IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________
No. 91-1853
___________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO ENCARNACION-GALVEZ,
Defendant-Appellant
___________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________________________________________
(June 17, 1992)
Before KING and WIENER, Circuit Judges and LAKE,* District Judge.
SIM LAKE, District Judge:
Defendant-Appellant, Roberto Encarnacion-Galvez, appeals his
conviction for illegal reentry into the United States following
deportation in violation of 8 U.S.C. § 1326. Encarnacion-Galvez
argues that the district court erred in denying his motions to
dismiss the indictment and to suppress evidence. We AFFIRM.
Facts and Procedural History
Encarnacion-Galvez is a citizen of Mexico. He unlawfully
entered the United States in May of 1983. In 1987 he was convicted
*
District Judge for the Southern District of Texas, sitting
by designation.
of aggravated robbery in a Texas state court and received a ten-
year sentence. While Encarnacion-Galvez was in state prison the
United States Immigration and Naturalization Service initiated
deportation proceedings against him under 8 U.S.C. § 1251(a). This
statute provided a number of alternative grounds for deporting an
alien. Among those grounds were entry into the United States
without inspection and commission of a crime of moral turpitude
within five years after entry into the United States for which a
sentence of confinement of a year or more is imposed.1 At the
hearing before the district court on his motion to dismiss the
indictment Encarnacion-Galvez gave the following answers to ques-
tions about a meeting he had with his attorney after an immigration
judge ordered him to show cause why he should not be deported:
Q. And what, to your recollection, did you discuss
with her about your immigration status?
A. She told me that I will be deported, but I need to
appear before a judge.
Q. And what did she advise you in respect to appearing
before the judge?
A. She told me that I had a chance to stay here in
Texas or to be sent back to Mexico.
Q. What did she tell you would happen if you chose to
fight the case and try to stay in the United
States?
1
At the time of Encarnacion-Galvez's deportation these
provisions were found in 8 U.S.C. § 1251(a)(2) and (4). They have
since been recodified and are now found in 8 U.S.C. § 1251(a)(1)(B)
and (2)(A)(i).
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\91-1853.Op
A. She told me that my chances wasn't very big because
I was with aggravated crime committed, but she told
me that I have some chances for the long period of
time that I have been here in the United States.
Q. Was your decision to fight the immigration case,
Mr. Encarnacion?
A. No.
Q. Why did you choose not to fight the case?
A. Because she told me that, if I wanted to fight it,
I needed to be in jail for six months, for a period
between six months to a year.
Q. What did you choose to do, instead, Mr.
Encarnacion?
A. According to what she told me and explained to me
is that I was able to go back to Mexico, if I would
sign a voluntary departure.
Q. Did you, in fact, sign a document waiving your
right to a hearing?
A. Yes.2
Encarnacion-Galvez identified for the district court a Spanish
language instrument entitled "Statements Given For The Final
Deportation Order To Be Issued" that he and his attorney signed on
March 17, 1988. Encarnacion-Galvez testified that he discussed the
"Statements" with his attorney and read the instrument before
signing it, although he did not read Spanish well.3 In the
"Statements" Encarnacion-Galvez acknowledged, among other things:
(1) I have been given the Order to Show Cause on 3-1-88,
and my true, correct and complete name is as stated in
that document.
2
Record Vol. 2 at pp. 8 and 9.
3
Record Vol. 2 at pp. 10 and 12-14.
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(2) I have consulted with the attorney mentioned below,
and I hereby give up my right to have a hearing before an
immigration judge.
(3) My lawyer has fully explained my rights to me. I
understand my rights, and I waive further explanation of
my rights by the court.
(4) I hereby admit all the allegations of fact contained
in the Order to Show Cause as true and correct as
written.
(5) I hereby agree that I am subject to be deported from
the United States in accordance with the charges in the
Order to Show Cause.
. . .
(7) I am requesting the issuance of an order for my
deportation to Mexico.
. . .
(9) I will accept a written order of deportation to the
country I designate as the final disposition of this
deportation process.4
The March 1, 1988, Order to Show Cause referred to in the
"Statements" alleged that Encarnacion-Galvez was a citizen of
Mexico, that he entered the United States illegally in May of 1983,
that he was convicted of aggravated robbery on September 1, 1987,
for which he was sentenced to ten years' confinement in the Texas
Department of Corrections, and that he was deportable under
§§ 241(a)(2) and (4) of the Immigration and Nationality Act5
because he had entered the United States illegally and, after
4
Although the only version of the "Statements" in the record
is in Spanish (Defendant's Ex. No. 1), Encarnacion-Galvez does not
dispute the English translations of these portions of the "State-
ments."
5
Formerly 8 U.S.C. § 1251(a)(2) and (4).
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\91-1853.Op
entry, had been convicted of a crime of moral turpitude for which
he was sentenced to confinement of a year or more.
On April 29, 1988, the immigration judge signed a Decision and
Order deporting Encarnacion-Galvez to Mexico.6 In the Decision and
Order the immigration judge acknowledged Encarnacion-Galvez's
"Statements" waiving a hearing, admitting the charges in the Order
to Show Cause, and conceding his deportability. The judge
concluded that there were no factual or legal disputes to be
resolved, and that "as a result of respondent's admitted criminal
record in the United States, there [is] no relief from deportation
apparently available to him or discretionary considerations to be
exercised by the [judge] . . . ." Encarnacion-Galvez did not
appeal the order of deportation or pursue further administrative
remedies.7
Encarnacion-Galvez was deported on September 5, 1990. He did
not receive consent from the Attorney General to apply for readmis-
sion to the United States after his deportation. On March 1, 1991,
United States Border Patrol agents Torrez and Guerrero, patrolling
in an unmarked vehicle, observed Encarnacion-Galvez driving a
vehicle in Mineral Wells, Texas. Agents Torrez and Guerrero were
suspicious that Encarnacion-Galvez and a passenger, Ramirez, were
6
Record Vol. 1 at p. 50.
7
Record Vol. 1 at p. 50. An alien who is dissatisfied with
the order of an immigration judge may appeal to the Board of
Immigration Appeals and from there to a United States Court of
Appeals.
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\91-1853.Op
illegal aliens because of their physical appearance and manner of
dress, and the agents followed the vehicle driven by Encarnacion-
Galvez into a parking lot. The vehicle driven by Encarnacion-
Galvez stopped and parked before the agents' vehicle reached the
lot. After parking in a manner that did not prevent Encarnacion-
Galvez from driving or walking out of the lot, the agents
approached Encarnacion-Galvez's vehicle on foot. Both agents were
dressed in plain clothes and were armed, but their weapons were not
visible to Encarnacion-Galvez or Ramirez. Speaking through the
automobile window, the agents identified themselves as Border
Patrol agents and inquired about Ramirez's citizenship status.
After Ramirez stated that he was a resident alien, agent Torrez
asked him to produce his resident alien card. Ramirez responded
that his resident alien card was at his home in Weatherford, Texas.
At Torrez's request Ramirez then got out of the car so that a
computer check could be run on his citizenship status.
While agent Guerrero continued talking with Ramirez, agent
Torrez questioned Encarnacion-Galvez, who had remained in the car,
through the passenger-side window. Encarnacion-Galvez stated that
he also was a resident alien and produced a Texas driver's license
issued in his name. When asked to produce his resident alien card,
Encarnacion-Galvez also said that he had left it at his home in
Weatherford. Encarnacion-Galvez agreed to a computer check on his
citizenship status. The computer checks conducted by agent Torrez
did not reflect that Encarnacion-Galvez and Ramirez were registered
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\91-1853.Op
as resident aliens. Encarnacion-Galvez and Ramirez then agreed to
accompany the agents to Weatherford to produce their resident alien
cards. While riding in the agents' vehicle, Encarnacion-Galvez
recanted and admitted that he was not a resident alien.8
On March 28, 1991, Encarnacion-Galvez was indicted for illegal
reentry after deportation in violation of 8 U.S.C. § 1326. He
moved to dismiss the indictment and to suppress his driver's
license and his statements to the Border Patrol agents. The
district court held an evidentiary hearing on both motions.
The testimony raised three factual disputes concerning
Encarnacion-Galvez's deportation. First, contrary to the language
of the "Statements," Encarnacion-Galvez testified that he believed
that by signing the "Statements" he was agreeing to voluntary
departure, not deportation. Second, Encarnacion-Galvez testified
that he did not understand that by signing the "Statements" he
would never appear before a judge.9 This testimony contradicted
admission (2) of the "Statements" and the testimony of Encarnacion-
Galvez that he signed the "Statements" only after his lawyer told
him that if he chose "not to fight the case" and to sign the waiver
of his right to a hearing, he would not need to appear before an
immigration judge.10 Finally, Encarnacion-Galvez argued that he did
not knowingly waive his right to a hearing and to deportation
8
Record Vol. 2 at pp. 17-36.
9
Record Vol. 2 at pp. 10 and 11.
10
Record Vol. 2 at pp. 8 and 9, quoted supra.
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\91-1853.Op
because at the time that he signed the "Statements," he did not
read Spanish well, did not speak English at all, and had relied
upon another inmate to translate the discussions with his lawyer.
The district court resolved these fact issues against
Encarnacion-Galvez. The court found that "the defendant obviously
knew what he was doing when he signed the ["Statements"] and know-
ingly and willingly consented to the procedure that was followed
that resulted in his deportation. And I am persuaded that he knew
he was being deported, rather than having some other kind of pro-
ceeding."11 The court also denied Encarnacion-Galvez's motion to
suppress, holding that the contact between the Border Patrol agents
and Encarnacion-Galvez was not a seizure requiring reasonable
suspicion, but only a casual contact. Alternatively, the court
concluded that if the contact was a stop that required reasonable
suspicion, the agents' experience and knowledge of the traits of
illegal aliens met that requirement.12 Encarnacion-Galvez then
entered a conditional plea of guilty preserving his right to appeal
the district court's denial of his motions.
The Motion to Dismiss the Indictment
Encarnacion-Galvez argues that the deportation proceeding was
fundamentally unfair because his waiver of a hearing before an
immigration judge and consent to deportation were neither knowing
11
Record Vol. 2 at p. 15.
12
Record Vol. 2 at p. 39.
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nor the result of his considered judgment. Because the deportation
order was obtained in violation of his due process rights, he
argues that the government cannot rely on it as an element of proof
to support his conviction under 8 U.S.C. § 1326. The government
responds that the deportation proceeding was not fundamentally
unfair because Encarnacion-Galvez failed to show either that his
waiver of a hearing and agreement to deportation were unknowing and
unintelligent, or that he suffered any prejudice from the alleged
unfairness of the deportation proceeding. We begin our analysis of
these arguments by briefly summarizing precedent in the area.
In United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct.
2148 (1987), the Court held that an alien charged with illegal
reentry after deportation may collaterally challenge the validity
of his deportation in a subsequent criminal prosecution if the
deportation proceeding effectively eliminated the alien's right to
obtain judicial review of his deportation. Because the government
conceded that the deportation order at issue in Mendoza-Lopez was
fundamentally unfair, that Court had only to decide whether a
collateral challenge was permissible. The Court had no need to
decide what a defendant must show to prevail in such a collateral
challenge.13 The issue before this court is the converse of that
before the Court in Mendoza-Lopez. The government concedes that
13
The United States did not seek review of the Eighth Cir-
cuit's holding that the deportation proceeding was fundamentally
unfair and the deportation order therefore unlawful. Mendoza-
Lopez, 481 U.S. at 834, n.8, 107 S.Ct. at 2153, n.8.
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\91-1853.Op
Encarnacion-Galvez can collaterally attack his deportation, but
argues that he cannot prevail on his collateral attack because his
deportation proceeding was not fundamentally unfair.
Mendoza-Lopez presupposes a two-step process for determining
when an alien can prevent his deportation from being used as a
basis for conviction under 8 U.S.C. § 1326. First, the alien must
show that the deportation hearing was fundamentally unfair.
Second, he must show that the defective deportation hearing
effectively eliminated his right to direct judicial review of the
deportation order. United States v. Palacios-Martinez, 845 F.2d
89, 91 (5th Cir.), cert. denied, 488 U.S. 844, 109 S.Ct. 119
(1988). To successfully challenge a prior order of deportation an
alien must satisfy both elements. Should he fail to prove either
element, a court need not consider the other. Palacios-Martinez,
845 at 92; United States v. Saucedo-Velasquez, 843 F.2d 832, 836,
n.6 (5th Cir. 1988).
In Palacios-Martinez the defendant challenged a deportation
order issued following a hearing at which he and a group of other
aliens appeared. The immigration judge advised them as a group of
their rights and asked them if they understood their rights and
wished to waive them. All of the aliens consented to deportation.
Palacios-Martinez later reentered the United States and was charged
with illegal reentry under 8 U.S.C. § 1326. In a motion to dismiss
his indictment, Palacios-Martinez collaterally challenged his
deportation as being fundamentally unfair because he was not
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individually advised of the rights he waived by consenting to
deportation. Alternatively, he argued that the waiver was not a
considered and intelligent decision. The court affirmed the
district court's denial of his motion to dismiss, holding that the
"alleged defects even if assumed to be true do not rise to the
level of being fundamentally unfair, thereby depriving him of due
process. Failure to ensure that a potential deportee knows and
fully understands each and every one of his rights under INS
regulations is not a deprivation of fundamental fairness."
Palacios-Martinez, 845 F.2d at 92. Although most of the court's
opinion dealt with its conclusion that the alleged procedural
deficiencies did not render the deportation proceeding funda-
mentally unfair, the court's observation that the immigration judge
"specifically determined that none of the deportees were eligible
for relief from deportation,"14 indicates that the court also viewed
the potential prejudice to the deportee as part of the equation for
determining if the proceeding was fundamentally unfair.
The court applied the same two-part test in United States v.
Zaleta-Sosa, 854 F.2d 48 (5th Cir. 1988). Zaleta-Sosa complained
that he was not advised of his right to appeal an order of the
immigration judge until the deportation hearing and that the
immigration judge did not adequately explain his right to appeal.
The court held that even if true, these complaints did not render
the hearing fundamentally unfair. Zaleta-Sosa, 854 F.2d at 51-52.
14
Palacios-Martinez, 345 F.2d at 92.
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The court also held that Zaleta-Sosa had failed to show any likeli-
hood of avoiding deportation. Zaleta-Sosa, 854 F.2d at 52, n.5.15
Perhaps because the focus of our prior decisions was whether
the underlying deportation proceedings were procedurally deficient,
they do not explicitly state that a showing of fundamental unfair-
ness also requires that the alleged procedural deficiencies caused
actual prejudice to the defendant. Although a fair reading of our
decisions submits to no other reasonable interpretation,16 we now
make manifest the requirement that a defendant must show actual
prejudice to succeed in a collateral attack of his deportation. By
a showing of prejudice, we mean that there was a reasonable
likelihood that but for the errors complained of the defendant
would not have been deported. This standard is consistent with our
alternative holding in Zaleta-Sosa and with a large body of
analogous case law dealing with collateral challenges to criminal
convictions. See Strickland v. Washington, 466 U.S. 668, 694-697,
104 S.Ct. 2052, 2068-69 (1984).
15
The district court order affirmed in Zaleta-Sosa held that
the prior deportation could be used in a criminal prosecution
because the defendant had not been denied due process at his
deportation hearing and because he had not shown prejudice from the
alleged procedural defects. Zaleta-Sosa, 854 F.2d at 50.
16
Both the Ninth and Eleventh Circuits have read Zaleta-Sosa
as requiring a showing of actual prejudice to succeed on a
collateral challenge of a deportation order. United States v.
Proa-Tovar, 945 F.2d 1450, 1453 (9th Cir. 1991); United States v.
Holland, 876 F.2d 1533, 1536 (11th Cir. 1989).
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\91-1853.Op
Encarnacion-Galvez urges us to adopt instead the "bright-line
rule" of United States v. Proa-Tovar, 945 F.2d 1450, 1453 (9th Cir.
1991), which dispensed with any requirement that a defendant show
prejudice to succeed in a collateral attack on his deportation.
The majority in Proa-Tovar held that because the INS deportation
proceeding effectively foreclosed the defendant's right of judicial
review, the government was automatically barred from using the
deportation order in a subsequent criminal prosecution regardless
of whether there were any errors in the procedure that led to the
decision to deport the defendant. We decline Encarnacion-Galvez's
invitation for several reasons. First, we must adhere to our
precedent in Palacios-Martinez and Zaleta-Sosa, which requires a
defendant to show that the procedural defects of which he complains
prejudiced him before he can succeed in a collateral attack on his
deportation. Second, even were we not bound by precedent, we find
little to recommend the Ninth Circuit's per se rule.
Although acknowledging that all other circuits that had
addressed the issue interpreted Mendoza-Lopez to require a showing
of prejudice, and that the defendant before it "presents as weak a
case as can be imagined for a showing of prejudice," Proa-Tovar,
945 F.2d at 1453, the majority in Proa-Tovar nevertheless dispensed
with the requirement that the defendant show prejudice. The court
concluded that a per se rule was more consistent with "a better
reading of Mendoza-Lopez," would encourage the INS to protect the
procedural rights of potential deportees, and would reduce the
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\91-1853.Op
burden on courts in resolving collateral challenges to deportation.
Proa-Tovar, 945 F.2d at 1453-54. We are not persuaded by this
rationale.
We find nothing in Mendoza-Lopez to indicate that the Supreme
Court intended to endorse a per se rule that dispenses with any
requirement that a deported defendant show prejudice. The Court
did not have before it the issue of what procedural deficiencies in
a deportation proceeding rendered it fundamentally unfair if
collateral review were appropriate. The language from Mendoza-
Lopez cited by the Proa-Tovar majority17 deals with whether a
complete deprivation of a deportee's right of judicial review
entitles him to mount a collateral challenge. It has nothing to do
with his burden in succeeding on such a challenge.
Nor are we persuaded by the Ninth Circuit's policy arguments
for a per se rule. A deportee's right to mount a collateral chal-
lenge to his deportation already provides incentive to immigration
judges to ensure that proper procedures are followed. See Proa-
Tovar, 945 F.2d at 1455 (Farris, dissenting). We also see little
aid to judicial economy under the Ninth Circuit's per se rule since
a court would still have to scrutinize the record of the immigra-
tion proceeding to determine if a procedural defect existed. Even
were the Ninth Circuit rule to provide some incremental deterrent
to immigration judges or some reduction in the burden on the
courts, we are concerned that such a per se rule would frustrate
17
481 U.S. at 840, 107 S.Ct. at 2156.
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other important considerations, such as the finality of INS
proceedings and the requirement that an aggrieved alien pursue his
administrative remedies in the intended and more appropriate forum,
before the INS and through a direct appeal.
In criminal trials not all errors, even those of a "constitu-
tional dimension," require a reversal. See Rose v. Clark, 478 U.S.
570, 576-77, 106 S.Ct. 3101, 3105 (1986). Yet the effect of the
Ninth Circuit's per se rule would be to require more rigorous
adherence to a defendant's procedural rights in an administrative
proceeding, where the required procedures are normally less
stringent, than in a criminal trial. As Judge Williams, writing
for the court, explained in Palacios-Martinez, 845 F.2d at 92:
In evaluating a criminal trial, the threshold
for establishing that the trial was fundamen-
tally unfair is quite high. The standard for
evaluating a civil proceeding like deportation
to establish the foundation for a criminal
offense should be no lower.
We thus remain confident in the soundness of our precedent, which
requires a showing that the procedural deficiency visited demon-
strable harm on the defendant.
Having briefly defined the relevant law, we now apply it to
Encarnacion-Galvez's appeal. The three arguments that underlie his
claim of fundamental unfairness are all fact intensive: (1) whether
he thought he was agreeing to voluntary departure instead of depor-
tation, (2) whether he understood that by signing the "Statements"
he waived the right ever to appear before an immigration judge, and
(3) whether he did not understand his attorney's admonitions and
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the "Statements" he signed because of his inability to read Spanish
well and because he had to use an inmate interpreter. All of these
questions were considered and resolved against Encarnacion-Galvez
by the district court.
In pretrial matters the court reviews district court fact-
findings based on live testimony under a clearly erroneous
standard. United States v. Piaget, 915 F.2d 138 (5th Cir. 1990).
Fact-findings are accepted unless they are clearly erroneous or
influenced by an incorrect view of the law. Piaget, 915 F.2d at
140. When applying this standard of review, the court reviews the
evidence in the light most favorable to the party that prevailed in
the district court. Piaget, 915 F.2d at 140. A waiver is reviewed
in this context under the totality of circumstances approach.
United States v. Saucedo-Velasquez, 843 F.2d 832, 835 (5th Cir.
1988).
The testimony of Encarnacion-Galvez quoted above shows that
Encarnacion-Galvez told the district court that he read the
"Statements" and reviewed it with his attorney before he signed it.
His attorney told him he could appear before a judge and fight the
case, but that his chances of success were not "very big" because
of his conviction for aggravated robbery, and that the process
could take from six months to a year, while he remained in custody.
His alternative was to sign the "Statements" waiving a right to a
hearing. Encarnacion-Galvez testified that after this discussion
with his attorney he signed the "Statements" waiving his right to
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a hearing. He specifically testified that he discussed the
"Statements" with his attorney and read it before he signed it,
although he also testified he thought he was only agreeing to
"departure" to Mexico and did not realize that he would never
appear before an immigration judge. When considered in the light
most favorable to the government, we conclude that the district
court's finding of a knowing and voluntary waiver of a hearing and
consent to deportation was not clearly erroneous. We further
conclude that even accepting Encarnacion-Galvez's version of the
disputed facts, none of these procedural defects were of such a
nature as to render his deportation proceeding fundamentally
unfair. See Zaleta-Sosa, 845 F.2d at 51-52.
Moreover, even if we were to assume that the alleged procedur-
al defects occurred and did render the deportation proceeding
unfair, Encarnacion-Galvez would still be required to establish
prejudice to succeed in his collateral attack on the deportation
order. Encarnacion-Galvez never argued to the district court that
he suffered any actual prejudice from the alleged procedural
defects in the proceeding that led to his deportation.18
Encarnacion-Galvez does not contend that the grounds for deporta-
tion in the Show Cause Order and deportation order are untrue. Nor
does he contend that any basis existed for avoiding deportation.
In response to the government's brief before this court,
Encarnacion-Galvez argued that under the immigration laws in
18
Record Vol. 1 at pp. 44-49.
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existence at the time of his deportation, he "might have been
entitled to some relief."19 Other than responding to government
arguments about his inability to obtain relief from deportation
under various immigration laws,20 the only basis Encarnacion-Galvez
affirmatively articulated for such relief is the discretionary
asylum that the Attorney General may grant under 8 U.S.C. § 1253(h)
to avoid persecution of an alien because of race, religion,
nationality, or social or political affiliation if he were
deported. There is nothing in the record that even remotely
suggests that Encarnacion-Galvez had any grounds for requesting
such asylum, however, and because Encarnacion-Galvez was expressly
deportable under 8 U.S.C. § 1251(a)(2) and (4), we find this
19
Reply Brief at p. 8. Encarnacion-Galvez argues alternative-
ly that if a showing of prejudice is necessary, he need only show
that the alleged errors "might have affected" the outcome of the
deportation hearing, citing United States v. Holland, 876 F.2d
1533, 1536 (11th Cir. 1989). We view any distinction between the
prejudice test we have articulated and the one stated in Holland as
one of semantics, not of substance, given the authorities cited by
the Eleventh Circuit for its test and its actual holding, which the
court couched in terms of whether the result "would" have been dif-
ferent in the absence of the alleged errors. Assuming for argu-
ment's sake that the Holland threshold of prejudice is lower than
ours, for the reasons stated below we conclude that Encarnacion-
Galvez has not shown that he might have been entitled to relief
from deportation. See Holland, 876 F.2d at 1537.
20
Encarnacion-Galvez articulated no basis for relief from
deportation under these laws. He was not eligible for suspension
of deportation under 8 U.S.C. § 1254(a) as it existed at the time
of his deportation because he had not been in the United States for
the minimum time required. Also, given his felony conviction, it
is very unlikely that he would have been allowed either suspension
under 8 U.S.C. § 1254(a) or voluntary departure under 8 U.S.C.
§ 1254(e) because both provisions required a showing of good moral
character for various time periods of at least five years.
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possibility to be far too slender a reed to support a showing of
prejudice. For all of these reasons we conclude that the district
court did not err in denying Encarnacion-Galvez's motion to dismiss
the indictment.
The Motion to Suppress
Encarnacion-Galvez moved to suppress the evidence against him
because it was obtained as a result of an unreasonable seizure in
violation of the Fourth Amendment. After an evidentiary hearing
the district court denied the motion, holding that the contact
between the Border Patrol agents and Encarnacion-Galvez was not a
seizure requiring reasonable suspicion, but only a casual contact.
The court further held that if the contact was a stop that required
reasonable suspicion, the agents' experience and knowledge of the
traits of illegal aliens met that requirement.21
Encarnacion-Galvez argues that the contact was a Terry22 stop
that must have been supported by reasonable suspicion. He relies
on United States v. Berry, 670 F.2d 583, 591 (5th Cir. Unit B 1982)
(en banc), which held that a seizure occurs if, under all of the
circumstances, a reasonable person would not have believed that he
was free to leave. Encarnacion-Galvez contends that when agent
Torrez questioned him after Ramirez had stepped out of the vehicle,
a reasonable person in his position would not have believed he was
21
Record Vol. 2 at p. 39.
22
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
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free to go because (1) agent Torrez did not inform Encarnacion-
Galvez that he was free to leave and (2) Encarnacion-Galvez could
not leave without Ramirez, who had left the vehicle. Encarnacion-
Galvez also argues that although Torrez's identification as a law
enforcement officer was not by itself sufficient to establish
coercion, it contributed to Encarnacion-Galvez's belief that he was
not free to leave.
"[A] district court's determination that a seizure has or has
not occurred is a finding of fact subject to reversal only for
clear error." United States v. Valdiosera-Godinez, 932 F.2d 1093,
1098, n.1 (5th Cir. 1991). Other than identifying themselves as
Border Patrol agents, the agents made no display of authority.
They did not stop Encarnacion-Galvez's vehicle, but approached it
only after Encarnacion-Galvez had parked it. The agents did not
park their vehicle in such a way that would block Encarnacion-
Galvez's path if he chose to drive or walk away. The agents only
asked Encarnacion-Galvez and Ramirez for identification and verifi-
cation of their citizenship. We conclude that the dealings between
the agents and Encarnacion-Galvez involved no coercion or deten-
tion, and that the district court's determination that no seizure
occurred was not clearly erroneous.23
23
Because we affirm the denial of Encarnacion-Galvez's motion
to suppress on this basis, we do not address the district court's
alternative basis for denying the motion.
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\91-1853.Op
Conclusion
Because the district court did not err in denying either
Encarnacion-Galvez's motion to dismiss the indictment or his motion
to suppress, we AFFIRM the district court's judgment.
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\91-1853.Op