FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 03-50414
Plaintiff-Appellee,
v. D.C. No.
CR 02-0766 SVW
DAVID ANDREW GONZALEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
October 8, 2004—Pasadena, California
Filed December 1, 2005
Before: Harry Pregerson, A. Wallace Tashima, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Tashima
15611
UNITED STATES v. GONZALEZ 15613
COUNSEL
Firdaus Dordi, Deputy Federal Public Defender, Los Angeles,
California, for the defendant-appellant.
Erik M. Silber, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.
15614 UNITED STATES v. GONZALEZ
OPINION
TASHIMA, Circuit Judge:
David Gonzalez appeals his conviction following a condi-
tional guilty plea to being a deported alien found in the United
States without permission, in violation of 8 U.S.C. § 1326.
Gonzalez contends that the district court should have granted
his motion to dismiss the indictment because it was based on
prior deportations that violated his due process rights. Gonza-
lez argues that the deportations impermissibly applied 8
U.S.C. § 1228(b)(5) retroactively, thus depriving him of the
ability to seek discretionary relief from deportation under 8
U.S.C. § 1182(h). Gonzalez further argues that his waiver of
judicial review was invalid and that he suffered prejudice
because he could have asserted plausible grounds for relief
from deportation. We have jurisdiction over the appeal pursu-
ant to 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
Gonzalez was indicted on one count of being an alien found
in the United States after having been deported on January 18,
2000, and December 10, 1997, in violation of 8 U.S.C.
§ 1326. His motion to dismiss the indictment was denied.
Gonzalez then entered a conditional guilty plea, reserving his
right to appeal the district court’s denial of his motion to dis-
miss the indictment. The district court accepted the plea and
sentenced Gonzalez to a 46-month term of imprisonment and
three years of supervised release. Gonzalez filed a timely
notice of appeal.
A. The Underlying Removals
Gonzalez was born in Mexico, in 1976. He entered the
United States with his parents illegally when he was three
months old. His parents subsequently adjusted their status and
became legal permanent residents (“LPR”). They did not
UNITED STATES v. GONZALEZ 15615
adjust Gonzalez’s status at the time because they thought it
would be easier to adjust it later. Gonzalez has six siblings,
all of whom were born in the United States.
When Gonzalez was 14 years old, his parents consulted
someone they thought was an attorney about adjusting Gonza-
lez’s status. The attorney told them that his status could not
be adjusted because Gonzalez had tattoos. The parents
believed the attorney and neither they nor Gonzalez applied
to adjust Gonzalez’s status.
On January 31, 1994, Gonzalez pled guilty to two counts
of second degree robbery in violation of California Penal
Code § 211. Gonzalez was sentenced to a three-year term at
the California Youth Authority. At the time of his conviction,
the offense constituted an aggravated felony, rendering Gon-
zalez deportable under 8 U.S.C. § 1252(b) (1994).
Subsequently, Congress amended the immigration laws in
a number of relevant respects. Subsection 1228(b), as
amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) and the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), pro-
vides that non-LPR aliens convicted of an aggravated felony
are subject to expedited removal, without a hearing before an
immigration judge (“IJ”), and are ineligible for any form of
relief from removal, including relief under 8 U.S.C. § 1182(h)
(also known as § 212(h) waiver). See 8 U.S.C. § 1228(b).
On December 8, 1997, the Immigration and Naturalization
Service (“INS”)1 served Gonzalez with a Notice of Intent to
Issue a Final Administrative Deportation Order. The notice
explained that Gonzalez was deportable under 8 U.S.C.
1
Most of the functions of the INS have since been transferred to the
newly-created Department of Homeland Security. See Homeland Security
Act of 2002, Pub. L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192,
2205 (2002). For convenience, we refer to the agency involved as the INS.
15616 UNITED STATES v. GONZALEZ
§ 1227(a)(2)(A)(iii) because he had been convicted of an
aggravated felony as defined by 8 U.S.C. § 1101(a)(43). The
notice further explained that, under § 1228(b), Gonzalez was
deportable without a hearing before an IJ. The notice
informed Gonzalez that he could choose to have counsel rep-
resent him at removal proceedings at his own expense and
“seek judicial review of any final administrative deportation
order by filing a petition for review” within 30 days after issu-
ance of the administrative order.
The notice required Gonzalez to indicate whether he chose
to contest his deportability based on one of the three follow-
ing grounds: (1) that he was a citizen or national of the United
States, (2) that he was an LPR of the United States, or (3) that
he had not been convicted of the criminal offense described
in the notice. Gonzalez indicated that he did not wish to con-
test the deportation order. In doing so, he also signed the fol-
lowing statement:
I admit the allegations and charge in 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 Removal Order.
The next day, an INS service officer issued a Final Admin-
istrative Removal Order, finding that Gonzalez was deport-
able based on his aggravated felony conviction and that he
was ineligible for any discretionary relief from removal. Gon-
zalez was deported the following day.
Gonzalez subsequently reentered the United States and, in
February 1999, the INS served him with a Notice of Intent to
Reinstate the December 1997 removal order. The notice
informed Gonzalez that he was removable as an alien who has
illegally reentered after previously having been removed. The
notice explained that Gonzalez could contest the INS’ deter-
UNITED STATES v. GONZALEZ 15617
mination by making an oral or written statement to an immi-
gration officer and that Gonzalez had no right to a hearing
before an IJ. Gonzalez was removed from the United States
in 2000.
B. Motion to Dismiss Indictment
In his motion to dismiss the indictment, Gonzalez argued
that, although he previously had signed a waiver of his right
to appeal his deportations, the waiver was invalid because he
was never informed of his eligibility for discretionary relief.
Gonzalez argued that § 1228(b)(5) should not apply retroac-
tively to his aggravated felony conviction and that the under-
lying deportations violated his due process rights because, at
the time of his guilty plea, he was eligible for discretionary
relief under 8 U.S.C. § 1182(h), Immigration and Nationality
Act (“INA”) § 212(h).
Gonzalez submitted declarations from his parents and sib-
lings describing the hardship they experienced as a result of
his deportation. The declarations described Gonzalez’s close
relationship with his mother and his siblings, who regarded
him as the father-figure of the family. The declarations
explained that Gonzalez is now married and has two young
children, both United States citizens. Gonzalez also submitted
a declaration from an immigration law expert stating that
Gonzalez had a plausible ground for relief from deportation
under § 1182(h). The district court denied Gonzalez’s motion
to dismiss the indictment, reasoning that Gonzalez had validly
waived his right to appeal the prior deportations and that
§ 1228(b) applied. Gonzalez then entered his conditional
guilty plea.
II. ANALYSIS
We review de novo the district court’s denial of a motion
to dismiss a § 1326 indictment, where the motion is based on
alleged due process defects in an underlying deportation pro-
15618 UNITED STATES v. GONZALEZ
ceeding. United States v. Muro-Inclan, 249 F.3d 1180, 1182
(9th Cir. 2001). A defendant may not collaterally attack the
validity of an underlying deportation unless he demonstrates
that (1) his due process rights were violated by defects in the
deportation proceeding, and (2) he suffered prejudice as a
result of the defects. 8 U.S.C. § 1326(d); see United States v.
Velasco-Medina, 305 F.3d 839, 847 (9th Cir. 2002); United
States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000).
In addition, an alien is barred from collaterally attacking
the validity of an underlying deportation order “if he validly
waived the right to appeal that order” during the deportation
proceedings. Muro-Inclan, 249 F.3d at 1182 (citation omit-
ted). Such a waiver must be “considered and intelligent.” Id.
A waiver is not considered and intelligent when the record
contains an inference that the petitioner is eligible for relief
from deportation, but the IJ fails to advise the alien of this
possibility and give him the opportunity to develop the issue.
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1051 (9th
Cir. 2004) (holding that the IJ’s failure to inform alien that he
is eligible for relief from deportation constitutes due process
violation where alien establishes prejudice); United States v.
Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004); United
States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003).
When the INS commenced removal proceedings against
Gonzalez, Gonzalez was ineligible for any discretionary relief
because he was a non-LPR alien convicted of an aggravated
felony. See 8 U.S.C. § 1228(b)(5). At the same time, Gonza-
lez had no right to a hearing before an IJ; rather, he was sub-
ject to removal through the expedited administrative
procedure as set forth in 8 C.F.R. § 238.1. See 8 U.S.C.
§ 1228(b)(1)-(4). Gonzalez argues that his waiver of the right
to appeal was invalid for two reasons: (1) the § 1228(b)(5) bar
against discretionary relief for aggravated felons should not
apply because, at the time he pled guilty to the aggravated fel-
ony, discretionary relief was available under § 212(h) and
application of the bar against discretionary relief therefore
UNITED STATES v. GONZALEZ 15619
would be impermissibly retroactive; and (2) he was not
informed of the availability of such discretionary relief, in
violation of his due process rights.
[1] In determining whether a statute has an impermissible
retroactive effect, we first must determine whether the law
“clearly expresses that the law is to be applied retroactively.”
Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003). The
language directing retroactive application “must be ‘so clear
that it could sustain only one interpretation.’ ” Id. (quoting
INS v. St. Cyr, 533 U.S. 289, 317 (2001)). If there is no such
express statement, we must determine whether the statute
would have a retroactive effect. Id. A statute has an impermis-
sible retroactive effect when it imposes new negative conse-
quences on past actions “without fair notice, or in a manner
that undermines reasonable reliance or upsets settled expecta-
tions.” Chang v. United States, 327 F.3d 911, 920 (9th Cir.
2003).
[2] Gonzalez’s retroactivity argument rests on the Supreme
Court’s decision in St. Cyr, in which the Court held that
IIRIRA’s repeal of INA § 212(c) imposed an impermissible
retroactive effect on aliens who had relied on the possibility
of discretionary relief from deportation under that section in
pleading guilty to aggravated felonies.2 St. Cyr, 533 U.S. at
315. At the time that St. Cyr, who was an LPR, entered a
guilty plea to a controlled substance violation, he became sub-
ject to deportation, and he also became eligible for a discre-
tionary waiver of that deportation under INA § 212(c).
Shortly after his conviction, Congress enacted AEDPA and
IIRIRA, which, inter alia, broadened the set of offenses pre-
cluding § 212(c) relief and then repealed § 212(c) altogether.
See id. at 297 (discussing pertinent effects of AEDPA and
IIRIRA).
2
There is no question that § 1228 does not contain express language
directing retroactive application. We therefore proceed to the second step
of the analysis.
15620 UNITED STATES v. GONZALEZ
Section 212(c) relief was not available for aliens who
served a term of imprisonment of at least five years for an
aggravated felony. See 8 U.S.C. § 1182(c) (1995). Because of
the frequency with which § 212(c) relief was granted prior to
the passage of AEDPA and IIRIRA, the Court stated that
“preserving the possibility of such relief would have been one
of the principal benefits sought by defendants deciding
whether to accept a plea offer or instead to proceed to trial.”
St. Cyr, 533 U.S. at 323 (footnote omitted). The Court cited
the example of Charles Jideonwo, an alien charged with vio-
lating federal narcotics law who entered into extensive plea
negotiations with the government, “the sole purpose of which
was to ensure that ‘he got less than five years to avoid what
would have been a statutory bar on 212(c) relief.’ ” Id. (quot-
ing Jideonwo v. INS, 224 F.3d 692, 699 (7th Cir. 2000)). In
fact, “a great number of defendants in Jideonwo’s and St.
Cyr’s position agreed to plead guilty” in reliance upon “set-
tled practice, the advice of counsel, and perhaps even assur-
ances in open court that the entry of the plea would not
foreclose 212(c) relief.” Id. Because, prior to AEDPA and
IIRIRA, St. Cyr “had a significant likelihood of receiving
§ 212(c) relief,” and he “almost certainly relied upon that
likelihood” in pleading guilty, the Court held that § 212(c)
relief remained available for him. Id. at 325, 326.
[3] Unlike St. Cyr, Gonzalez did not have “settled expecta-
tions” of relief when he pled guilty in 1994. Id. at 321 (inter-
nal quotations omitted). The statutory bar to § 212(c) relief,
which was triggered by sentences for a term of five years or
more, has no such counterpart in § 212(h). Thus, unlike in St.
Cyr, there is no indication that, as a matter of common prac-
tice, aliens have chosen to forego their constitutional right to
trial in reliance on maintaining their eligibility for § 212(h)
relief by pleading guilty and thus ensuring a particular sen-
tence.
[4] Gonzalez contends that, at the time he pled guilty, he
could have applied for adjustment of status to LPR status,
UNITED STATES v. GONZALEZ 15621
pursuant to 8 U.S.C. § 1255(i). Although he was ineligible for
adjustment of status because his conviction rendered him
inadmissible, he further could have sought a waiver of inad-
missibility under § 212(h). There is no evidence in the record,
however, that Gonzalez ever applied to adjust his status, that
his parents applied for a visa, or that a visa would have been
immediately available if an application had been filed on his
behalf, as required by 8 U.S.C. § 1255(i)(2)(B). Thus, unlike
St. Cyr, whose eligibility for relief was based solely on the
exercise of the Attorney General’s discretion under § 212(c),
the possibility of relief for Gonzalez was remote. In these cir-
cumstances, we cannot conclude that he had settled expecta-
tions of relief when he pled guilty to the aggravated felony,
within the meaning of St. Cyr.
[5] We note our holding in Alvarez-Barajas v. Gonzales,
418 F.3d 1050 (9th Cir. 2005), that § 348(b) of IIRIRA, the
provision that made aliens convicted of aggravated felonies
ineligible for § 212(h) discretionary relief, could be applied
retroactively to aliens who pled guilty to such felonies prior
to the April 1, 1997, effective date of IIRIRA § 348. Id. at
1054-55. Alvarez-Barajas, however, is not dispositive of the
instant case because § 348 expressly applies only to LPRs.
See IIRIRA § 348(a) (amending § 212(h) by prohibiting the
grant of a waiver “in the case of an alien who has previously
been admitted to the United States as an alien lawfully admit-
ted for permanent residence”). This limitation on § 212(h)
relief, therefore, does not apply to Gonzalez, who is not and
has never been an LPR. See United States v. Arrieta, 224 F.3d
1076, 1080 n.2 (9th Cir. 2000) (noting that the § 212(h) limi-
tation on an alien convicted of an aggravated felony did not
apply to someone who never was a lawful permanent resi-
dent). Our holding thus rests on Gonzalez’s failure to estab-
lish that § 1228 disrupted his settled expectations.
[6] Gonzalez was ineligible for § 212(h) relief when he was
served with a Notice to Appear on December 8, 1997, because
of the 1996 amendments to § 1228(b)(5). Therefore, Gonza-
15622 UNITED STATES v. GONZALEZ
lez’s argument that his waiver was invalid because he was not
informed of his eligibility for relief necessarily fails. Cf.
Ubaldo-Figueroa, 364 F.3d at 1051 (holding that the IJ’s fail-
ure to inform alien that he was eligible for relief from depor-
tation constitutes a due process violation if alien establishes
prejudice). We therefore conclude that Gonzalez’s waiver of
his right to appeal was valid.
III. CONCLUSION
[7] Because Gonzalez validly waived the right to appeal the
deportation orders underlying his indictment for violation of
§ 1326, Gonzalez cannot collaterally attack the validity of
those underlying deportations. See Muro-Inclan, 249 F.3d at
1182 (explaining that an alien is barred from collaterally
attacking the validity of an underlying deportation order “if he
validly waived the right to appeal that order” during the
deportation proceedings). Accordingly, the judgment of the
district court is
AFFIRMED.