Case: 12-50155 Document: 00512212758 Page: 1 Date Filed: 04/18/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 18, 2013
No. 12-50155
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO GARRIDO, also known as Francisco Cid-Garrido,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CR-1083-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Francisco Garrido appeals his conditional guilty-plea
conviction for illegal reentry into the United States, in violation of 8 U.S.C.
§ 1326, claiming that his prior deportation cannot be used as a basis for his
conviction under § 1326 because the deportation proceeding was fundamentally
unfair. He contends that the deportation proceeding violated his due process
rights because the immigration judge (IJ) affirmatively misinformed him that
he was not eligible for relief from deportation under § 212(c) of the Immigration
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-50155
and Nationality Act. Garrido also contends, for the first time on appeal, that his
due process rights were violated, claiming that his attorney provided ineffective
assistance by failing timely to file an appeal to the Board of Immigration
Appeals (BIA) or to file a motion to reopen his case in light of INS v. St. Cyr, 533
U.S. 289 (2001).
We review the denial of a motion to dismiss an indictment and the
underlying constitutional claims de novo. See United States v. Villanueva-Diaz,
634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for illegal re-entry under
§ 1326 may collaterally attack the underlying removal order. United States v.
Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). To succeed, he would need to
establish that (1) the removal hearing was fundamentally unfair, (2) the
proceeding improperly deprived him of the opportunity for judicial review, (3)
the procedural deficiencies caused him actual prejudice, and (4) he exhausted
any administrative remedies that were available to challenge the order. United
States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); § 1326(d). To show
actual prejudice, the alien must establish that, but for the errors of which he
complains, there is a reasonable likelihood that he would not have been
deported. See United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).
If the alien fails to establish any one prong of the test, the court need not
consider the other prongs. Id.
As noted, Garrido insists, as he did in the district court, that the prior
deportation proceeding was rendered fundamentally unfair because the IJ
“actively misinformed him” about the availability of discretionary relief from
deportation. He contends that the IJ was wrong when he told Garrido that he
was statutorily ineligible for § 212(c) relief. He acknowledges that, in Lopez-
Ortiz, this court held that an IJ’s failure to inform the defendant that
discretionary relief was available to him did not rise to the level of fundamental
unfairness, but he insists that his case is distinguishable from Lopez-Ortiz, viz.,
that the difference between passively failing to inform a defendant of eligibility
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No. 12-50155
for relief and actively misinforming a defendant about the availability of relief
is sufficient to establish a due process violation. He declares in the alternative
that if we determine that Lopez-Ortiz applies to his case, then he raises the issue
here to preserve it for further review.
This court’s decision in Lopez-Ortiz is binding. Any error in stating that
Garrido was not eligible for § 212(c) relief did not violate due process or
principles of fundamental fairness. Section 212(c) relief is not a property or
liberty interest protected by due process. See Lopez-Ortiz, 313 F.3d at 231.
Garrido asserts for the first time on appeal that his deportation proceeding
was fundamentally unfair because his attorney provided ineffective assistance.
As noted, he claims that counsel was ineffective for failing timely to file an
appeal to the BIA and for failing timely to file a motion to reopen the proceedings
after St. Cyr. He argues that he was prejudiced by counsel’s actions because he
could have made a strong showing in support of his application for § 212(c) relief.
The conditional guilty plea entered by Garrido explicitly provides that he
is entitled to appeal the district court’s order denying his motion to dismiss the
indictment. At the rearraignment hearing, the district court expressed to
Garrido that his right to appeal the limited legal issues raised by his attorney
was being reserved. Garrido’s conditional guilty plea thus reserved his right to
appeal, but only on the grounds raised in the motion to dismiss the indictment.
See United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011), cert.
denied, 132 S. Ct. 1969 (2012). As Garrido did not raise the ineffective
assistance of counsel issue in his motion to dismiss the indictment, his guilty
plea waived the right to challenge his prior deportation on this ground. Id. The
judgment of the district court is AFFIRMED.
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