United States v. Baptist, 14–1273.

759 F.3d 690

UNITED STATES of America, Plaintiff–Appellee,

v.Mansa N. BAPTIST, Defendant–Appellant.

No. 14–1273.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2014.

Decided July 17, 2014.

Rehearing and Rehearing En Banc Denied Sept. 9, 2014.

Mirta Woodall, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Rosa A. Eliades, Eliades Law, PLLC, Chicago, IL, for Defendant–Appellant.

Before BAUER, MANION, and SYKES, Circuit Judges.

BAUER, Circuit Judge.

Mansa N. Baptist (“Baptist”) was first removed ¹ from the United States to Belize in 1998 after he signed a stipulated removal order. Afterwards, he illegally reentered the United States several times; each time he was discovered, he was again removed to Belize. In 2005, Baptist illegally entered the United States once more and avoided detection until he was arrested in 2010. Afterwards, he was charged with being illegally present in the United States after having been previously removed, in violation of 8 U.S.C. § 1326(a). Baptist filed a motion to dismiss the indictment. In his motion, he collaterally attacked his 1998 removal under 8 U.S.C. § 1326(d), contending that the removal violated his due process rights. The district court denied Baptist's motion, and he appealed. We affirm the district court's decision.

I. BACKGROUND

Baptist is a native of Belize who entered the United States as a lawful permanent resident on January 31, 1988. On September 15, 1992, Baptist pleaded guilty to possession of a controlled substance and was sentenced to probation. On February 6, 1995, Baptist was convicted of possession of a controlled substance after a bench trial and was sentenced to probation a second time. ² On September 23,1996, Baptist was again convicted of possession of a controlled substance after a bench trial; this time, he was sentenced to five years' imprisonment. At the time, this offense was considered an aggravated felony. INA § 101(a)(43)(B).

After being released on parole, Baptist received a Notice to Appear (“NTA”) on October 14, 1998, stating that he had been placed in removal proceedings due to his earlier controlled substance conviction. The NTA asserted that Baptist had been convicted of an offense constituting an aggravated felony drug trafficking offense as well as a controlled substance offense, making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (any alien who is convicted of an aggravated felony at any time is removable) and 8 U.S.C. § 1227(a)(2)(B)(i) (any alien who has been convicted of a violation of a law relating to a controlled substance, other than a single offense involving possession of marijuana for one's own use, is removable).

On October 22, 1998, Baptist was given a form titled, “Respondent's Stipulated Request for Order Waiver of Hearing Pursuant to 8 CFR 3.25(b).” ³ The stipulated removal order was written in English, Baptist's native language, as well as Spanish. The document explained Baptist's rights as well as the consequences of signing the form. Relevant portions of the removal order state:

2. I have received a copy of the LIST OF FREE LEGAL SERVICE PROVIDERS. I am aware that, pursuant to 8 CFR 240.3, I may be represented by an attorney.... I do not wish to be represented by an attorney ... I elect to represent myself in these proceedings.

3. I understand my right to a personal hearing before an immigration judge.... I hereby waive th[is] right[ ], and request that my removal proceeding[ ] be conducted solely by way of written record without a hearing.

5. I do not wish to apply for relief from removal.... I am not seeking the relief of ... cancellation of removal, ... or any other possible relief or other benefits under the Act.

8. I understand the consequences ... are that I will be removed from the United States. I make this request voluntarily, knowingly, and intelligently.

10. I waive appeal of the written order of removal from the United States.

11. I have carefully read or have had read to me in my native language this entire document, and fully understand its consequences. I am aware that my eventual removal from the United States will be the result of my signing this document.

Baptist signed the form. The Immigration Judge (“IJ”) reviewed the signed stipulated removal order and stated, “I find, based upon my review of the record in this matter, that respondent has entered into this stipulation voluntarily, knowingly and intelligently.” (Baptist never appeared before the IJ; he waived his right to do so when he signed the stipulated removal order.) On October 22, 1998, the IJ ordered Baptist's removal. Baptist was deported to Belize on November 9, 1998; he did not appeal the IJ's order, file a motion to reopen the proceedings, or file a habeas petition.

Sometime before September 2, 1999, Baptist reentered the United States without inspection. On April 2, 2002, he was arrested by Chicago police officers for assault. Police notified the Immigration and Naturalization Service, and Baptist received a Notice of Intent/Decision to Reinstate Prior Order. This notice stated that Baptist was subject to removal based on the fact that he had illegally reentered the United States after having been previously removed, and that the Attorney General intended to reinstate Baptist's 1998 removal order. The notice informed Baptist that he could contest the findings contained therein, but Baptist never did so. He was removed to Belize a second time on May 9, 2002.

On June 12, 2002, Baptist tried to gain entry to the United States by falsely stating that he was a United States citizen. He was apprehended and charged in district court with illegal reentry in violation of 8 U.S.C. § 1326(a). On September 2, 2002, he pleaded guilty; on November 8, 2002, he was sentenced to 37 months' imprisonment. He served his sentence, then was removed to Belize a third time on February 17, 2005.

On December 22, 2005, Baptist illegally reentered the United States once again, this time by displaying someone else's Indiana driver's license to border patrol officers in California. Baptist managed to evade detection for several years, but was arrested by Chicago police officers on August 30, 2010, for possession of cannabis. The police informed Immigration and Customs Enforcement of Baptist's presence in the United States. Baptist was indicted on June 12, 2012, and charged with being illegally present in the United States after being previously removed or deported in violation of 8 U.S.C. § 1326(a).

On October 10, 2012, Baptist was arrested; thereafter, he was held in custody.

Baptist entered a conditional guilty plea to the charges, but reserved his right to appeal. He then filed a motion collaterally attacking his 1998 removal under 8 U.S.C. § 1326(d), arguing that the removal violated his due process rights. He claimed the removal was fundamentally unfair since it was based on the stipulated removal order he signed without the assistance of counsel or the opportunity to appear before an IJ. He also asserted that if he had not signed the stipulated removal order, he could have applied for relief from deportation under § 212(c) of the former Immigration and Nationality Act.

The government responded to Baptist's motion and asserted that his removal was not fundamentally unfair. Since Baptist voluntarily signed the stipulated removal order, the government argued that he knowingly waived his right to counsel as well as a hearing before an IJ. Furthermore, the government argued that Baptist suffered no prejudice as a result of his removal, because he was ineligible for relief from removal anyway. The government also stated that Baptist's challenge was without merit since he failed to exhaust his administrative remedies.

On July 2, 2013, the district court denied Baptist's motion. It found that Baptist's removal was not fundamentally unfair, because he willingly signed the stipulated removal order, waived his rights, and failed to demonstrate the requisite prejudice. The court stated: “[t]he stipulated [removal] order fully advised [Baptist] of his rights, ... [and Baptist] doesn't claim [he was] coerced or tricked into signing the form.... The stipulation says that he had read [the form] in his native language, [and] fully understood its consequences.... He provides no grounds as to why his waiver was not considered or intelligent....”

Baptist now appeals the denial of his motion to dismiss.

II. DISCUSSION

This court reviews de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326(a). United States v. Arita–Campos, 607 F.3d 487, 491 (7th Cir.2010); United States v. Santiago–Ochoa, 447 F.3d 1015, 1019 (7th Cir.2006). Section 1326 makes it a crime for a removed alien to enter, attempt to enter, or be found in the United States without the consent of the Attorney General. 8 U.S.C. § 1326 (West 2014). Since a prior removal is necessary for a conviction under § 1326, an alien may collaterally attack the underlying removal pursuant to the due process clause. United States v. Mendoza–Lopez, 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). The defendant bears the burden of proving that the deportation order was defective. Arita–Campos, 607 F.3d at 490. In order to successfully do so, an alien must demonstrate that (1) he exhausted all administrative remedies that were available to him; (2) the deportation proceedings improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was “fundamentally unfair.” 8 U.S.C. § 1326(d). While we have yet to expressly state that all three requirements must be met before an alien can successfully collaterally attack a prior removal, we have implied as much. See, e.g., Santiago–Ochoa, 447 F.3d at 1019–20; United States v. Lara–Unzueta, 735 F.3d 954, 961 (7th Cir.2013).

In reaching its decision to deny Baptist's motion to dismiss, the district court focused primarily on the fundamental fairness of Baptist's...