involving him in community activities and that an immigration
judge would be unlikely to see through this, and her rather speculative
hypothesis that a psychologist could develop testimony that would assist
in Adame-Salgado's application. But even after discounting Sfasciotti's
testimony in this regard, the Court found it persuasive. The mitigating
factors noted by Sfasciotti — primarily the fact that he had lived
in the United States since he was a toddler, nearly his entire family was
here, and his offenses were committed at a young age — put
Adame-Salgado in a relatively favorable position in seeking § 212(c)
relief. His underlying offenses were no doubt serious, but all aggravated
felony deportees who petition for such relief have committed serious
felony offenses, yet according to the Supreme Court a "substantial
percentage" of such applications have been granted. See St. Cyr. 121
S.Ct. at 2276-77. The Court finds that Adame-Salgado would have stood a
reasonable chance of obtaining § 212(c) relief if his application
had been considered on its merits.
We therefore return to the question noted earlier: whether
Mendoza-Lopez or principles of due process require permitting a person
charged under § 1326 to attack the predicate deportation order
collaterally based on the immigration judge's failure to advise him of
his right to petition for § 212(c) relief. In Mendoza-Lopez, the
Court noted that the immigration judge had failed to advise the aliens of
their "eligibility to apply for suspension of deportation."
Mendoza-Lopez, 481 U.S. at 840. But the Court did not rely on that fact
in concluding that the aliens in that case had been prejudiced (an issue
that was not a matter of dispute in any event, see id.); rather it held
that "[b]ecause the waivers of their rights to appeal were not considered
or intelligent, respondents were deprived of judicial review of their
deportation proceeding." Id. (emphasis added). It is clear that it was
the absence of judicial review, not administrative relief, that rendered
infirm the indictments in Mendoza-Lopez. Nor is Espinoza-Falco
determinative of this point, as we have previously discussed.
Some courts, primarily the Ninth Circuit, have concluded that an
immigration judge's failure to advise an alien of his right to seek
administrative relief from deportation constitutes a denial of due
process that invalidates the deportation proceeding and renders it an
improper predicate for a § 1326 prosecution, at least so long as the
alien had a reasonable possibility of obtaining relief. See, e.g., United
States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000); United States v.
Arce-Hernandez, 163 F.3d 559, 563-64 (9th Cir. 1998); United States v.
Aguirre-Tello, 181 F. Supp.2d 1298, 1302 (D.N.M. 2002); Diaz-Nin, 2002 WL
334918, at *425 (deportation of alien whose request for relief under
§ 212(c) was improperly dismissed could not be used as predicate for
§ 1326 prosecution). The First Circuit and at least one other court
have reached the opposite conclusion. United States v.
Vieria-Candelario, 6 F.3d 12. 15 (1st Cir. 1993); United States v.
Suazo-Martinez, No. GRIM. DKC 2000-0371, 2000 WL 1876591, at *4 (D. Md.
Dec. 20, 2000).
This Court believes that the First Circuit has the better of the
dispute. In permitting collateral attacks on deportation orders,
Mendoza-Lopez, as we have noted, relied on a series of decisions that
required some form of judicial review before an administrative
determination could be used as the basis for a later criminal sanction.
Mendoza-Lopez, 481 U.S. at 838. There is no support in the Supreme
Court's cases for the proposition that an administrative agency's failure
to tell an individual about the possibility of administrative
relief— or indeed, the
unavailability of administrative relief to
begin with — leads to a similar conclusion. The primary decision
upon which the Court relied in Mendoza-Lopez — Estep v. United
States. 327 U.S. 114 (1946) — was predicated on the Court's
unwillingness to accept the proposition that "Congress intended that
criminal sanctions were to be applied to orders issued by [administrative
agencies] no matter how flagrantly they violated the rules and
regulations which define their jurisdiction." Id. at 121. That
principle, and the Court's formulation of the applicable rule in
Mendoza-Lopez. indicates that its willingness to permit collateral
attacks of administrative orders is limited to those which were not
reviewed, or were not reviewable, in the courts for compliance with the
governing standards as well as constitutional requirements. By contrast,
an alien's ability to obtain § 212(c) relief was a matter of
sovereign grace — the rough equivalent of an executive pardon of a
person convicted of a crime — not a matter of right.
For these reasons, the Court concludes that the immigration judge's
failure to advise Adame-Salgado of the possibility of a § 212(c)
application did not deprive Adame-Salgado of any right of judicial review
or of due process, and it does not preclude the use of his deportation as
the basis for the § 1326 charge.
For the foregoing reasons, the Court denies defendant's motion to
dismiss the indictment.