United States v. Abrams

Opinion

USCA1 Opinion

May 18, 1995
                                [Not for Publication]
                                [Not for Publication]
                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 94-1694

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  WINSTON A. ABRAMS,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                        John R. Gibson,* Senior Circuit Judge,
                                         ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Gordon D. Fox with  whom David A. Cooper and Cooper & Sanchez were
            _____________            _______________     ________________
        on brief for appellant.
            Margaret E.  Curran, Assistant United  States Attorney, with  whom
            ___________________
        Ira Belkin, Assistant United  States Attorney, and Sheldon Whitehouse,
        __________                                         __________________
        United States Attorney, were on brief for appellee.

                                 ____________________

____________________
        _____________________
        *Of the Eighth Circuit, sitting by designation.



STAHL, Circuit Judge.   Defendant-appellant Winston
                      STAHL, Circuit Judge.
                             _____________

            Abrams appeals  the  denial  of  his  motion  to  dismiss  an

            indictment charging illegal reentry of a deported alien under

            8 U.S.C.   1326(b)(1).1  We affirm.

                                          I.
                                          I.
                                          __

                          FACTUAL AND PROCEDURAL BACKGROUND
                          FACTUAL AND PROCEDURAL BACKGROUND
                          _________________________________

                      Abrams,  a citizen  of Guyana,  entered the  United

            States in February 1981  on a six-month tourist visa.   After

            the  visa expired, he remained in the United States and, over

            the  next  five  years,  was  convicted  of  several  crimes,

            including robbery.   During  this period, Abrams,  who speaks

            and reads English, briefly attended college.  In 1986, Abrams

            filed  for an adjustment of status seeking to become a lawful

            permanent resident.   By decision dated January  7, 1987, the

            Immigration and Naturalization  Service (INS) denied Abrams's

            petition, but permitted him to leave the country voluntarily,

            thus avoiding deportation proceedings.  

                      Notwithstanding this concession,  Abrams chose  not

            to  leave.  In July 1987, Abrams  and Andrea Gardner, whom he

            never married,  had a son who is a United States citizen.  In

                                
            ____________________

            1.  In pertinent part,   1326 provides that any alien who has
            been  arrested and  deported  and later  reenters the  United
            States without the Attorney  General's consent shall be fined
            or imprisoned, or both.  8  U.S.C.   1326(a).  An alien whose
            deportation "was subsequent to a conviction for commission of
            three  or more misdemeanors  involving drugs,  crimes against
            the  person, or both, or  a felony (other  than an aggravated
            felony),"  shall be  fined or  imprisoned  not more  than ten
            years, or both.  8 U.S.C.   1326(b)(1).

                                         -2-
                                          2



October 1988, a  New York state  court convicted Abrams2  for

            criminal  possession  of  a  weapon,  criminal possession  of

            stolen property,  and bail jumping.   In October  1989, while

            incarcerated in New York  state prison, Abrams married Angela

            Morgan, a United States citizen, with whom he had been living

            prior  to  the 1988  conviction.   On  March 13,  1990, while

            Abrams was  still in  prison, the INS  instituted deportation

            proceedings against him.3 

                      Two   deportation  hearings,   both  held   at  the

            Downstate   Correctional  Facility  in  Fishkill,  New  York,

            followed.  Because  the events at these hearings  are central

            to this appeal, we recount them in some detail.  At the first

            hearing, held  May 22, 1990 ("May  hearing"), the immigration

            judge advised Abrams as follows:

                      All   right,   Mr.   Abrams,    at   this
                      proceeding,  you  have  the  right  to be
                      represented  by an  attorney at  your own
                      expense.   If you cannot afford  a lawyer
                      or obtain a lawyer, you should have been,
                      ah, presented  with a list of  free legal
                      services, as well as your appeal rights.

____________________

            2.  The state  indictment named the defendant  as Perry Gaul,
            an alias used by Abrams.

            3.  The Order to Show Cause and Notice of Hearing charged two
            grounds for  deportation: (1) remaining in  the United States
            for  a longer  time than  permitted following admission  as a
            non-immigrant  in violation of what now appears at 8 U.S.C.  
            1251(a)(1)(B), and  (2)  conviction of  two crimes  involving
            "moral turpitude  not  arising  out  of a  single  scheme  of
            criminal   misconduct"   in   violation   of   8   U.S.C.    
            1251(a)(2)(4)(ii).

                                         -3-
                                          3



At some point during  the hearing, Abrams was given

            the  notice of  his appeal  rights.4   Abrams  then indicated

            that  he wished  to retain  counsel.   The immigration  judge

            continued:

                      The list  I gave you  sir, if you  have a
                      problem getting a lawyer, you can try and
                      get someone on that list to represent you
                      and  it has your  appeal rights included,
                      just   in  case  you  have  to  represent
                      yourself.

                      The immigration  judge advised Abrams of the nature

            of  the charges  against him,  and Abrams  indicated that  he

            understood.   The  judge  then asked  Abrams  whether he  was

            married, to which Abrams answered in the affirmative.  Abrams

            also told the judge  that he had  a three-year-old son.   The

            judge then stated:

                      [T]here may be some relief that you might
                      be able to apply for, but I would suggest
                      you  have your lawyer  here, or otherwise
                      we may  be  compelled to  go ahead,  even
                      though you're unrepresented.

                      The  hearing  was  continued until  July  10,  1990

            ("July  continuance").   Unable  to  retain  private counsel,

            Abrams  obtained --  on the  date of  the continuance  -- the

                                
            ____________________

            4.  Abrams  later  testified that  he  received  a form  that
            appeared to  be similar to INS  form I-618.  Form  I-618 is a
            one-page  document explaining  procedures to  appeal from  an
            immigration judge's decision.  The notice is captioned: 

                           WRITTEN NOTICE OF APPEAL RIGHTS
                                  Your Appeal Rights
                              Read This Notice Carefully
                              __________________________

            (emphasis in original).

                                         -4-
                                          4



services of Attorney Lindsey  Collins, whose name appeared on

            the free legal services list.  Abrams and Collins met for ten

            to fifteen minutes prior  to the hearing.  After  the hearing

            commenced,  Abrams acknowledged that Collins was representing

            him.   During a colloquy between Abrams and the judge, Abrams

            admitted  that:   (1)  he was  a citizen  of Guyana;  (2) had

            entered  the country  on a  six-month tourist  visa;  (3) had

            remained in the United States  without permission of the  INS

            after the  agency permitted him to leave voluntarily; and (4)

            a  New York  state  court had  convicted  him on  charges  of

            criminal  possession of  a  weapon and  possession of  stolen

            property.

                      The immigration judge then said to Abrams:

                      [D]o  you understand,  based on  what you
                      have told me, based on what your attorney
                      has  told  me  and  based on  the  record
                      presented,  it  appears   that  you   are
                      deportable from the United States for the
                      reasons that I have  indicated.  And, ah,
                      since you are not seeking any application
                      for relief, I would have no choice but to
                      enter   an   order  ordering   you  [sic]
                      deportation from the  United States  back
                      to Guyana.  Do you understand that sir?

            Abrams responded,  "yes."   The immigration  judge addressing

            Attorney  Collins  asked, "Mr.  Collins,  on  behalf of  your

            client, are you willing to accept  such a decision as a final

            decision?"  Collins responded, "I do, I do your  Honor."  The

            deportation  order issued on July  10, 1990.   Abrams did not

            appeal the order, nor did he request an adjustment in status.

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                                          5



On  April 3,  1992,  Abrams was  deported from  the

            United States.  Subsequently,  he reentered the United States

            without permission.  On  August 31, 1993, he was  arrested by

            East Providence,  Rhode Island,  police  for obstruction  and

            filing a false report, crimes for which he was convicted.  

                      The indictment  in this case  then issued.   On the

            day of jury impanelment, Abrams filed a motion to dismiss the

            indictment  on  the  basis  that   the  original  deportation

            proceeding was  fundamentally unfair because he  did not know

            he  had a right of appeal or alternative relief.  On February

            1,  1994, the district  court held an  evidentiary hearing on

            the motion  at which  Abrams testified.   Abrams acknowledged

            the receipt  of a form dealing  with appeal rights.   He also

            acknowledged that,  at the time he  had the form, he  knew it

            dealt with  his appeal rights.  He  testified that he had the

            form in his possession for several hours, but he said that he

            lost  it  during  his  transport from  Fishkill  back  to the

            Clinton  Correctional  Facility  where  he  was  serving  his

            sentence.  He  further testified  that he made  no effort  to

            obtain  a  new  copy.    Abrams  also  acknowledged  that  he

            understood  what the  immigration judge  meant when  he asked

            whether Abrams  accepted the  decision as final  and Attorney

            Collins answered that he did.  The day following the hearing,

            the  district  court  determined  that  Abrams  "was   fairly

            apprised  of  his  right  to  appeal .  .  .  [and]  that  he

-6-
                                          6



understood that he had the right to appeal."   On that basis,

            the  district   court  denied  his  motion   to  dismiss  the

            indictment.  

                      On March 3, 1994, Abrams entered into a conditional

            plea agreement  with the  government, reserving his  right to

            appeal the district court's denial of his motion  to dismiss.

            Entry of plea and sentencing followed.

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      In a prosecution brought under 8 U.S.C.   1326, the

            government must  prove  that  the  defendant  was  previously

            deported.   See 8 U.S.C.    1326(a)(1).  In  United States v.
                        ___                              _____________

            Mendoza-Lopez, 481  U.S. 828  (1987), the Supreme  Court made
            _____________

            clear  that due  process requires  that before  a deportation

            order  may be used in a  subsequent criminal proceeding, that

            order   must   have   been   subject   to  judicial   review.

            Specifically, the Court stated that "where the  defects in an

            administrative proceeding  foreclose judicial review  of that

            proceeding, an alternative means of obtaining judicial review

            must be made available before the administrative order may be

            used  to establish  conclusively an  element of  the criminal

            offense."  Id. at 839.  In Mendoza-Lopez, the aliens were, in
                       ___             _____________

            effect,  denied  a  direct  appeal because  they  were  given

            inadequate notice  of the right  to appeal.   The  government

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                                          7



asked the Court to  "assume that the respondents' deportation

            hearing was fundamentally unfair."  Id.  
                                                ___

                      We  conclude Abrams's  collateral attack  must fail

            because  he  cannot  show that  there  were  "defects  . .  .

            foreclos[ing] judicial review," that  is, there was no denial

            of his right  to appeal.5    Abrams's  principal argument  is

            that  he  was  not  advised  of  his  right  to  appeal  and,

            consequently, there could be no  "considered and intelligent"

            waiver  that right.6  We  do not agree.   Abrams acknowledges

            receiving the written notice of appeal  rights during the May

____________________

            5.  We   note  that   our  sister  circuits   have  uniformly
            interpreted Mendoza-Lopez to require a showing that defendant
                        _____________
            was both denied his right to appeal the deportation order and
            that he was actually  prejudiced by fundamental unfairness in
            the  underlying  proceeding.   See,  e.g.,  United States  v.
                                           ___   ____   _____________
            Espinoza-Farlo, 34 F.3d 469,  471 (7th Cir. 1994) (collecting
            ______________
            cases).  See also United States v. Fares, 978 F.2d 52, 57 (2d
                     ___ ____ _____________    _____
            Cir. 1992)  ("If we find  no fundamental  unfairness, and  we
            therefore  conclude that  a  fully informed  exercise of  the
            right of direct appeal would have yielded the alien no relief
            from  deportation,  the  deportation  order may  be  used  to
            establish conclusively  an element  of a  criminal offense.")
            (citing cases).  Because  Abrams fails on the first  step, we
            need not consider prejudice.

            6.  To help put  this case in  perspective, we reiterate  two
            important  points.   First, deportation  proceedings  are not
            criminal  actions.  United States  v. Bodre, 948  F.2d 28, 31
                                _____________     _____
            (1st  Cir. 1991),  cert.  denied, 503  U.S.  941 (1992).    A
                               _____  ______
            deportation proceeding is a  purely civil action to determine
            eligibility to  remain  in this  country, and  not to  punish
            unlawful entry.   INS v. Lopez-Mendoza,  468 U.S. 1032,  1038
                              ___    _____________
            (1984).    Accordingly, many  of  the  procedural protections
            required in criminal proceedings simply  do not apply in this
            context.    See,  e.g., id.  at  1038-39.    Second, as  with
                        ___   ____  ___
            criminal proceedings,  see, e.g.,  Jones v. Barnes,  463 U.S.
                                   ___  ____   _____    ______
            745, 751 (1983),  there is no constitutional right  to appeal
            an adverse deportation order.  The right is purely statutory.

                                         -8-
                                          8



hearing and, as required  by applicable INS regulations,7 the

            immigration  judge  ascertained  that  Abrams  had, in  fact,

            received the notice.8   Abrams, an English  speaker with some

            college education, further acknowledges having the notice for

            several hours before misplacing it.  

                      Abrams,  however, focuses  on the  tail end  of the

            colloquy between  the immigration judge and  Attorney Collins

            during the July continuance at  which point the judge  asked:

            "[O]n behalf of your client, are you willing to accept such a

            [deportation order] as a final decision?"  Collins responded:

            "I do, I do your Honor."  Abrams contrasts that exchange with

            the facts in United States v. Fares, 978 F.2d 52, 56 (2d Cir.
                         _____________    _____

            1992).  In Fares, the immigration judge asked the  defendant:
                       _____

            "And  you're accepting  orders of  deportation to  Lebanon as

            final in your  case with no appeal?"   Id. at 57.   The Fares
                                                   ___              _____

            court concluded that, although it was a "close question," the

            quoted statement  alone was an insufficient  basis upon which

            to  conclude  that  the defendant  had  waived  his  right to

            appeal.  Id.  at 56-57.   Importantly however, unlike  Fares,
                     ___

            Abrams received written notice of the right to appeal.   

____________________

            7.  8 C.F.R.   242.16 requires, in part, that the immigration
            judge "shall . .  . advise respondent of the  availability of
            free legal services . . . [and] ascertain that the respondent
            has received a list of  such programs, and a copy of  Form I-
            618, Written Notice of Appeal Rights."

            8.  In  fact, at the May hearing, the immigration judge twice
            mentioned that the appeal form contained his "appeal rights."

                                         -9-
                                          9



Several other facts  undermine Abrams's  contention

            that he had no notice of his  right to appeal.  First, at the

            May  hearing,  the  immigration  judge  specifically  advised

            Abrams that "there may be some relief that you might  be able

            to  apply for."  Second,  at the July  continuance, the judge

            stated that since Abrams was "not seeking any application for

            relief," the only  option was to issue the deportation order.

            Third,  as Abrams  later testified,  he fully  understood the

            implication  of Collins's response  regarding the finality of

            the decision.   Thus, in  addition to the  written notice  of

            appeal, the immigration  judge made at least three  direct or

            indirect references  to the  right to appeal  the deportation

            order or to seek alternative relief.9  

                      Abrams waived his  rights when he failed  to file a

            timely appeal.  On the basis of the record, we  conclude that

            Abrams made  his waiver after receiving  sufficient notice of

            his rights.    Accordingly, we  conclude  that there  was  no

            denial of Abrams's  rights and, consequently,  his collateral

            attack on the July 10, 1990, deportation order fails.10

                                
            ____________________

            9.  We also note  that having sought an adjustment  in status
            in 1986, Abrams had some familiarity with INS procedures.

            10.  Abrams also  argues  that he  was not  notified that  he
            could contact the Guyanese consulate as required by 8  C.F.R.
              242.2(g) ("Every detained  alien shall be notified that  he
            may communicate  with the consular or  diplomatic officers of
            the country of his nationality in the United States.").  This
            is  an issue properly addressed on direct appeal.  See, e.g.,
                                                               ___  ____
            Waldron v. INS, 17 F.3d 511, 515 (2d Cir. 1993), cert. denied
            _______    ___                                   _____ ______
            115  S. Ct.  572 (1994).   Since  we hold  that there  was no

                                         -10-
                                          10



____________________

            denial  of a  direct appeal,  Abrams waived  consideration of
            this issue.

                                         -11-
                                          11



III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For  the foregoing  reasons,  the decision  of  the

            district court is affirmed.
                              affirmed.
                              ________

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                                          12