United States v. Jose Luis Mendoza-Lopez, 7 F.3d 1483, 10th Cir. (1993)
United States v. Jose Luis Mendoza-Lopez, 7 F.3d 1483, 10th Cir. (1993)
United States v. Jose Luis Mendoza-Lopez, 7 F.3d 1483, 10th Cir. (1993)
3d 1483
Mr. Mendoza has apparently been a legal permanent resident of the United
States since his arrival in this country at the age of eight months. He received
an alien registration card when he was fourteen. Despite his legal status, and
apparently in reliance upon the advice of other detainees, Mr. Mendoza
deliberately concealed this important information from the Immigration Law
Judge at each deportation hearing. At each hearing, the ILJ specifically
informed Mr. Mendoza individually and as part of the group of the need to
disclose any defense to the deportation proceedings, including the existence of
any immigration papers, or any belief that he had a legal right to be in the
United States. In response to the ILJ's questions on these points, Mr. Mendoza
replied both individually and as a member of the group that he had never
received any immigration papers and had no legal right to be in the United
States. Mr. Mendoza further stated, again untruthfully, that the only family he
had in the United States were some cousins. At trial, Mr. Mendoza testified that
these misstatements were the result of his desire to be quickly deported so that
he would be released from the allegedly "horrible" conditions at the detention
center as quickly as possible.
4
The ILJ also clearly informed the detainees at each hearing of their right to
appeal if they thought that his decision was incorrect, and told them that he
would assist them in filing the appropriate paperwork to do so. The ILJ
indicated that any appeal would not be immediate, and that any detainee would
be able to stay at the detention center pending the appeal. The ILJ requested
anyone who wished to appeal to stand; nobody did.
On appeal, Mr. Mendoza raises two constitutional claims attacking the validity
of the deportation hearings. Mr. Mendoza argues that the two deportation
hearings violated his constitutional right to due process because the ILJ failed
to inform him of his apparent eligibility for a waiver of deportation under 8
U.S.C. 1182(c). Mr. Mendoza also argues that his waiver of his right to
appeal the ILJ's decision was not knowing and voluntary.1 Mr. Mendoza thus
argues that neither deportation can form the basis for his conviction under
1326.
The ILJ's duty to inform an alien of his apparent eligibility for discretionary
relief from deportation is triggered only after the alien has provided
information sufficient to support such a duty. The ILJ is not required to engage
in hypothesizing as to what theories, if any, might be available to find an alien
eligible for discretionary relief. Id. at 468. Moreover, the ILJ repeatedly gave
Mr. Mendoza the opportunity to notify him of his claim to permanent resident
status, which opportunity was dependent upon information unequivocally
within Mr. Mendoza's knowledge at the time. Under these circumstances, we
cannot hold that the ILJ failed in his duty to inform Mr. Mendoza of his
apparent eligibility for relief. Nor can we conclude that Mr. Mendoza was
prejudiced by any allegedly improper actions of the INS. Any prejudice Mr.
Mendoza may have suffered was the result of his willful misstatements to the
ILJ. Accordingly, we hold that Mr. Mendoza's claims cannot be upheld under
the fundamental unfairness standard.
Nor can we conclude that the ILJ's use of a mass waiver by silence
unconstitutionally denied Mr. Mendoza his right to judicial review of the
deportation decision. The Ninth Circuit has found such waivers to violate due
process where they "made it impossible to determine whether [the defendant]
made a voluntary and intelligent decision" to waive his right to appeal. United
States v. Lopez-Vasquez, 985 F.2d 1017, 1020 (9th Cir.1993), as amended, 1
F.3d 751 (1993).
10
In this case, we hold that it is not impossible to determine whether the waiver
was intelligently and voluntarily made. We conclude that Mr. Mendoza's
decision to waive his right to appeal was the voluntary and intelligent result of
his asserted desire to be released from the detention center as soon as possible.
Accordingly, we hold that the deportation proceeding did not improperly deny
Mr. Mendoza his right to judicial review of the deportation order.
11
Finally, Mr. Mendoza urges this court to remand the matter to the district court
for clarification on the sentencing decision. Mr. Mendoza claims that the record
is unclear as to whether the district court decided not to depart from the
Guidelines on the merits, or whether the court believed that it lacked the
Where a district court in the exercise of its discretion decides not to depart from
the Federal Sentencing Guidelines, an appellate court lacks jurisdiction to
review that discretionary decision. United States v. Fox, 930 F.2d 820, 824
(10th Cir.1991). However, where the district court decides that it lacks the
discretion to depart from the Guidelines, we review that decision de novo.
United States v. Spedalieri, 910 F.2d 707, 710 (10th Cir.1990). If the district
court's ruling is unclear as to whether the court believed it had the discretion to
depart, we must remand for clarification. See United States v. Lowden, 900
F.2d 213, 217-18 (10th Cir.), cert. denied, 498 U.S. 876, 111 S.Ct. 206, 112
L.Ed.2d 166 (1990). On the record before us, we do not believe remand to be
necessary.
13
Mr. Mendoza raised three grounds for a downward departure: his efforts at
drug rehabilitation; his "extraordinary" family circumstances; and the "unduly
harsh consequences" of imprisonment for deportable aliens. At the sentencing
hearing, counsel for Mr. Mendoza restated these reasons for requesting a
departure. The district court responded as follows: "I would inform you that I
see no grounds in this case for a downward departure.... I can't abide [the]
request [for a departure]." (R.Vol. IV at 6-7.) The court then remarked upon the
defendant's prior criminal history, history of drug abuse, and previous
deportations, concluding that in light of these facts, "[t]he sentence imposed
will reflect the sentencing goals of punishment, deterrents [sic] and protection
of the public." Id. at 7-8. Taken as a whole, we believe that these statements
indicate that the district court considered Mr. Mendoza's arguments on the
merits, and did not refuse to grant the departure in the belief that it had no
authority to do so. We therefore have no jurisdiction to review the district
court's exercise of its discretion in denying a downward departure.
14
15
16
With respect to the third ground for departure urged upon the court, the "unduly
harsh consequences of imprisonment for deportable aliens," we note that after
the submission of briefs in this matter, the Second Circuit vacated and
remanded the sole decision Mr. Mendoza relied upon as grounds for a
downward departure. United States v. Restrepo, 999 F.2d 640 (2d Cir.1993).
We agree with the well-reasoned decision of the Second Circuit. Accordingly,
even if we were to conclude that the district court's decision on this ground was
ambiguous, we would hold that there is no cause for remand.
17
We therefore deny Mr. Mendoza's request for remand and clarification. The
district court's decision is AFFIRMED.
Mr. Mendoza also argues that he did not make a considered waiver of his right
to appeal because he was unaware of his possible eligibility for a waiver of
deportation. In light of our holding on the due process claims, this theory is
without merit
Mr. Mendoza claims for the first time on appeal that the INS lacked a prima
facie case for Mr. Mendoza's deportation hearing. We do not address this issue,
which was not considered and ruled on by the district court. See Farmers Ins.
Co. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989). Accordingly, Mr.
Mendoza's claims that he was coerced into admitting his alienage by the
allegedly improper deportation charges must also fail