
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          May 18, 1995                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the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.                                         -5-                                          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                                         -7-                                          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.                              ________                                         -12-                                          12
