voluntarily; and (4)

a New York state court had convicted him on charges of

criminal possession of a weapon and possession of stolen

property.

The immigration judge then said to Abrams:

[D]o you understand, based on what you
have told me, based on what your attorney
has told me and based on the record
presented, it appears that you are
deportable from the United States for the
reasons that I have indicated. And, ah,
since you are not seeking any application
for relief, I would have no choice but to
enter an order ordering you [sic]
deportation from the United States back
to Guyana. Do you understand that sir?

Abrams responded, "yes." The immigration judge addressing

Attorney Collins asked, "Mr. Collins, on behalf of your

client, are you willing to accept such a decision as a final

decision?" Collins responded, "I do, I do your Honor." The

deportation order issued on July 10, 1990. Abrams did not

appeal the order, nor did he request an adjustment in status.



-5- 5













On April 3, 1992, Abrams was deported from the

United States. Subsequently, he reentered the United States

without permission. On August 31, 1993, he was arrested by

East Providence, Rhode Island, police for obstruction and

filing a false report, crimes for which he was convicted.

The indictment in this case then issued. On the

day of jury impanelment, Abrams filed a motion to dismiss the

indictment on the basis that the original deportation

proceeding was fundamentally unfair because he did not know

he had a right of appeal or alternative relief. On February

1, 1994, the district court held an evidentiary hearing on

the motion at which Abrams testified. Abrams acknowledged

the receipt of a form dealing with appeal rights. He also

acknowledged that, at the time he had the form, he knew it

dealt with his appeal rights. He testified that he had the

form in his possession for several hours, but he said that he

lost it during his transport from Fishkill back to the

Clinton Correctional Facility where he was serving his

sentence. He further testified that he made no effort to

obtain a new copy. Abrams also acknowledged that he

understood what the immigration judge meant when he asked

whether Abrams accepted the decision as final and Attorney

Collins answered that he did. The day following the hearing,

the district court determined that Abrams "was fairly

apprised of his right to appeal . . . [and] that he



-6- 6













understood that he had the right to appeal." On that basis,

the district court denied his motion to dismiss the

indictment.

On March 3, 1994, Abrams entered into a conditional

plea agreement with the government, reserving his right to

appeal the district court's denial of his motion to dismiss.

Entry of plea and sentencing followed.

II. II. ___

DISCUSSION DISCUSSION __________

In a prosecution brought under 8 U.S.C. 1326, the

government must prove that the defendant was previously

deported. See 8 U.S.C. 1326(a)(1). In United States v. ___ _____________

Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court made _____________

clear that due process requires that before a deportation

order may be used in a subsequent criminal proceeding, that

order must have been subject to judicial review.

Specifically, the Court stated 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 the criminal

offense." Id. at 839. In Mendoza-Lopez, the aliens were, in ___ _____________

effect, denied a direct appeal because they were given

inadequate notice of the right to appeal. The government





-7- 7













asked the Court to "assume that the respondents' deportation

hearing was fundamentally unfair." Id. ___

We conclude Abrams's collateral attack must fail

because he cannot show that there were "defects . . .

foreclos[ing] judicial review," that is, there was no denial

of his right to appeal.5 Abrams's principal argument is

that he was not advised of his right to appeal and,

consequently, there could be no "considered and intelligent"

waiver that right.6 We do not agree. Abrams acknowledges

receiving the written notice of appeal rights during the May


____________________

5. We note that our sister circuits have uniformly
interpreted Mendoza-Lopez to require a showing that defendant _____________
was both denied his right to appeal the deportation order and
that he was actually prejudiced by fundamental unfairness in
the underlying proceeding. See, e.g., United States v. ___ ____ _____________
Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994) (collecting ______________
cases). See also United States v. Fares, 978 F.2d 52, 57 (2d ___ ____ _____________ _____
Cir. 1992) ("If we find no fundamental unfairness, and we
therefore conclude that a fully informed exercise of the
right of direct appeal would have yielded the alien no relief
from deportation, the deportation order may be used to
establish conclusively an element of a criminal offense.")
(citing cases). Because Abrams fails on the first step, we
need not consider prejudice.

6. To help put this case in perspective, we reiterate two
important points. First, deportation proceedings are not
criminal actions. United States v. Bodre, 948 F.2d 28, 31 _____________ _____
(1st Cir. 1991), cert. denied, 503 U.S. 941 (1992). A _____ ______
deportation proceeding is a purely civil action to determine
eligibility to remain in this country, and not to punish
unlawful entry. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 ___ _____________
(1984). Accordingly, many of the procedural protections
required in criminal proceedings simply do not apply in this
context. See, e.g., id. at 1038-39. Second, as with ___ ____ ___
criminal proceedings, see, e.g., Jones v. Barnes, 463 U.S. ___ ____ _____ ______
745, 751 (1983), there is no constitutional right to appeal
an adverse deportation order. The right is purely statutory.

-8- 8













hearing and, as required by applicable INS regulations,7 the

immigration judge ascertained that Abrams had, in fact,

received the notice.8 Abrams, an English speaker with some

college education, further acknowledges having the notice for

several hours before misplacing it.

Abrams, however, focuses on the tail end of the

colloquy between the immigration judge and Attorney Collins

during the July continuance at which point the judge asked:

"[O]n behalf of your client, are you willing to accept such a

[deportation order] as a final decision?" Collins responded:

"I do, I do your Honor." Abrams contrasts that exchange with

the facts in United States v. Fares, 978 F.2d 52, 56 (2d Cir. _____________ _____

1992). In Fares, the immigration judge asked the defendant: _____

"And you're accepting orders of deportation to Lebanon as

final in your case with no appeal?" Id. at 57. The Fares ___ _____

court concluded that, although it was a "close question," the

quoted statement alone was an insufficient basis upon which

to conclude that the defendant had waived his right to

appeal. Id. at 56-57. Importantly however, unlike Fares, ___

Abrams received written notice of the right to appeal.


____________________

7. 8 C.F.R. 242.16 requires, in part, that the immigration
judge "shall . . . advise respondent of the availability of
free legal services . . . [and] ascertain that the respondent
has received a list of such programs, and a copy of Form I-
618, Written Notice of Appeal Rights."

8. In fact, at the May hearing, the immigration judge twice
mentioned that the appeal form contained his "appeal rights."

-9- 9













Several other facts undermine Abrams's contention

that he had no notice of his right to appeal. First, at the

May hearing, the immigration judge specifically advised

Abrams that "there may be some relief that you might be able

to apply for." Second, at the July continuance, the judge

stated that since Abrams was "not seeking any application for

relief," the only option was to issue the deportation order.

Third, as Abrams later testified, he fully understood the

implication of Collins's response regarding the finality of

the decision. Thus, in addition to the written notice of

appeal, the immigration judge made at least three direct or

indirect references to the right to appeal the deportation

order or to seek alternative relief.9

Abrams waived his rights when he failed to file a

timely appeal. On the basis of the record, we conclude that

Abrams made his waiver after receiving sufficient notice of

his rights. Accordingly, we conclude that there was no

denial of Abrams's rights and, consequently, his collateral

attack on the July 10, 1990, deportation order fails.10

____________________

9. We also note that having sought an adjustment in status
in 1986, Abrams had some familiarity with INS procedures.

10. Abrams also argues that he was not notified that he
could contact the Guyanese consulate as required by 8 C.F.R.
242.2(g) ("Every detained alien shall be notified that he
may communicate with the consular or diplomatic officers of
the country of his nationality in the United States."). This
is an issue properly addressed on direct appeal. See, e.g., ___ ____
Waldron v. INS, 17 F.3d 511, 515 (2d Cir. 1993), cert. denied _______ ___ _____ ______
115 S. Ct. 572 (1994). Since we hold that there was no

-10- 10




























































____________________

denial of a direct appeal, Abrams waived consideration of
this issue.

-11- 11













III. III. ____

CONCLUSION CONCLUSION __________

For the foregoing reasons, the decision of the

district court is affirmed. affirmed. ________













































-12- 12