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Case Name:USA V GARZA-SANCHEZ
Case Number:	Date Filed:
99-50596	07/07/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 99-50596
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-98-779-LGB
MAURILIO GARZA-SANCHEZ,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Lourdes G. Baird, District Judge, Presiding

Argued and Submitted
May 5, 2000--Pasadena, California

Filed July 7, 2000

Before: J. Clifford Wallace, Stephen S. Trott, and
Ron Gould, Circuit Judges.

Opinion by Judge Gould

_________________________________________________________________


COUNSEL

Korey House, Deputy Federal Public Defender, Los Angeles,
California, for the defendant-appellant.

Krystal N. Denley, Assistant United States Attorney, Los
Angeles California, for the plaintiff-appellee.

_________________________________________________________________

OPINION

GOULD, Circuit Judge:

Maurilio Garza-Sanchez ("Garza") appeals his conviction
of being an alien found in the United States following depor-
tation, in violation of 8 U.S.C. S 1326. He contends that the
underlying deportation was unlawful and cannot be used to
support his conviction under S 1326. We have jurisdiction
pursuant to 28 U.S.C. S 1291. We hold that Garza validly
waived the right to appeal his deportation, and cannot collat-
erally attack it now. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1994, Garza was convicted of possession of a controlled
substance, robbery, and possession of methamphetamine for
sale. On November 7, 1996, the Immigration and Naturaliza-
tion Service ("INS") issued an Order to Show Cause, com-
mencing deportation proceedings against Garza on the basis

                               7407


of his 1994 conviction of possession of methamphetamine for
sale. At his final deportation hearing on June 1, 1998, Garza
admitted the allegations against him set forth in the Order to
Show Cause, and was ordered deported. The immigration
judge ("IJ") advised Garza of his right to appeal, and Garza
waived it. He was deported the following day.

Less than three weeks later Garza was found in Los Ange-
les County. He was indicted for violation of 8 U.S.C. S 1326
on July 28, 1998. Garza moved to dismiss the indictment on
the ground that the underlying deportation was unlawful. The
district court denied Garza's motion, concluding that he had
waived the right to appeal the deportation order, and that he
therefore could not collaterally attack the deportation in this
prosecution under S 1326. Garza thereafter pleaded guilty,
reserving his right to challenge the denial of his motion to dis-
miss the indictment. This appeal followed.

DISCUSSION

We review de novo a district court's decision to deny a
defendant's collateral attack on a deportation proceeding.
United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir.
1992) (en banc). A defendant charged under 8 U.S.C.S 1326
may not collaterally attack the underlying deportation order if
he or she did not exhaust administrative remedies in the
deportation proceedings, including direct appeal of the depor-
tation order. See United States v. Estrada-Torres, 179 F.3d
776, 780 (9th Cir. 1999); see also 8 U.S.C.S 1326(d).
Accordingly, a valid waiver of the right to appeal a deporta-
tion order precludes a later collateral attack. See Estrada-
Torres, 179 F.3d at 780. Due process requires that, to be
valid, such a waiver must be "considered and intelligent."
United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987).

Here, it is undisputed that Garza waived the right to appeal
his order of deportation. Garza argues, however, that his
waiver was not considered and intelligent because the IJ

                               7408


failed to inform him of possible challenges to his deportation
before Garza decided to waive his right to appeal. We review
de novo the validity of a waiver of appellate rights. See
United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995).
We conclude that the IJ did all that the law required. Garza's
waiver was fully informed, considered and intelligent, and
therefore was valid.

A

[1] Garza's argument is based primarily on 8 C.F.R.
S 240.49(a),1 which provides, in part :

      The immigration judge shall inform the respondent
      of his or her apparent eligibility to apply for any of
      the benefits enumerated in this paragraph and shall
      afford the respondent an opportunity to make appli-
      cation therefor during the hearing.

According to Garza, the IJ failed to comply withS 240.49
because he did not inform Garza of two possible constitu-
tional challenges to the immigration laws which, if either
were successful, would have rendered him eligible for a dis-
cretionary waiver of deportation.

First, in 1996 Congress amended 8 U.S.C. S 1182(c) to
make discretionary relief from deportation unavailable to
aliens who were "deportable" by reason of having been con-
victed of certain criminal offenses, including the drug offense
_________________________________________________________________
1 In their briefs, both parties cite 8 C.F.R. S 242.17. Effective April 1,
1997, however, that provision was replaced by S 240.49, as part of a com-
prehensive set of amendments to the INS regulations to implement the
provisions of the Illegal Immigration Reform and Immigrant Responsibil-
ity Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996). See 62 Fed. Reg.
10312, 10375 (March 6, 1997); 8 C.F.R. S 240.49 (1998). Section 240.49
applies to all deportation proceedings commenced before April 1, 1997, as
was Garza's. With respect to the issues raised in this appeal, the differ-
ences between SS 242.17 and 240.49 are not material.

                               7409


to which Garza pleaded guilty. See Estrada-Torres, 179 F.3d
at 778. The INS interpreted this amendment to bar discretion-
ary relief only for aliens who were in deportation proceedings,
but to permit relief for aliens who were in exclusion proceed-
ings. See id. at 778-79. By the time of Garza's deportation
hearing, some courts had ruled that this disparity of treatment
between excludable and deportable aliens violated the Equal
Protection Clause.2 See, e.g. , Musto v. Perryman, 6 F. Supp.
2d 758, 762 (N.D. Ill. 1998), rev'd, 193 F.3d 888 (7th Cir.
1999); Avelar-Cruz v. Reno, 6 F. Supp. 2d 744, 757 (N.D.
Ill.), rev'd sub nom. LaGuerre v. Reno, 164 F.3d 1035 (7th
Cir. 1998), cert. denied, 120 S. Ct. 1157 (2000); Jurado-
Gutierrez v. Greene, 977 F. Supp. 1089, 1093 (D. Colo. 1997).3
Garza contends that S 240.49 required the IJ to advise him
that he could assert a similar equal protection challenge.

Second, Garza contends that he "may have" pleaded guilty
to the 1994 drug charge in reliance on the availability of a dis-
cretionary waiver under the version of S 1182(c) in effect at
the time of his plea. On this basis, Garza argues that during
his deportation hearing in 1998 the IJ should have advised
him of a potential due process challenge to the retroactive
application of the 1996 amendment to S 1182(c). It was this
retroactive application of the amended version ofS 1182(c)
that precluded Garza from obtaining a discretionary waiver
_________________________________________________________________
2 In Estrada-Torres, we held that the INS was mistaken in its interpreta-
tion of the statute, and that it applied to aliens in both deportation and
exclusion proceedings. 179 F.3d at 779. However, we left open the possi-
bility of an as-applied challenge based on the INS's erroneous application
of the statute. See id. at 779-80.
3 In his briefs, Garza cites two additional decisions that he says also
should have triggered the IJ's duty to advise him: Gutierrez-Martinez v.
Reno, 989 F. Supp. 1205 (N.D. Ga. 1998), and Vargas v. Reno, 966 F.
Supp. 1537 (S.D. Cal. 1997). These cases, however, held that even if there
was an equal protection problem, an issue that they did not reach, the peti-
tioner was not entitled to relief from deportation as a remedy. See
Gutierrez-Martinez, 989 F. Supp. at 1211; Vargas, 966 F. Supp. at 1547-
48.

                               7410


because of his earlier drug conviction. One of our decisions
has since left open in dicta the possibility that "in a rare cir-
cumstance" and "under a specific factual showing that a plea
was entered in reliance on the availability of discretionary
waiver under S 212(c) [of the Immigration and Nationality
Act, 8 U.S.C. S 1182(c)]," an alien may be able to establish
that the 1996 amendment to S 1182(c) "has an impermissible
retroactive application as to him." Magana-Pizano v. INS, 200
F.3d 603, 613 (9th Cir. 1999).4

The issue, therefore, is whether S 240.49 required the IJ to
inform Garza of these potential constitutional challenges to
the immigration laws.

Where a regulation's meaning is plain and unambiguous,
we must construe it to give effect to that meaning. See Crown
Pac. v. Occupational Safety & Health Review Comm'n , 197
F.3d 1036, 1038 (9th Cir. 1999); Cabrera v. Martin, 973 F.2d
735, 745 (9th Cir. 1992). This rule is dispositive of the issue
at hand.

[2] Here, Garza's contention is inconsistent with the plain
and unambiguous language of S 240.49. That regulation
requires only that the IJ "inform the respondent of his or her
apparent eligibility to apply for any of the benefits enumer-
ated in this paragraph" (emphasis added). These enumerated
benefits are all statutory grounds for relief from deportation
found in the immigration laws.5 A potential constitutional
_________________________________________________________________
4 Far from making the "specific factual showing" that we suggested in
Magana-Pizano would be required to raise this issue, Garza asserts only
the vague claim that he "may have" pleaded guilty in reliance on the avail-
ability of a discretionary waiver, and points to no evidence whatsoever
that he in fact did rely on the availability of such a waiver.
5 Those benefits are enumerated as follows:

      The respondent may apply to the immigration judge for suspen-
      sion of deportation under section 244(a) of the[Immigration and
      Nationality] Act; for adjustment of status under section 245 of the

                               7411


challenge to the immigration laws themselves is not among
them. We may not read into this regulation a requirement that
it does not impose by its precise terms.

[3] We conclude that S 240.49 did not require the IJ to
inform Garza of potential constitutional challenges to the
immigration laws.6

B

Garza contends that even if S 240.49 did not require the IJ
to inform him of possible constitutional challenges to his
deportation, the Due Process Clause did. We disagree. Garza
cites no authority for the proposition that an alien's waiver of
the right to appeal a deportation order is invalid unless the IJ
informed him or her of every potential ground for relief,
including possible constitutional challenges to the deportation
laws.
_________________________________________________________________
      Act, or under section 1 of the Act of November 2, 1966, or under
      section 101 or 104 of the Act of October 28, 1977; or for the cre-
      ation of a record of lawful admission for permanent residence
      under section 249 of the Act . . . . In conjunction with any appli-
      cation for creation of status of an alien lawfully admitted for per-
      manent residence made to an immigration judge, if the
      respondent is inadmissible under any provision of section 212(a)
      of the Act and believes that he or she meets the eligibility
      requirements for a waiver of the ground of inadmissibility, he or
      she may apply to the immigration judge for such waiver.

8 C.F.R. S 240.49.
6 In his briefs, Garza also appears to argue that the IJ should have
informed him that he might have been eligible for a discretionary waiver
of deportation under 8 U.S.C. S 1182(c), even absent any constitutional
infirmity. This contention lacks merit. As indicated above, by the time
deportation proceedings were commenced against Garza, S 1182(c) had
been amended, rendering Garza ineligible for a discretionary waiver
because of his prior conviction for methamphetamine possession. See
Magana-Pizano, 200 F.3d at 606.

                               7412


Garza's position is vague in principle and unworkable in
practice. Consider, for example, Garza's contention that the IJ
should have advised him of a potential equal protection chal-
lenge because three courts in various jurisdictions had ruled
favorably on such challenges in the past. What if only one
court had ruled favorably? What if there were challenges
pending in some courts, but no decision had yet been made?
What if the possibility of such a challenge had only been sug-
gested in a law review note? What if no one had suggested the
possibility of such a challenge, but the IJ might have thought
of it? These examples illustrate the potentially expansive and
open-ended obligations of an IJ that might follow from
Garza's contention. Cf. Michaelson v. INS, 897 F.2d 465, 468
(10th Cir. 1990) (stating that IJ "not required to construct
elaborate theories, marshal obscure facts and develop an argu-
able basis for relief from deportation").

[4] Established legal principles and case authority point to
the conclusion that the Due Process Clause does not require
the IJ to advise of potential constitutional challenges. We
have held, for example, that an IJ's failure to advise an alien
of the right to appeal the amount of bail imposed did not ren-
der invalid his subsequent waiver of appeal. See United States
v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th Cir. 1999).
Similarly, the Fifth Circuit has held that "[f]ailure to ensure
that a potential deportee knows and fully understands each
and every one of his rights under I.N.S. regulations is not a
deprivation of fundamental fairness." United States v.
Palacios-Martinez, 845 F.2d 89, 92 (5th Cir. 1988).

When considering similar challenges to the validity of
appeal waivers during deportation proceedings, we also have
observed that Rule 11 of the Federal Rules of Criminal Proce-
dure may provide pertinent analogy. See United States v.
Chavez-Huerto, 972 F.2d 1087, 1089 (9th Cir. 1992). Rule 11
does not require a court, before accepting a guilty plea, to
enumerate for the defendant every possible defense and
ground for appeal that she or he is foregoing by pleading

                               7413


guilty. See Fed. R. Crim. P. 11(c); see generally Charles A.
Wright, Federal Practice and Procedure, Criminal  SS 171-
75. Such a plea results in the waiver not only of the right to
appeal, but also of the fundamental rights against self-
incrimination, to trial by jury, and to confront one's accusers.
See McCarthy v. United States, 394 U.S. 459, 466 (1969). In
United States v. Solano-Godines, 120 F.3d 957 (9th Cir.
1997), we stated that because deportation proceedings are
civil in nature, the "full panoply of . . . procedural and sub-
stantive safeguards which are provided in a criminal proceed-
ing are not required." Id. at 960-61 (internal quotation and
citation omitted). If the judge need not advise about legal the-
ories and defenses before accepting a guilty plea in a criminal
prosecution, then it follows that due process does not require
an IJ to do so before accepting admissions of facts supporting
deportability and waiver of appeal in a deportation proceed-
ing.

CONCLUSION

For all of the above reasons, we hold that the IJ had no duty
to advise Garza of the potential constitutional challenges
Garza describes. Garza's waiver was considered and intelli-
gent, and therefore valid.

AFFIRMED.

                               7414




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