UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-30663
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAUL ESTRADA-TROCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(September 27, 1995)
Before REYNALDO G. GARZA, GARWOOD, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
BACKGROUND
Raul Estrada-Trochez was charged with one count of unlawful
re-entry into the United States after deportation in violation of
8 U.S.C. § 1326 and two counts of making false statements in
violation of 18 U.S.C. § 1546(b)(3). Estrada-Trochez moved to
dismiss the unlawful re-entry charge, claiming that the original
deportation was accomplished in violation of due process. The
district court denied the motion without a hearing. Estrada-
Trochez then entered a guilty plea to the false statement charges,
but he conditioned his guilty plea to the unlawful re-entry charge
on the right to appeal the denial of the motion to dismiss.
Estrada-Trochez now appeals the denial of his motion to dismiss.
We affirm.
The record is replete with INS error. There are long,
unexplained delays in the proceedings, missing court records, and
documents misfiled in internal Immigration and Naturalization
Service files. Despite these mistakes, we have pieced together the
facts concerning the important issues in this case.
Estrada-Trochez, a citizen of Honduras, legally entered the
United States in 1963 at age six. The INS initiated deportation
proceedings against him based on a 1977 state drug conviction. The
INS issued an Order to Show Cause on February 3, 1978. Appellant
and his attorney William Noland appeared before an Immigration
Court on April 26, 1978 and conceded deportability. At this
appearance the Appellant was ordered to file his petition for
relief pursuant to 8 U.S.C. § 1182(c) (“§ 212(c) waiver”). On June
13, 1978, Estrada-Trochez timely filed the appropriate form I-191.
Appellant and his attorney were notified by certified mail
that a hearing regarding his §212(c) waiver would be held on
November 8, 1979. That hearing was postponed and Noland was
informed that he would receive notice of a rescheduled hearing at
a future date. Ostensibly due to an oversight by the INS and the
Immigration Court, no action was taken in Estrada-Trochez’s case
for more than five and one-half years.
On June 5, 1985 the INS filed a Motion for Decision requesting
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that the Immigration Court find that Estrada-Trochez had abandoned
his request for a § 212(c) waiver because he had failed to timely
file an I-191. Five days later, the INS withdrew its motion,
conceding that Appellant had timely filed the I-191.
Noland moved to withdraw as Estrada-Trochez’s counsel on June
12, 1985, asserting that he had not been in contact with his client
for several years and did not know how to locate him. Noland
averred that, although he “maintained the same law office address
and telephone number from 1978 to present” he never received a
response from the Immigration Court regarding his motion to
withdraw, nor did he receive any notices of hearings from the
Immigration Court. No action was taken on the case for another two
years.
On February 13, 1987, a notice of hearing was mailed to Noland
indicating that a hearing regarding Estrada-Trochez’s I-191 would
be held on March 27, 1987. That hearing was rescheduled, and
Noland did not receive any further notice regarding a new hearing
date. On May 21, 1987, a notice of a hearing to be conducted on
July 16, 1987, was mailed to Estrada-Trochez at his 1978 address
via regular mail. The notice of hearing was returned as
undeliverable.
The deportation hearing was held in absentia on July 21, 1987,
and the Immigration Court held that Estrada-Trochez was deportable
(as Appellant had admitted) and had failed to establish his
eligibility for discretionary relief. A warrant of deportation
issued on August 5, 1987, and notice that he was to be deported was
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sent to Estrada-Trochez’s 1978 address via certified mail.
Appellant asserts that he did not learn of the deportation order
until he filed a request for a replacement alien registration card
in 1992. He was arrested by INS agents on June 30, 1992 and
deported to Honduras on July 8, 1992.
INS agents arrested Estrada-Trochez on October 14, 1993 in
Louisiana after he had illegally re-entered the country on or about
January 7, 1993. Appellant moved to re-open the 1987 deportation
proceeding, asserting that he was denied procedural due process
because neither he nor his attorney of record received notice of
the deportation hearing. The Immigration Court denied the motion,
finding that the execution of a deportation order on July 8, 1992
foreclosed any right Estrada-Trochez had to contest the lawfulness
of the deportation.
DISCUSSION
Appellant’s claim that the District Court incorrectly applied
constitutional standards is reviewed de novo. United States v.
Perez-Torres, 15 F.3d 403, 406 (5th Cir. 1994).
To prevail in a collateral challenge to a deportation order,
an alien must prove: (1) The deportation hearing was fundamentally
unfair; (2) the defective deportation hearing effectively
eliminated the alien’s right to direct judicial review of the
deportation order; and (3) the procedural deficiencies caused
actual prejudice. United States v. Encarnacion-Galvez, 964 F.2d
402, 406 (5th Cir. 1992), cert. denied, 113 S.Ct. 391 (1992).
Prejudice requires a showing “that there was a reasonable
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likelihood that but for the errors complained of the defendant
would not have been deported.” Id. We hold that Estrada-Trochez
cannot demonstrate that the deportation hearing was fundamentally
unfair, and therefore, limit our discussion to the first prong of
the Encarnacion-Galvez test.
The Fairness of the Deportation Hearing
An alien is entitled to due process under the Fifth Amendment
in his deportation hearing. Patel v. INS, 803 F.2d 804, 806 (5th
Cir. 1986); Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985).
Holding a deportation hearing in absentia does not per se violate
due process. Patel, 803 F.2d at 806. An in absentia hearing is
permissible if the alien has been given “a reasonable opportunity
to be present at the proceeding” and “without reasonable cause
fails or refuses to attend.” 8 U.S.C. § 1252 (b). Thus, we
address whether Estrada-Trochez had a reasonable opportunity to be
present at his deportation hearing and whether he failed to attend
without reasonable cause.
Appellant argues that the notice sent to his last known
address was inadequate under 8 U.S.C. § 1252(b), thereby depriving
him of a reasonable opportunity to be present at the hearing. He
argues that the INS “easily” could have notified him through his
father, sister, or brothers because all of their current names and
addresses were contained on his I-191. Estrada-Trochez also argues
that Noland was still his counsel of record and should have been
notified of the hearing.
We hold that the notice sent to Appellant satisfies the
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requirements of constitutional due process.1 The INS mailed the
notice of the deportation hearing to the last address that Estrada-
Trochez provided to the INS. Estrada-Trochez did not receive this
notice, however, because he had moved without informing the
government of his change of address, as required by 8 U.S.C. §
1305. While his case was pending, the statutory duty remained on
the Appellant to “notify the Attorney General in writing of each
change of address and new address within ten days from the date of
such change . . . .” 8 U.S.C. § 1305. Estrada-Trochez offers no
evidence that he complied with this law at any time during the nine
year delay. Although the INS is certainly to blame for its abysmal
handling of Estrada-Trochez’s deportation, the ultimate fault lies
with the Appellant for his failure to comply with a law that is
essential to the administration of the INS. This is particularly
true since Appellant had formally admitted his deportability and
the only issue remaining was whether Appellant could prove he was
entitled to relief. Therefore, Estrada-Trochez had a reasonable
opportunity to be present at his deportation hearing and failed to
attend without reasonable cause.
Appellant also argues that because the notice misstated the
date of the proceeding, the hearing was fundamentally unfair. The
The notice requirements for deportation proceedings are set
forth in 8 U.S.C. § 1252(b): "the alien shall be given notice,
reasonable under all the circumstances, of the nature of the charge
against him and of the time and place at which the proceedings will
be held." 8 U.S.C. § 1252(b). This statute does not impose a more
stringent notice requirement on the INS than required by the
Constitution. See Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314-15 (1950).
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hearing was held on July 21, 1987, but the notice indicated that
the hearing would take place on July 16, 1987. Even though the
notice was flawed, we find that Appellant suffered no prejudice
from the discrepancy in the hearing dates. Estrada-Trochez would
not have attended a hearing on either July 16 or July 21 as a
result of his failure to update his address pursuant to 8 U.S.C. §
1305.
CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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