Reentry Defendant Failed to Meet Prerequisites of 8 U.S.C. 1326(d) for Collateral Attack on Prior Removal

U.S. v. Rivera-Nevarez, 2005 WL 1847344 (8/5/05) - An important, depressing reentry case. The permanent resident alien defendant was removed in 1999 on the grounds that his DUI conviction was an aggravated felony. He challenged the reentry after deportation after a felony charge on the grounds that his deportation was illegal, since United States v. Lucio-Lucio (10th Cir. 2003), and later the Leocal v. Ashcroft (U.S. 2004) establish DUI is not an aggravated felony for removal purposes. The d.ct. ruled Lucio-Lucio did not apply retroactively. The defendant entered a conditional plea. The 10th ruled that obviously Lucio-Lucio and Leocal applied retroactively because they interpreted a statute that has always meant what the S.Ct. said it meant. Nonetheless, the 10th concluded that, even assuming the removal was fundamentally unfair, the defendant did not meet one of the other prerequisites for collaterally challenging a prior deportation under 8 U.S.C. § 1326(d), i.e., that the prior removal proceedings deprived the alien of the opportunity for judicial review. The case law was ambiguous enough about whether appeal from removal for an aggravated felony conviction was available and whether DUI was an aggravated felony so that it wouldn't have been futile to appeal. Also, the defendant did not show that the notice of his right to appeal or his appeal waiver was inadequate.

The 10th rejected dissenting Judge Lucero's interesting contention that the 10th should remand to vacate the plea because the defendant prevailed on his challenge to the d.ct.'s retroactivity decision. According to Judge Lucero, the defendant's plea was conditioned on whether the d.ct.'s order was reversed, not on whether he would ultimately obtain a dismissal of the indictment. Judge Lucero worried that otherwise the plea may not have been knowing. The majority held, among other things, that the plea was conditioned on the ultimate success of the motion to dismiss not on whether the d.ct.'s particular rationale was correct.