Opinion
No. M0-00-CR-138.
May 22, 2001
G. Glenn Roque-Jackson, Assistant United States Attorney, Midland, TX, Attorney for United States.
George E. Patton, Midland, TX, Attorney for Defendant.
PROPOSED FINDINGS OF FACT AND RECOMMENDATION ON DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA
BEFORE THE COURT are the Defendant's Motion to Withdraw Guilty Plea filed on April 12, 2001, and the Government's Response filed on April 13, 2001. The Court conducted two hearings on this matter: one on March 23, 2001, before the motion was "officially" filed and one on April 24, 2001, after the motion was filed. For the reasons discussed below, it is the recommendation of the undersigned United States Magistrate Judge that the Defendant's motion to withdraw his guilty plea should be GRANTED.
BACKGROUND
On January 22, 2001, the Defendant entered a conditional plea of guilty to COUNT ONE of a One Count Indictment charging him with a violation of 8 U.S.C. § 1326 (a) — illegal reentry by an alien. On February 14, 2001, the District Judge adopted the undersigned's recommendation that the Defendant's guilty plea be accepted and found the Defendant guilty of COUNT ONE of the Indictment. The Defendant now moves the Court to allow him to withdraw his guilty plea.
On March 23, 2001, the Court conducted a status conference in this case. The Court was informed by defense counsel that the Defendant remained adamant in his belief that he was a citizen of the United States. During the status hearing, the Defendant presented documentary evidence and the testimony of his father. At the conclusion of the hearing, the Defendant requested more time to research the issue of derivative citizenship before sentencing occurred and before filing a formal motion. The Court was in agreement and allowed the Defendant time to research and file the instant motion.
The Court admitted into evidence the following exhibits by the Defendant: 1) The Defendant's birth certificate; 2) The father's certificate of baptism; 3) The Defendant's parent's marriage certificate and father's social security card; 4) The Defendant's parent's Petition for Dissolution of Marriage; 5) The Judgment and Decree of Dissolution of Marriage.
Exhibit by the Government: 1) The decision of the Board of Immigration Appeals.
The evidence presented at the hearing shows that on April 8, 1957, the Defendant was born in Mexico out of wedlock to one apparent United States citizen parent (father) and one alien parent (mother). The Defendant's father appears to be a United States citizen who began his intial residence in this country and departed between the ages of three and twelve to travel and reside with his parents in Mexico. Thereafter, the evidence reflects he returned in 1941 and initially began to work as an agricultural laborer until the outbreak and eventual conclusion of World War II, which led to his employment in the construction of railroads around age sixteen or seventeen. The Defendant was born out of wedlock in Mexico, but the parents were married three days after the Defendant's birth.
The Defendant's father moved his family to Mexico and eventually rented his first residence in Presidio, Texas. (Prior residences in the United States had apparently been provided for the father as a migrant worker and railroad employee.) Thereafter, it appears the Defendant spent most of his life in the United States. The Defendant's parents eventually divorced in New Mexico.
On February 9, 1999, an Immigration Judge found the Defendant removable under 8 U.S.C. § 1227 (a)(2)(A)(iii). The Defendant, proceeding pro se, timely appealed the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"). On appeal the Defendant sought relief under a theory of derivative citizenship. Specifically, the Defendant alleged that he was a United States citizen pursuant to 8 U.S.C. § 1432 (a) because his father was a United States citizen and his parents had remained married since his birth.
The BIA found that Section 1432(a) pertained to children born outside of the United States to alien parents, or to an alien parent and a former United States citizen. Because the Defendant's father was a United States citizen at the time of the Defendant's birth and never lost his citizenship, the BIA found that the Defendant was prima facie ineligible for relief under Section 1432(a). In addition, the BIA found that the Defendant was ineligible for citizenship under 8 U.S.C. § 1431(a)(1) and 1433(a)(1-3). Accordingly, the BIA dismissed the Defendant's appeal, and the Defendant was deported from the United States on or about September 10, 1999.
Subsequent to the deportation, the Defendant returned to the United States, which forms the basis for the One Count Indictment in this case. The Indictment in this case charges:
That on or about August 21, 2000, in the Western District of Texas, the Defendant, Raul Ramirez-Garcia, an alien attempted to enter, entered, and was found in the United States, having previously been denied admission, excluded, deported and removed therefrom on or about September 10, 1999, which followed his having been convicted of an aggravated felony, to wit: Burglary and Unlawful Taking of a Motor Vehicle, in Artesia, New Mexico, and that the Defendant had not received the consent of the Attorney General of the United States to reapply for admission to the United States, being in the United States unlawfully. A violation of Title 8, United States Code, Sections 1326(a) (b)(2).
The Court has simply provided a brief synopsis of the evidence reviewed for purposes of this Motion, and the Court is not making any type of final determination regarding citizenship of the Defendant.
DISCUSSION
The Defendant wishes to withdraw his guilty plea in this case because he claims to be a United States citizen. And as such, he claims he cannot be guilty of the crime with which he is charged. The Government responds by contending that the Defendant is simply attempting to mount a collateral attack on his previous deportation proceedings, which the Government contends the Defendant is prohibited from doing by statute. The Court disagrees with the Government's position and, for the reasons discussed below, is of the opinion that the Defendant should be allowed to withdraw his guilty plea in this case.
Federal Rule of Criminal Procedure 32(e) allows a defendant to withdraw his guilty plea before sentencing if he can show a "fair and just reason" for doing so. However, a criminal defendant does not have an absolute right to withdraw his guilty plea. United States v. Moore, 37 F.3d 169, 172 (5th Cir. 1994); United States v. Badger, 925 F.2d 101, 103 (5th Cir. 1991). The Fifth Circuit has set out seven factors for district courts to consider when ruling on a motion pursuant to Rule 32 (e):
(1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether adequate assistance of counsel was available to the defendant;(6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. No single factor or combination of factors mandates a particular result. Instead, the district court should make its determination based on the totality of the circumstances.Id. (citations omitted).
The Defendant pled guilty to 8 U.S.C. § 1326 (a) which states:
Subject to subsection (b) of this section, any alien who —
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both.
Thus, it is clear from the language of the statute that the elements of this crime are that the Defendant (1) was an alien, (2) was previously deported, (3) re-entered the United States, and (4) lacked the Attorney General's consent to reenter or was not required to obtain consent. United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995). It goes without saying that the Government must prove every element of this crime beyond a reasonable doubt, including the Defendant's status as an alien. Thus, it is clear to this Court that a claim of "derivative citizenship" is relevant to a Section 1326 prosecution. See United States v. Meza-Soria, 935 F.2d 166 (9th Cir. 1991) (holding that a defendant may raise citizenship as a defense to a Section 1326(a) prosecution).
Government's Collateral Attack Argument
The Court finds the Government's position regarding a collateral attack misplaced in this case. The Government views the Defendant's motion to withdraw his guilty plea based on a derivative citizenship claim as an attempt to challenge the underlying BIA ruling, which found the Defendant not a United States citizen and ordered him deported. However, the Court does not share this view.
To reiterate, in a Section 1326, or any other criminal prosecution, the Government must prove each element of the offense beyond a reasonable doubt. There are two elements of a Section 1326 prosecution that are essential to this discussion — the first and second elements. The first element the Government must prove is alienage, and the second element is deportation. While the Court agrees with the Government that by statute defendants ordinarily may not collaterally attack a previous deportation proceeding (the second element), it disagrees that this should also collaterally estop a defendant from attacking his alien status (the first element) by making a showing of derivative citizenship. In other words, the fact that a defendant cannot collaterally attack a deportation proceeding is a distinct issue from whether the defendant should be allowed to put on evidence of citizenship to rebut the alienage element of the crime. It is this Court's opinion that a derivative citizenship claim may be raised to rebut the alienage element.
8 U.S.C. § 1326 (d) limits the availability of collateral attacks on underlying deportation orders. Collateral attacks on deportation proceedings are not allowed unless it can be shown that the deportation proceeding was so procedurally flawed that it effectively eliminated the right of the alien to obtain judicial review, and that such error caused prejudice to the defendant.
"Fair and Just Reason"
Viewing all of the circumstances in this case, the Court finds that the Defendant has shown fair and just reasons for allowing him to withdraw his guilty plea. The applicable law for transmitting citizenship to a child born out of wedlock to a United States citizen father and an alien mother is 8 U.S.C. § 1409 (a). This section provides:
The United States Supreme Court has recently granted certiorari in a case involving an equal protection challenge to Section 1409. See Tuan Anh Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000), cert. granted, 530 U.S. 1305 (Sept. 26, 2000).
The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title shall apply as of the date of birth to a person born out of wedlock if —
(1) a blood relationship between the person and the father established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person's birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years — (A) the person is legitimated under the law of the person's residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court.
If a person satisfies Section 1409(a)'s requirements, then Section 1401(g) applies to that person. Section 1401(g) provides in pertinent part:
The following shall be nationals and citizens of the United States at birth: a person born outside of the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years. . . .
The Defendant has presented this Court with evidence regarding the requirements of Sections 1409(a) and 1401(g). While some of this evidence may be disputed in the future, it nonetheless is sufficient in this Court's view to constitute a "just and fair reason" for the Defendant to withdraw his guilty plea so that a determination on his citizenship status may be determined.
In addition, the Court finds that the following factors weigh in favor of a finding that just and fair reasons exists for allowing the Defendant to withdraw his guilty plea. The Defendant has maintained his innocence based on his derivative citizenship claim. The Defendant entered his guilty plea based on the strong recommendation of his defense counsel, who at the time did not think the Defendant's derivative citizenship claim was viable. The Defendant pled guilty conditionally, retaining or reserving the right to appeal an order denying a previous motion to dismiss which challenged his deportaion. It was only after repeated requests by the Defendant that his defense counsel began to research the Immigration laws and discovered that the Defendant may have a valid defense to the charge. Once the Defendant's attorney made this discovery, he promptly filed the instant motion and provided the Court with the relevant law on the subject. The Court further finds that withdrawal of the Defendant's guilty plea would not prejudice the Government nor would it substantially inconvenience the Court. In addition, the Court finds that the withdrawal would not waste judicial resources. For these reasons, it will be the Recommendation of the undersigned that the Defendant should be allowed to withdraw his guilty plea.
In all fairness to Mr. Patton, who represents the Defendant in this matter, his practice does not regularly subject him to having to research the immigration laws of this country. To say the least, these laws consist of a rather complex and comprehensive statutory and regulatory scheme. Mr. Patton did a fine job in presenting the relevant portions of these statutes to the Court.
CONCLUSION/RECOMMENDATIONS
For the reasons set out above, it is the Recommendation of the undersigned United States Magistrate Judge that the Defendant should be allowed to withdraw his guilty plea because he has shown fair and just reasons for doing so. With regard to the derivative citizenship claim itself, the Court takes no position at this time as to the actual validity of the claim. Rather, the Government must now be put to its burden of proving every element of 8 U.S.C. § 1326 (a) beyond a reasonable doubt, including the element that the Defendant is, indeed, an alien. Thus, it is the further Recommendation of the undersigned that the ultimate issue of the Defendant's derivative citizenship claim should be decided by the trier of fact.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of this Proposed Findings of Fact and Recommendation on all parties by mailing a copy to each of them by Regular Mail. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to this report must serve and file written objections within ten (10) days after being served with a copy unless the time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on the Magistrate Judge and on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendation contained in this report shall bar the party from a de novo determination by the District Court. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in this report within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Serv. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).