United States v. Pizano-Corona

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 4, 2001
• Docket: 01-20124
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20124 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMIRO PIZANO-CORONA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-00-CR-21-1) _________________________________________________________________

August 31, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Ramiro Pizano-Corona, a/k/a Henry Miranda, appeals his

conviction for illegal reentry after deportation in violation of 8

U.S.C. §§ 1326(a) and (b)(2). Pizano’s motion to suppress his

prior deportation on due process grounds was denied. Pizano

asserts his prior deportation proceedings (1988) violated

principles of due process because there is no evidence the

immigration judge informed him he had the right to counsel or might

be eligible for relief from deportation. Pizano suggests these

omissions invalidated his waiver of his right to appeal; and he

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. contends he was prejudiced by the immigration judge’s alleged

failure to inform him of the possibility of relief from deportation

because there is a reasonable probability he would have been

eligible for relief from deportation based on extreme hardship.

An alien may collaterally challenge a deportation order used

as an element of a criminal offense. United States v.

Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). To suppress a

deportation order charged in a § 1326 prosecution, an alien must

establish: the deportation hearing was “fundamentally unfair”; the

hearing effectively eliminated his right to challenge the hearing

in a judicial review of the deportation order; and he suffered

actual prejudice, meaning there is a reasonable likelihood he would

not have been deported absent the challenged errors in the

deportation proceeding. United States v. Hernanzez-Avalos, 251

F.3d 505, 507 (5th Cir. 2001); United States v. Asibor, 109 F.3d

1023, 1038 (5th Cir.), cert. denied, 522 U.S. 902 (1997); United

States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 & n.8 (5th Cir.

1999), cert. denied, 528 U.S. 1097 (2000)(requiring showing of

actual prejudice while also noting Congress’ 1996 enactment of 8

U.S.C. § 1326(d)).

Pizano’s legal challenges to the constitutionality of the

deportation proceeding are reviewed de novo; the district court’s

factual findings based on live testimony at the suppression

hearing, only for clear error. United States v. Lopez-Vasquez, 227

F.3d 476, 481-82 (5th Cir. 2000); United States v. Sierra-

Hernandez, 192 F.3d 501, 503 (5th Cir. 1999), cert. denied, 528

2 U.S. 1178 (2000); United States v. Encarnacion-Galvez, 964 F.2d

402, 409 (5th Cir. ), cert. denied, 506 U.S. 945 (1992).

Pizano’s lengthy criminal history demonstrates he was

presumptively deportable under the law in effect at his 1988

deportation hearing (as well as under current immigration law) and

that he was (and is) ineligible for any type of relief from, or

suspension of, deportation. See 8 U.S.C.A. §§ 1227(a)(2)(A)(iii),

1228(c), 1229b (West, WESTLAW through May 28, 2001); 8 U.S.C. §§

1251, 1254 (1982 & Supp. V 1987). Thus, Pizano cannot demonstrate

he was prejudiced by errors, if any, in the 1988 deportation

proceeding. Benitez-Villafuerte, 186 F.3d at 658.

Pizano also claims showing actual prejudice is not required

because “structural” error was committed when he was allegedly

denied counsel in relation to his 1988 deportation hearing. The

district court found, however, that the January 1988 show cause

order informed Pizano he could be represented by counsel. Pizano

admitted at the suppression hearing that his signature appeared on

the order. The district court did not commit clear error in

finding Pizano was informed of his right to counsel.

AFFIRMED