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Media Alerts - U.S. v. Zamudio - Ninth Circuit
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March 4, 2015
  U.S. v. Zamudio - Ninth Circuit
Headline: Only one felony conviction supporting removal is needed to support deportation

Area of Law: Criminal law; Criminal Procedure; Immigration Law

Issue Presented: What is required to successfully collaterally attack deportation proceedings underlying a conviction for illegally re-entering the US

Brief Summary: Defendant was convicted of two felonies supporting deportation; one for kidnapping in 1994 and one for possession of methamphetamine in 2000. After the 2000 conviction Defendant was deported. After being deported Defendant re-entered the US and presented his now void legal permanent resident card to get past the border checkpoint. Defendant later found in the US by INS agents and arrested for violation of 8 U.S.C. ยง 1326 (being a deported alien "found in" the US after reentering without permission).

Defendant appealed his conviction on the basis that he was not advised that he could challenge the removal proceedings, that had ineffective assistance of counsel, that he was prejudiced by the lack of a constructive knowledge jury instruction, and that he had met his burden of proving a statute of limitations defense and as such a motion for acquittal should have been granted.

The 9th Circuit rejected all of Defendant's claims. They found that even had Defendant challenged his removal proceedings, this would have only have fixed one of the two underlying felonies and would still have left him eligible for deportation. Furthermore, Defendant's defense attorney made all the arguments he could reasonably have been expected to make given the law at the time. The panel also reasoned that given Defendant's successful efforts to prevent border agents from learning he was not allowed to reenter the US there was no justification for imputing constructive knowledge of his illegal status. Since the statute of limitations tolls if defendants use false travel documents to gain readmission, defendant could not have met the burden to put on a statute of limitations defense here.

For these reasons, the panel affirmed Defendant's conviction.

Extended Summary: Defendant, Zamudio, was born in Mexico and eventually came to the United States where he married a US citizen and became a legal permanent resident. In Defendant was convicted of kidnapping and was sentenced to three years in prison. In 2000, Defendant was convicted of felony possession of methamphetamine and served 100 days in jail. After completing his second sentence, Defendant was informed by the US Immigration and Naturalization Service (INS) that he was removable due to both his 1994 and 2000 convictions. At that time Defendant retained an attorney to represent him and a removal hearing followed.

Defendant was present at the removal hearing, along with a Spanish interpreter; Defendant's attorney was not physically present at the hearing but participated in the hearing by telephone. Defendant's attorney admitted that Defendant had no claim to US citizenship, that Defendant was convicted for possession of methamphetamine in 2000 and kidnapping in 1994. Defendant's attorney further admitted that each conviction made Defendant subject to deportation and that no relief was available. The immigration judge then ordered Defendant to be removed to Mexico.

Defendant later travelled with his then current wife from Mexico back into California. To accomplish this Defendant had his wife bring his now-void legal permanent resident card and had her drive to a US port of entry, both of which were given to the border agent. After examining the documents provided t, the agent allowed Defendant's vehicle to pass.

A few years later, in 2012, Defendant was again in jail and came to the attention of INS agents. Defendant was quickly indicted for that offense. Defendant brought a motion to dismiss the indictment based on two main points: 1) that the immigration judge failed to advise Defendant that he could apply for relief from removal; and (2) that Defendant's attorney provided ineffective assistance of counsel when he conceded that Defendant's drug problem was for cocaine. The motion to dismiss was denied; the court reasoned that 1) Defendant was removable under the 1994 kidnapping conviction given that it was a crime of violence, and (2) that the 2000 conviction was also a removable offense since it was for possession of methamphetamine. Additionally, the court concluded that even had Defendant been granted relief from removal in 1994, that would only have made Defendant ineligible for relief from removal of the 2000 conviction.

The case went to trial and the jury was unable to reach a verdict. Defendant claimed that the statute of limitations had begun to run in 2001 when he presented his ID card to a border agent and as such had already expired. However, the court denied this motion since the statute of limitations tolls if a defendant gains readmission to the US by providing false travel documents. Based on these findings, the court found Defendant guilty and he was sentenced to 37 months in prison Defendant appeals on the grounds that the district court erred by: (1) denying Defendant's motion to dismiss due to underlying deportation proceedings; (2) omitting a jury instruction on constructive knowledge; and (3) denying Defendant's motion for acquittal at the close of evidence.

The 9th Circuit ("the panel") reviewed de novo the district court's denial of a motion to dismiss an indictment. Reviewing the underlying deportation proceedings, the panel held Defendant failed to successfully attack the proceedings. In order to successfully challenge the validity of the underlying deportation order, the Defendant must show that (1) he exhausted any available administrative remedies for relief against the order; (2) the deportation proceedings denied him the opportunity for judicial review; and (3) the entry of the order was "fundamentally unfair." The order is "fundamentally unfair" only if Defendant shows both that his due process rights were violated and that he was prejudiced as a result.

Here, both of Defendant's convictions made him removable. The fact that his attorney admitted that Defendant's 2000 conviction was for methamphetamine only served to relieve the government from any obligation of presenting evidence on the facts surrounding the drug offense. Even if the immigration judge then erred by failing to advise Defendant that he could apply for relief from removal, Defendant was not prejudiced here since obtaining relief for the 1994 conviction would have made him ineligible for the same relief in 2000. In other words, even if Defendant had obtained relief in 1994 he would still have been removable after his 2000 conviction.

While Defendant also claimed that he was ineffectively assisted by counsel, the standard for such claims under the Fifth Amendment in immigration cases is higher than the Sixth Amendment standard set forth in other caselaw. Here, the panel found that Defendant failed to meet even the lesser Sixth Amendment standard and as such would necessarily fail the Sixth Amendment requirements. Defendant's counsel could not have been expected to make legal arguments that had yet to be established at the time of Defendant's removal proceeding. Additionally, Defendant failed to demonstrate prejudice here since he fails to allege that the admission by his attorney was factually inaccurate here. Given this, the panel held that Defendant's counsel did not perform below an objective standard of reasonableness here.

The panel next turned to Defendant's challenge of the jury instructions given. The instructions were reviewed de novo for their accuracy and for abuse of discretion as to their formulation. The statute of limitations begins to run when an alien is discovered and identified by the immigration authorities. This rule is justified by the fact that states do not wish to reward deception by allowing such deception to toll the statute of limitations. Here the only facts available to the border patrol agents was that they were presented with a seemingly valid travel document and even the exercise of due diligence would not have allowed the agents to discover that Defendant's entry was illegal. As such, the panel declined to allow Defendant's status to be imputed through constructive knowledge.

Lastly, the panel rejected Defendant's argument that no reasonable jury could have found he failed to meet his burden of proving his statute of limitations defense and as such that his motion for acquittal should have been granted. Given the panel's above analysis regarding the statute of limitations defense, the panel found this final argument unpersuasive.

For the reasons listed above, the 9th Circuit affirmed the Defendant's conviction for being found in the US after reentering without permission.

Panel: Judges Wallace, Schroeder, and Owens

Date of Issued Opinion: January 14, 2015

For the Full Opinion:

Docket Number: 3:12-cr-00532-WHA-1

Decided: Affirmed

Case Alert Author: Seth DuMouchel

Author of Opinion: Judge Wallace

Case Alert Circuit Supervisor: Professor Ryan T. Williams

Edited: 03/06/2015 at 02:13 PM by Ryan Williams

    Posted By: Ryan Williams @ 03/04/2015 01:30 PM     9th Circuit  

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