                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

USA v. Tecat
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1957




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1957


                           UNITED STATES OF AMERICA

                                           v.

                              OMAR ANTONIO TECAT
                                     a/k/a
                                 OMAR TECAT
                                     a/k/a
                                NESTOR ORTEGA

                                   Omar Antonio Tecat,
                                                 Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                           D.C. Crim. No. 02-cr-00575-1
                  District Judge: The Honorable John C. Lifland


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 17, 2005


       Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge


                          (Opinion Filed: December 20, 2005 )



   *
   The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
                                         OPINION




BARRY, Circuit Judge

       Appellant Omar Tecat appeals his conviction for illegal reentry into the United

States. For the reasons stated below, we will affirm the judgments of conviction and

sentence.

                                              I.

       On February 29, 1996, a jury convicted Tecat of possession of heroin with intent to

distribute within one thousand feet of a school. He was sentenced in April of that year to

five-years in prison. The conviction rendered Tecat eligible for deportation, and the

Immigration and Naturalization Service (“INS”) initiated proceedings against him in the

spring of 1999. A deportation hearing was held on April 23, 1999 before an immigration

judge (“IJ”).

       At the hearing, the IJ received from the government “Forms I-618, the legal aid

sheet, the Notice to Appear,” along with copies of appellant’s criminal conviction records

which the IJ determined were properly certified. After Tecat was sworn and without

objection from counsel, the IJ put three questions to him:

       Q. . . . . Sir, do you admit that you’re not a citizen or national of the United
       States, but that you’re a native and citizen of the Dominican Republic?
       A. Yes, Your Honor.
       Q. Sir, do you admit that you were admitted to the United States at New

                                              2
       York, New York, on or about July 29, 1991, as an immigrant with your
       green card?
       A. Yes, Your Honor.
       Q. And, sir, do you admit that you were on February 29, 1996, convicted in
       Passaic County, New Jersey for possession of heroin with intent to
       distribute within 1,000 feet of a school?
       A. Yes, Your Honor.

(Tr. at 11-12, App. 84-85.)

       The IJ found Tecat removable and also found him ineligible for relief pursuant to

§212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c),

repealed by Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No.

104-208, § 304(b), 110 Stat. 3009-597. Tecat appealed to the Board of Immigration

Appeals (“BIA”). On October 21, 1999, the BIA denied his appeal, affirming the IJ’s

finding that he was removable.1 He was deported on November 19, 1999.

       Tecat returned. As a consequence, on July 25, 2002 he was indicted pursuant to 8

U.S.C. §§ 1326(a) and 1326(b)(2) for illegal reentry. He pled guilty on September 27,

2002.2 On June 10, 2004, he moved to withdraw his guilty plea, suppress the order of

deportation underlying the illegal reentry charge, and dismiss the indictment. The District



   1
   The BIA also concluded he was statutorily ineligible for relief under § 212(c) of the
INA, 8 U.S.C. § 1182(c) (1994).
   2
    In its brief, the government contends that Tecat pled guilty on February 27, 2002, but
provides a record citation indicating that the plea hearing occurred on September 27,
2002. (App. 109.) Appellant’s brief provides both the February 27, 2002 and September
27, 2002 dates. (Compare Appellant’s Br. at 7 with id. at 3.) Given the fact that the
indictment was returned in July 2002, the plea could not have been in the preceding
February.

                                            3
Court denied the motion on February 23, 2005. Soon thereafter, Tecat was sentenced and

judgment entered. This appeal followed.




                                              II.

       Our jurisdiction arises under 28 U.S.C. § 1291. Although Tecat is appealing his

conviction, his appeal turns on his argument that the underlying deportation hearing was

“fundamentally unfair.” We review that issue, the parties agree, de novo. United States

v. Torres, 383 F.3d 92, 95 (3d Cir. 2004). To do so, we turn to the statute of conviction,

which permits a collateral attack upon an underlying deportation order when

       the alien demonstrates that –
              (1) the alien exhausted any administrative remedies that may have
              been available to seek relief against the order;
              (2) the deportation proceedings at which the order was issued
              improperly deprived the alien of the opportunity for judicial review;
              (3) the entry of the order was fundamentally unfair.


8 U.S.C. § 1326(d). It is the third prerequisite that is at issue here.3 In Tecat’s estimation,



   3
    The government also claims that appellant had the right to raise his due process claim
in a § 2241 petition and, therefore, was not “improperly deprived of . . . the opportunity
for judicial review.” Tecat argued before the District Court that the law of the Fifth
Circuit – the deportation hearing was held in Oakdale, Louisiana – was less than clear at
the time of his deportation hearing about the availability of habeas review. He does not
press this argument on appeal. In any event, as will be discussed, he falters at the third
prerequisite of 8 U.S.C. § 1326(d). Cf. United States v. Torres, 383 F.3d 92, 102-03 (3d
Cir. 2004) (assuming, without deciding, that appellant “was denied a meaningful
opportunity for judicial review” where his “collateral challenge suffers from a more
obvious defect – he cannot establish that his removal order was ‘fundamentally unfair’ as

                                              4
the IJ improperly denied him a “fair opportunity to be heard” when he “stepped into the

government’s shoes by conducting the entire examination,” thereby “effectively mak[ing]

the government’s case.” 4

       The IJ’s efforts to confirm the substance of the record, an endeavor in which Tecat

voluntarily participated, does not constitute a denial of a fair opportunity to be heard. The

IJ was free to inquire of Tecat. See 8 U.S.C. § 1229(b)(1) (“The immigration judge shall

administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien

and any witnesses.”). The questions asked were basic and relevant to the issue before the

IJ, the answers elicited were otherwise in the record, and Tecat offers no countervailing

evidence which he would have offered but was prevented from offering.



required by section 1326(d)(3).”).
   4
     Appellant also argued to the District Court that the BIA incorrectly concluded that he
was statutorily ineligible for relief under § 212(c) of the INA, 8 U.S.C. § 1182(c),
repealed by Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No.
104-208, § 304(b), 110 Stat. 3009-597. While appellant’s motion was pending before the
District Court, however, we determined that “‘fundamental fairness is a question of
procedure.’” Torres, 383 F.3d at 103 (citation omitted). We made it clear that “[w]ithout
more, an error of law will ordinarily not rise to the level of a due process violation.” Id.
at 104. We further found that an alien has no “due process liberty interest in being
considered for 212(c) relief.” Id. In sum,
        although the IJ erroneously concluded that Torres was ineligible to be
        considered for discretionary relief, the IJ did inform Torres of the reasons
        for the Government's charge that Torres was removable, did provide him an
        opportunity to present a defense, did secure the waiver of Torres's defense
        and appeal rights, and did grant Torres's request to be deported to his native
        country. The IJ's conduct in totality did not deny Torres due process.
Id. at 106. Torres forecloses any argument turning solely on the BIA’s alleged legal
error. Appellant has accordingly abandoned that argument on appeal.

                                             5
       Given the foregoing, Tecat has not made any showing of prejudice. Cf. Torres,

383 F.3d at 103 n.13 (noting, without deciding, that “every Circuit to have considered the

requirements for a successful collateral challenge to a removal order has held that the

alien must make some showing that prejudice has resulted – i.e., whether the alien could

realistically have expected that the Attorney General would exercise discretion to give the

alien relief from removal”) (emphasis in original). Tecat has abandoned on appeal any

argument arising out of the denial of § 212(c) consideration and, in so doing, has

abandoned any argument that he had a realistic expectation that the Attorney General

would have exercised discretion on his behalf. Moreover, to this day he has not contested

the facts underlying the IJ’s decision.5 There is, in short, no reason to believe that the

underlying deportation hearing was unfair in any way, much less “fundamentally unfair.”

                                            IV.


       For the foregoing reasons, we will affirm the judgments of conviction and

sentence.




   5
    Tecat pled to the factual underpinnings of the illegal reentry charge and those facts
were included in his pre-sentence report. Also, in addition to “the evidence in the form of
[appellant’s] own admissions [and] testimony,” the IJ relied upon “documents submitted
by the INS.” (Oral Dec. of the IJ at 1, App. 87).

                                              6
