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United States v. Peralta-Sanchez

United States Court of Appeals, Ninth Circuit

February 7, 2017

United States of America, Plaintiff-Appellee,
Rufino Peralta-Sanchez, Defendant-Appellant.

          Argued and Submitted May 4, 2016 Pasadena, California

         Appeal from the United States District Court for the Southern District of California D.C. No. 3:12-cr-03370-LAB-1 Larry A. Burns, District Judge, Presiding

          Dissenting, Judge Pregerson would hold that there is a due process right to counsel during expedited removal proceedings.

          Kara Hartzler (argued), San Diego, California, for Defendant-Appellant. Michelle L. Wasserman (argued), San Diego, California, for Plaintiff-Appellee.

          Before: Harry Pregerson, Jay S. Bybee, and N. Randy Smith, Circuit Judges.


         Criminal Law

         The panel affirmed a conviction and sentence for illegal entry, and the revocation of supervised release, in a case in which the defendant argued that his expedited removal was fundamentally unfair, and cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission.

         The panel held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4). As a result, the panel concluded that the defendant's 2012 expedited removal could be used as a predicate for his illegal reentry conviction, and affirmed the denial of the defendant's motion to dismiss the indictment and the subsequent judgment and sentence as well as the revocation of his supervised release.


          BYBEE, Circuit Judge.

         Rufino Peralta-Sanchez (Peralta) was convicted of illegal entry in violation of 8 U.S.C. § 1325 and illegal reentry in violation of 8 U.S.C. § 1326. The predicate for his illegal reentry count was his expedited removal in 2012. Peralta argues that his expedited removal was fundamentally unfair and thus cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission. We find that Peralta had no Fifth Amendment due process right to hire counsel[1] in the expedited removal proceeding and that he was not prejudiced by the government's failure to inform him of the possibility of withdrawal relief. Concluding that his 2012 expedited removal was not fundamentally unfair, we affirm his § 1326 conviction and sentence for illegal reentry. Because the revocation of his supervised release was premised on the § 1326 conviction, we affirm the district court's revocation as well.


         A. The Facts

         On March 7, 2014, at approximately 11:20 p.m., video surveillance along the U.S.-Mexico border spotted two individuals hiding in the brush about one mile north of the border. U.S. Border Patrol agents spent four to five hours tracking fresh footprints, which ultimately led the agents to Rufino Peralta-Sanchez and his companion, who were by that time approximately six miles from the border. A Border Patrol agent conducted a field interview, during which Peralta admitted to being a Mexican citizen without documents permitting him to enter or remain in the United States. The agents gave Peralta a Miranda warning, and Peralta agreed to talk and to waive his right to counsel. In a post-arrest interview, he stated that he was a citizen of Mexico; had no documents allowing him to enter or remain in the United States; had entered the United States illegally on March 7, 2014; had been previously deported from the United States; and had crossed the border from Mexico in order to travel to Fresno, California. Peralta was eventually charged with one count of improper entry by an alien, 8 U.S.C. § 1325, and one count of being a removed alien found in the United States, 8 U.S.C. § 1326. At the time of his arrest, he was still on supervised release for his most recent felony conviction for reentering the United States illegally.

         Peralta first entered the United States in 1979 at the age of twenty. He obtained legal status in 1986 and became a lawful permanent resident (LPR) in December 1990. Between 1990 and 2000, he maintained a relationship with a woman with whom he has three U.S. citizen children. Peralta's criminal history, including a history of immigration offenses, is extensive. In 1982, Peralta was arrested in Bakersfield, California, under the name Gabriel Sanchez for arson, although these charges were eventually dismissed. He was arrested in 1983 under the same name, again for arson. In 1990, he was arrested in Fresno under the name Rufino Peralta-Sanchez for giving a false identification to a peace officer. Between 1990 and 1996, Peralta collected a string of driving under the influence (DUI) convictions: five misdemeanor convictions and a 1996 felony DUI conviction for which he was sentenced to 16 months in prison. As a result of the 1996 felony DUI conviction, the then-Immigration and Naturalization Service (INS) issued Peralta a Notice to Appear, charging him as removable for having been convicted of an aggravated felony "crime of violence." Peralta was ordered removed on June 7, 1999.

         Peralta returned regularly to the United States. In January 2000, he was again convicted of felony DUI, as well as possession of cocaine, for which he was sentenced to 28 months in prison. Following this conviction, Peralta was convicted of misdemeanor illegal reentry. After serving his sentence, Peralta's 1999 removal order was reinstated in December 2001, and he was again removed from the United States. Undeterred, Peralta entered the United States again and was convicted of felony reentry in October 2002, for which he received 30 months in prison. After serving this sentence, his 1999 order of removal was again reinstated in July 2004, and he was again removed from the United States. After another illegal reentry, the 1999 deportation order was again reinstated on May 23, 2012, and Peralta was again removed. Three days later, Peralta was again apprehended by Border Patrol agents one mile north of the border, hiding in the brush with two others.[2] He immediately admitted to being a Mexican citizen with no legal documents to enter the United States and, in a post-arrest interview, admitted that he had entered the United States by walking through the desert with the intent to travel to Los Angeles to find work. On July 17, 2012, Peralta was charged with and convicted of misdemeanor illegal reentry and sentenced to time served. He was ordered removed via expedited removal proceeding and removed on July 18. On July 22, Peralta returned again, was arrested, and in November 2012, was convicted of felony illegal reentry and sentenced to 21 months in prison. He was removed on January 30, 2014, and returned on March 7, 2014, bringing us back to this case, which arises out of Peralta's arrest on March 8, 2014.[3]

         B. The Proceedings

         As a result of his March 2014 arrest, Peralta was charged with improper entry into the United States under 8 U.S.C. § 1325 (count one) and with being a removed alien found in the United States in violation of 8 U.S.C. § 1326 (count two). Peralta moved to dismiss count two, arguing that his underlying 1999 and 2012 removal orders violated due process. Peralta argued that his original 1999 removal was invalid because felony DUI is no longer considered a crime of violence.[4] He also argued that his July 2012 expedited removal was invalid because he was deprived of his purported due process rights to counsel in an expedited removal proceeding and to be informed of his right to seek withdrawal of his application for admission to the United States.

         The district court initially rejected Peralta's argument regarding his 1999 removal and denied the motion to dismiss count two of the indictment. It found that Peralta had suffered no due process violation, and that if he had, he suffered no prejudice because he did not qualify for any discretionary relief. Peralta was convicted on both counts of the indictment following a bench trial. He then filed a motion to reconsider the dismissal of count two. The district court denied the motion. However, in light of our then-recent decision in United States v. Aguilera-Rios, 754 F.3d 1105 (9th Cir. 2014), as amended, 769 F.3d 626, in which we held that intervening higher authority should be retroactively applied in determining whether an alien was deportable as charged, the district court concluded that Aguilera-Rios called into question the validity of the 1999 removal order. Nevertheless, the district court denied the motion to dismiss because Peralta's 2012 expedited removal was valid. Peralta was sentenced to 24 months in prison on the § 1325 charge and 30 months in prison on the § 1326 charge, to run concurrently. He was also sentenced to 10 months in prison, to run consecutively, for violating the conditions of his supervised release from his November 2012 conviction.

         On appeal, Peralta challenges the validity of both the 1999 and 2012 removal orders. We examine only the 2012 expedited removal, as this was the removal order on which the district court ultimately relied in sustaining Peralta's § 1326 conviction. We have jurisdiction under 18 U.S.C. § 3231.


         A. Expedited Removal and Illegal Reentry

         1. Expedited Removal

         Expedited removal proceedings under 8 U.S.C. § 1225 are limited to aliens arriving in the United States, "whether or not at a designated port of arrival"; and aliens "who ha[ve] not been admitted or paroled into the United States" and cannot show that they have been continuously present in the United States for two years "immediately prior to the date of determination of inadmissibility." 8 U.S.C. § 1225(a)(1), (b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(ii).[5] Section 1225 gives the Secretary of Homeland Security[6] "sole and unreviewable discretion" to designate which, if any, aliens described in the latter category-those arriving in the United States who have not been admitted or paroled into the United States and have not been continuously present for the last two years-will be subject to expedited removal. 8 U.S.C. § 1225(b)(1)(A)(iii)(I). By order, the Secretary of Homeland Security has determined to use the expedited removal procedure for those aliens (1) "who are physically present in the U.S. without having been admitted or paroled, " (2) who are found "within 100 air miles of the U.S. international land border, " and (3) who cannot establish that they have been physically present in the United States for the immediately preceding fourteen days. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004).

         If an immigration officer, after conducting an inspection, determines that such an alien does not possess valid entry documents, has presented fraudulent documents, or has made a false claim of U.S. citizenship, "the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (a)(7). When making a finding of inadmissibility, the officer must create a record of the facts and statements made by the alien, read the statement containing these facts to the alien, explain the charges against the alien, and give the alien a chance to respond to the charges in a sworn statement. 8 C.F.R. § 235.3(b)(2)(i). In short, the alien is provided with notice of the charges against him or her and given an opportunity to respond. In contrast to the statutes governing formal removal proceedings under § 1229a or the removal of aggravated felons under § 1228, the statutes and regulations governing expedited removal proceedings do not provide that the alien may be represented by counsel.

         Except in a limited category of cases (not applicable here), an alien who is determined to be inadmissible via § 1225 proceedings is not entitled to administrative or judicial appeal. The Attorney General, however, has discretion to grant withdrawal of the alien's application for admission. 8 U.S.C. § 1225(a)(4); see also id. § 1225(b)(1)(C) (noting that an alien who claims to be an LPR, a refugee, or an asylee may be entitled to appeal). If the Attorney General permits an alien to withdraw his application for admission, the alien must "depart immediately from the United States." Id. § 1225(a)(4).

         2. Illegal Reentry

         Section 1326 punishes an alien who has been "denied admission, excluded, deported, or removed" and later "enters, attempts to enter, or is at any time found in, the United States" without permission. 8 U.S.C. § 1326(a)(1), (2); see United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011). Although an alien has no right to appeal an expedited removal order, "[a] defendant charged under § 1326 has a due process right 'to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.'" United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004)). In order to challenge a criminal charge under § 1326, a defendant must show that: (1) he has exhausted administrative remedies for seeking relief from the underlying order of removal; (2) the deportation proceedings "improperly deprived" him of the opportunity for judicial review; and (3) the removal order was "fundamentally unfair." 8 U.S.C. § 1326(d); Raya-Vaca, 771 F.3d at 1201-02.[7] To show that a removal order was fundamentally unfair, the defendant must demonstrate that the proceeding violated his due process rights and that he suffered prejudice as a result of that violation. Raya-Vaca, 771 F.3d at 1202.

         Where a motion to dismiss a § 1326 charge is based on an alleged due process violation in the underlying removal proceeding, we review the denial of the motion to dismiss de novo. United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006). We review the district court's findings of fact for clear error. Id.

         B. Rights Under the Due Process Clause

         Aliens who "enter" the United States are entitled to some measure of due process under the Due Process Clauses of the Fifth and Fourteenth Amendments before the government acts to deprive them of life, liberty, or property. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) ("[T]he Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976). Here, there does not appear to be any dispute that Peralta effected entry into the United States prior to his 2012 expedited removal when he crossed the border free from "official restraint."[8] We will therefore assume that Peralta is an alien to whom the Due Process Clause applies.

         We have held that an alien facing deportation faces the loss of a liberty interest. An alien, like Peralta, has a right to removal proceedings that conform to the requirements of due process. See Raya-Vaca, 771 F.3d at 1203 & n.6; Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1161 (9th Cir. 2004). However, the fact that aliens are protected by the Due Process Clause does not mean that "all aliens are entitled to enjoy all the advantages of citizenship or . . . that all aliens must be placed in a single homogenous legal classification." Mathews, 426 U.S. at 78. "[T]he class of aliens is itself a heterogenous multitude of persons with a wide-ranging variety of ties to this country." Id. at 78-79.

         * * *

         The question we must ask in this case is: To what process-statutory and constitutional-was Peralta entitled?


         Due process requires, at a minimum, notice and an opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The regulations governing expedited removal proceedings require an alien to be given notice and an opportunity to respond to the charge of inadmissibility. 8 C.F.R. § 235.3(b)(2)(i). Peralta does not dispute that the government complied with these regulations. He argues, however, that because he was caught a mile inside the U.S. border-as opposed to being arrested at an official port of entry-he is entitled to more than just notice and an opportunity to respond. As we have noted previously, "[a]liens who have entered the country are thus distinct from aliens at a port of entry, over whom Congress has plenary power and for whom the process prescribed by Congress constitutes due process." Raya-Vaca, 771 F.3d at 1203 n.5 (citation omitted). Peralta argues that he suffered two due process violations: first, that he was not advised of his right to obtain counsel; and second, that he was not notified that he might be entitled to withdraw his application for admission to the United States. We address each argument in turn.

         A. Right to Obtain Counsel

         "The right to counsel in immigration proceedings is rooted in the Due Process Clause . . . ." Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). "Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings." Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). We have never addressed, however, whether due process requires that an alien be offered the opportunity to secure counsel in the context of an expedited removal under § 1225.[9]

         There are two questions to be answered on this issue. The first is whether Peralta had a statutory right to counsel at no expense to the government. If so, due process may require that he be notified of that right, as we have held in other cases in which the applicable statute or regulation provided that the alien may be represented by counsel. See, e.g., United States v. Reyes-Bonilla, 671 F.3d 1036, 1045-46 (9th Cir. 2012) (finding that an alien was denied due process where he was not properly advised of his statutory right to counsel in a § 1228 proceeding). If Peralta has no statutory right, then the second question is whether the Due Process Clause of the Fifth Amendment independently gives Peralta the right to obtain counsel at no expense to the government.

         1. Statutory right to counsel

         Congress has provided that aliens may be represented by counsel in certain proceedings. For example, 8 U.S.C. § 1362 provides that "[i]n any removal proceedings before an immigration judge . . . the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose." Similarly, § 1228, which governs expedited removal of aggravated felons, and § 1229a, which governs formal removal proceedings, provide that an alien has the right to representation at no expense to the government. See 8 U.S.C. §§ 1228(b)(4)(B), 1229a(b)(4)(A). None of these provisions applies to Peralta. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (alteration in original) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). Consistent with this rule of construction, the federal regulations governing removal proceedings provide that "[e]xcept in the case of an alien subject to the expedited removal provisions of section 235(b)(1)(A) of the Act [, located at 8 U.S.C. § 1225(b)(1)(A), ]" an alien must be provided with notice of the right to be represented at no expense to the government. 8 C.F.R. § 287.3; see Barajas-Alvarado, 655 F.3d at 1088 (noting that expedited removal proceedings do not provide a right to counsel). Peralta will have to look elsewhere for a statutory right to counsel.

         Peralta argues that he has a general right to be represented by counsel of his choice under the Administrative Procedure Act (APA). Section 555 of the APA provides that "[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative" and that "[a] party is entitled to appear in person or by or with counsel or other qualified representative in an agency proceeding." 5 U.S.C. § 555(b). Peralta has not referred us to any law or case indicating that this provision extends the right to counsel to immigration proceedings.

         This failure is not surprising because the Supreme Court has long held that deportation proceedings are not governed by the APA. See Ardestani v. INS, 502 U.S. 129, 133 (1991); Marcello v. Bonds, 349 U.S. 302, 310 (1955). In Wong Yang Sung v. McGrath, 339 U.S. 33, 53 (1950), the Court held that the APA applied to deportation proceedings conducted under the Immigration Act of 1917. In Marcello, the Court revisited its decision in Wong Yang Sung in light of the new Immigration and Nationality Act of 1952. Marcello, 349 U.S. at 306-07. The Marcello Court concluded, however, that the procedures set up by the Immigration and Nationality Act (INA) superseded the procedures provided for by the APA. Id. at 308-10. The Court wrote that "it is clear that Congress was setting up a specialized administrative procedure applicable to deportation hearings, drawing liberally on the analogous provisions of the Administrative Procedure Act and adapting them to the particular needs of the deportation process." Id. at 308. Congress used the APA "only as a model, and when . . . there was a departure from the Administrative Procedure Act-based on novel features in the deportation process-surely it was the intention of the Congress to have the deviation apply and not the general model." Id. at 309. The Court reaffirmed Marcello in Ardestani, noting that

Marcello does not hold simply that deportation proceedings are subject to the APA except for specific deviations sanctioned by the INA. Rather, Marcello rests in large part on the statute's prescription that the INA "shall be the sole and exclusive procedure for determining the deportability of an alien under this section."

Ardestani, 502 U.S. at 134 (emphases in original) (quoting Immigration and Naturalization Act of 1952 § 242(b) (codified as amended at 8 U.S.C. § 1229a(a)(3))).

         Peralta points out that the Supreme Court has applied the APA to the BIA. See, e.g., Judulang v. Holder, 132 S.Ct. 476, 483-84 (2011). But Judulang did nothing more than apply the "analytic framework" of the judicial review provisions-the "standard 'arbitrary [or] capricious' review"-of § 706 of the APA. See id. at 483 n.7 (alteration in original). This is in no way inconsistent with the Court's approach in Marcello and Ardestani. "[Section] 706 of the APA functions as a default judicial review standard." Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000); see Bowen v. Massachusetts, 487 U.S. 879, 903-04 (1988); Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967). There is nothing novel here: Congress displaced the ...

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