United States v. Villanueva-Diaz

Case: 10-50176 Document: 00511397581 Page: 1 Date Filed: 03/01/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 1, 2011

No. 10-50176 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTONIO VILLANUEVA-DIAZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before GARZA, STEWART, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Antonio Villanueva-Diaz appeals from his conviction for unlawfully

reentering the United States following removal in violation of 8 U.S.C. § 1326.

Villanueva-Diaz, formerly a lawful permanent resident alien in the United

States, was ordered removed by an immigration judge (“IJ”) in October 1998

after his third conviction under Texas state law for driving while intoxicated

(“DWI”). The Board of Immigration Appeals (“BIA”) affirmed the removal order

in November 1999, and Villanueva-Diaz was removed to Mexico in November

2000. He was found in the United States in 2009 and charged with unlawful

reentry. Villanueva-Diaz contends that his 1999 removal order was obtained

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unconstitutionally such that his indictment for violating § 1326 was improper.

We AFFIRM.

I. Facts and Procedural History

In September 1975, Antonio Villanueva-Diaz, a native and citizen of

Mexico, was admitted into the United States as a lawful permanent resident.

In April 1997, Villanueva-Diaz pleaded guilty in Texas state court to his third

DWI offense, a felony, and received a nine-year suspended sentence. However,

in September 1997, he pleaded true to the allegation that he had violated the

terms of his supervision, and the nine-year term of imprisonment was enforced.

In June 1998, removal proceedings were instituted against Villanueva-

Diaz based upon the allegation that his DWI conviction qualified as an

“aggravated felony” under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F), that

is, as a “crime of violence” under 18 U.S.C. § 16.1 During the removal

proceedings, Villanueva-Diaz was represented by attorney Patrick Dunne. The

IJ ordered Villanueva-Diaz to be removed to Mexico in accordance with that

allegation and denied his application for cancellation of removal. On November

4, 1999, the BIA affirmed the IJ’s decision.

In its decision, the BIA cited to this court’s then-binding decision in

Camacho-Marroquin v. INS, 188 F.3d 649, 652 (5th Cir. 1999), withdrawn, 222

1

Section 1227(a)(2)(A)(iii) provides that an “alien who is convicted of an aggravated

felony at any time after admission is deportable.” Section 1101(a)(43) in turn defines

“aggravated felony,” including both a range of specified offenses and a residual definition in

subsection (F), namely: “a crime of violence (as defined in [18 U.S.C. § 16], but not including

a purely political offense) for which the term of imprisonment [is] at least one year.” Section

16 offers the relevant substantive definition:

The term “crime of violence” means—

(a) an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of another

may be used in the course of committing the offense.

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F.3d 1040 (5th Cir. 2000), in which we held that a Texas felony DWI offense was

a crime of violence that qualified as an aggravated felony, thereby rendering an

alien convicted of that offense removable. Camacho-Marroquin was withdrawn

at the alien’s request on July 11, 2000. 222 F.3d at 1040. On November 2, 2000,

Villanueva-Diaz was removed from the United States. On March 1, 2001, this

court held in United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001),

that a Texas felony DWI offense is not a crime of violence as defined by 18 U.S.C.

§ 16(b) and therefore did not constitute an aggravated felony for purposes of

§ 1101(a)(43)(F) and United States Sentencing Guidelines Manual § 2L1.2,

which employs the § 1101(a)(43) definition. Although Chapa-Garza was a

sentencing appeal, no one disputes that, had Chapa-Garza been decided before

Villanueva-Diaz’s original removal, our holding that Texas felony DWI was not

a crime of violence under § 16(b) and § 1101(a)(43)(F) would also have

established that Villanueva-Diaz’s conviction was not a removable offense under

§ 1227(a)(2)(A)(iii).

In July 2009, Villanueva-Diaz was found in a county jail in Texas. He was

charged with being unlawfully present in the United States after being

previously removed. He filed a motion to dismiss the indictment alleging that

he was denied due process in his removal proceedings because Dunne had never

informed him of the BIA’s decision and Villanueva-Diaz never received a copy

of the BIA’s decision. He alleged that, if he had known of the BIA’s affirmance,

he would have filed a petition for review and could have benefitted from this

court’s ruling in Chapa-Garza, which would have had the effect of restoring his

legal resident status and preventing his removal. Villanueva-Diaz further noted

that, subsequent to his removal, Dunne had been disbarred based upon Dunne’s

deficient representation of several other clients.

Other than materials from the immigration proceeding itself, the only

evidence presented in the district court regarding what happened in his

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immigration proceeding came from Villanueva-Diaz’s declaration in which he

stated that he appeared before the IJ and was ordered deported. He then states

that his “lawyer told me that he was going to appeal the decision. I never heard

from the lawyer again. I never learned what happened to my appeal. On

November 2, 2000, immigration agents took me from the jail and deported me

to Mexico. They told me that I had lost my appeal. If I had known that I could

appeal my deportation order, I would have asked my family to continue the

appeal.” The district court record also contains a copy of Dunne’s 2002

disbarment order; Dunne did not testify or file an affidavit in the district court.

The immigration record reveals that Dunne did, in fact, file an appeal of

the IJ’s ruling to the BIA and lost. Notice of the BIA’s decision was sent to him.

No evidence suggests that Dunne did not receive the BIA’s decision in time to

appeal the case to our court.

After conducting a hearing on the motion, the district court denied

Villanueva-Diaz’s motion to dismiss. Although the district court noted that the

result was “very inequitable,” the court found that Dunne’s neglect in failing to

forward the BIA decision to Villanueva-Diaz or to file a petition for review on his

behalf could not be attributed to the government. Accordingly, the district court

stated that it was “left with no choice but on legal grounds to deny the motion

to dismiss the indictment.”

Villanueva-Diaz entered a conditional guilty plea to the sole charge

against him, thereby preserving his right to appeal the denial of his motion to

dismiss. The district court sentenced him to time served and one year of

supervised release. Villanueva-Diaz filed a timely notice of appeal.

II. Standard of Review

We review de novo the district court’s denial of Villanueva-Diaz’s motion

to dismiss the indictment as well as his underlying constitutional claims. See

United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007). We accept all factual

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findings made by the district court in connection with that ruling unless clearly

erroneous. See United States v. Thomas, 15 F.3d 381, 382–83 & n.4 (5th Cir.

1994).

III. Discussion

A. Jurisdiction

The question of whether an appeal is moot is jurisdictional. United States

v. Lares-Meraz, 452 F.3d 352, 354–55 (5th Cir. 2006) (per curiam). “This Court

must raise the question of mootness sua sponte when, as here, it is not raised by

a party, and the Court reviews the question de novo.” Id. at 355.2 By the time

of oral argument in this case, Villanueva-Diaz had only a few days of supervised

release left, and that time has now expired. The conclusion of his supervised

release raises the question of whether Villanueva-Diaz’s appeal is moot. We

conclude that it is not.

As Villanueva-Diaz notes, he is not challenging the term of supervised

release in and of itself, which challenge might be mooted by the passage of time.

Instead, he is challenging his conviction, from which he contends he continues

to suffer collateral consequences. The Supreme Court has recognized a

presumption “that most criminal convictions do in fact entail adverse collateral

legal consequences,” and that “[t]he mere ‘possibility’ [of such consequences] is

enough to preserve a criminal case from ending ignominiously in the limbo of

mootness,” even after the immediate legal consequences—that is, the criminal

sentence—have expired. See Sibron v. New York, 392 U.S. 40, 55 (1968)

(internal quotations omitted); see also Spencer v. Kemna, 523 U.S. 1, 11–12

(1998) (affirming validity of Sibron presumption).

The Government’s arguments to the contrary are unavailing here. First,

the Government cites United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th

2

We noted this issue and requested supplemental briefing from the parties.

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Cir. 2007), in which we held that the appellant’s appeal of his sentence was moot

because he had “completed his term of imprisonment and ha[d] been deported.”

Id. at 383. By contrast, here, Villanueva-Diaz seeks the vacatur of his conviction

and dismissal of the indictment against him. Second, the Government argues

that Villanueva-Diaz in fact suffers no collateral consequences from his

conviction because he resides in Mexico and not the United States. Villanueva-

Diaz does not, however, reside in Mexico willingly, and he would eventually be

able to reapply for admission to the United States but for his criminal conviction

in this case. See 8 U.S.C. § 1101(a)(43)(O) (defining “aggravated felony” to

include a conviction under § 1326); 8 U.S.C. § 1182(a)(9)(A)(i), (ii) (rendering

aliens convicted of aggravated felonies permanently inadmissible to the United

States). We have previously held that the admissibility bar imposed by

§ 1182(a)(9)(A) is a “concrete disadvantage” that avoids mootness. See Alwan v.

Ashcroft, 388 F.3d 507, 511 (5th Cir. 2004). Accordingly, we conclude that this

appeal is not moot.

B. Merits

1. Exhaustion

The Government argues that Villanueva-Diaz’s collateral attack on his

removal must fail because Villanueva-Diaz did not first exhaust his

administrative remedies as required by 8 U.S.C. § 1326(d)(1). The Government

suggests that Villanueva-Diaz should have filed a motion to reopen with the

BIA. We conclude that Villanueva-Diaz was not required to do so on the facts

of this case. By its terms, the statute only requires an alien to “exhaust[] any

administrative remedies that may have been available to seek relief against the

[challenged] order.” § 1326(d)(1) (emphasis added). Villanueva-Diaz’s

uncontroverted testimony was that he only became aware of the facts giving rise

to his collateral challenge while being physically removed from the United

States; once removed, the BIA would have refused to take jurisdiction of his

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motion to reopen. See 8 C.F.R. § 1003.2 (“A motion to reopen . . . shall not be

made by or on behalf of a person who is the subject of . . . removal proceedings

subsequent to his or her departure from the United States.”); see also Navarro-

Miranda v. Ashcroft, 330 F.3d 672, 675–76 (5th Cir. 2003) (affirming BIA’s

interpretation of predecessor regulation as jurisdictional as reasonable). The

reopening procedure of which the Government contends Villanueva-Diaz should

have availed himself was not “available” to him within the meaning of

§ 1326(d)(1); thus that subsection poses no bar to our review of Villanueva-Diaz’s

challenge on the merits.

2. Fundamental Unfairness

By statute, Villanueva-Diaz must show that “the deportation proceedings

at which the [removal] order was issued improperly deprived [him] of the

opportunity for judicial review[,] and [that] the entry of the order was

fundamentally unfair.” § 1326(d)(2), (3). This rule effectively codifies the

Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828

(1987), which, as interpreted by our precedent, permits a collateral

constitutional challenge if the alien can “establish that (1) the prior hearing was

‘fundamentally unfair’; (2) the hearing effectively eliminated the right of the

alien to challenge the hearing by means of judicial review of the order; and (3)

the procedural deficiencies caused the alien actual prejudice.” United States v.

Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000). The question to which the

parties’ argument was primarily directed is whether the prior hearing was

“fundamentally unfair.”

Villanueva-Diaz’s sole contention on appeal is that he was denied due

process under the Fifth Amendment because his attorney’s negligence prevented

him from appealing the BIA’s ruling to this court. During oral argument,

Villanueva-Diaz’s current counsel vociferously disclaimed any argument that the

Fifth Amendment imports a freestanding right to effective assistance of counsel

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in a civil case. Such an argument, no doubt, would run headlong into Coleman

v. Thompson, 501 U.S. 722 (1991), where the Court found no right to effective

assistance of counsel in a civil habeas case despite its use to challenge a criminal

conviction. Id. at 752–54. In any event, we need not consider such a broad,

general claim given Villanueva-Diaz’s failure to advance it. Nor need we

consider whether there can ever be a circumstance where an attorney’s neglect

is such that his client’s due process rights are violated in a civil case.

Instead, we turn to the argument presented here—that Villanueva-Diaz’s

lack of personal notice of the BIA’s decision rendered the proceedings against

him “fundamentally unfair.” The essence of “due process” is notice and a fair

opportunity to be heard. See, e.g., United States v. Lopez-Ortiz, 313 F.3d 225,

230 (5th Cir. 2002) (citing Kwong Hai Chew v. Colding, 344 U.S. 590, 597–98

(1953)). Yet Villanueva-Diaz does not attack the fairness of any of the fora

which were available to him: the original immigration court, the BIA, or this

court. His argument, instead, is that he personally failed to received notice of

the BIA’s decision because of his attorney’s neglect, and that this failure on his

attorney’s part rendered the proceedings against him “fundamentally unfair.”

Villanueva-Diaz points to some of our prior decisions, arguing that these

cases support his “fundamental fairness” argument. See Berthold v. INS, 517

F.2d 689, 690–92 (5th Cir. 1969); Paul v. INS, 521 F.2d 194, 197–201 (5th Cir.

1975); Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001); Assaad v.

Ashcroft, 378 F.3d 471, 475–76 (5th Cir. 2004); Mai v. Gonzales, 473 F.3d 162,

165 (5th Cir. 2006). In reality, none of these cases holds that the ineffective

assistance—nor, indeed, any action or inaction—on the part of a petitioner’s own

privately-retained counsel in an immigration proceeding in fact violates the Fifth

Amendment’s due process requirement.3 The state of our precedent is thus

3

The holding in each of the cases cited avoids, often explicitly, this question. We have

done so by: (1) assuming that such a right might exist but finding no violation of it on the facts

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accurately and succinctly summarized in Mai: “Although an alien has no Sixth

Amendment right to effective counsel during removal proceedings, this court has

repeatedly assumed without deciding that an alien’s claim of ineffective

assistance may implicate due process concerns under the Fifth Amendment. . . .

[T]he source and extent of this due process right remain unclear.” 473 F.3d at

165 (internal citations omitted). Any suggestion our prior decisions make to the

contrary, cf. Goonsuwan, 252 F.3d at 385 n.2 (“[An alien’s] right to due process

is violated when ‘the representation afforded them was so deficient as to impinge

upon the fundamental fairness of the hearing, and that, as a result, the alien

suffered substantial prejudice.” (citing Paul, 521 F.2d at 198)), is “dicta.”

Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).

Turning to the actual process provided for Villanueva-Diaz’s proceeding,

we find that, by regulation, notice of the BIA decision was required to be sent to

the attorney if an immigrant was represented by counsel. 8 C.F.R. §§ 292.5(a),

1292.5(a). The “unfairness” of which Villanueva-Diaz complains stems from the

BIA’s compliance with this regulation in his case. We discern nothing

“fundamentally unfair” about such a procedure. Indeed, the same or similar

notice rule is in place in the federal courts and all the state courts within our

circuit. See F ED. R. A PP. P. 25(b) (“Service on a party represented by counsel

must be made on the party’s counsel.”); F ED. R. C IV. P. 5(b)(1) (“If a party is

represented by an attorney, service under this rule must be made on the

attorney unless the court orders [otherwise].”); T EX. R. C IV. P. 21a; M ISS. R. C IV.

of the case, see Paul, 521 F.2d at 197–201; (2) resolving the case on other grounds entirely, see

Goonsuwan, 252 F.3d at 390–91(dismissing for failure to exhaust); Berthold, 517 F.2d at

690–92 (finding argument waived); (3) acknowledging that the BIA has the authority to choose

to vacate immigration orders for attorney misconduct regardless of whether the Fifth

Amendment requires it do so, and then assessing the BIA’s compliance with its own procedure

as a matter of process and administrative law, see Mai, 473 F.3d at 165; or (4) finding that the

alien sought only discretionary relief in which he had no liberty interest protectable under the

Fifth Amendment, see Assaad, 378 F.3d at 475–76.

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P. 5(b)(1); L A. C ODE C IV . P ROC . A NN. art. 1313. The rule that contact with a

represented party should be through his lawyer is so well established in

American jurisprudence that attorneys are generally prohibited by ethical rules

from contact with the opposing party if represented by counsel. See generally

M ODEL R ULES OF P ROF’L C ONDUCT R. 4.2 (2002); see also T EX. D ISCIPLINARY

R ULES OF P ROF’L C ONDUCT R. 4.02 (2005).

We cannot find a process that is so entrenched in our system of justice to

be “fundamentally unfair.” Simply put, the process provided for Villanueva-Diaz

outlined a course of action—notice to counsel for a represented party of a BIA

decision—which is fair and which was followed. Villanueva-Diaz received the

process he was due from the Government.4 The cause of any further unfairness

is attributable to Villanueva-Diaz’s retained counsel alone. As for errors of his

own counsel, Villanueva-Diaz has articulated no basis for us to distinguish the

clear instruction of Coleman that “the attorney is the petitioner’s agent when

acting, or failing to act, in furtherance of the litigation, and the petitioner must

[therefore] bear the risk of attorney error” absent a constitutional right to

effective assistance of counsel—which Villanueva-Diaz disclaims—that would

allow us to impute that error to the government. 501 U.S. at 753–54 (citing

Link, 370 U.S. at 634). Under the circumstances of this case, we conclude that

the district court did not err in finding that Villanueva-Diaz’s deportation

proceedings were not “fundamentally unfair.”

4

Imputing notice to counsel to his client is consistent with general principles of agency

applicable to the attorney-client relationship: a client “is deemed bound by the acts of his

lawyer-agent.” Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962) (finding no violation of

due process in dismissal of civil suit for failure to prosecute based on attorney error); see also

Ogunfuye v. Holder, 610 F.3d 303, 306 n.3 (5th Cir. 2010) (noting that §§ 292.5 and 1292.5 are

proper in light of Link).

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3. Speculative Prejudice

Even were we to assume arguendo that Villanueva-Diaz’s attorney’s

failure to notify him of the BIA’s decision could support a claim of lack of

fundamental fairness, Villanueva-Diaz cannot establish prejudice. He concedes

that he would have to show deficient conduct on the part of his counsel as well

as prejudice. To show “prejudice” in this context, Villanueva-Diaz would have

had to demonstrate that there is “a reasonable likelihood that but for the errors

complained of [he] would not have been deported.” United States v. Benitez-

Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999). While we agree that Dunne

should have told him of the BIA decision and his option to petition this court for

review, we note that “what would have happened next” is an exceedingly

speculative inquiry under the timeline here. At the time the BIA decision came

down, our jurisprudence was clear that Villanueva-Diaz’s DWI conviction was

an aggravated felony. Thus, in this same hypothetical conversation that Dunne

should have had with Villanueva-Diaz about the BIA’s decision, he would also

have had to inform Villanueva-Diaz that Fifth Circuit precedent was squarely

against him. It is sheer speculation to say that Villanueva-Diaz would then have

proceeded on, perhaps pro se from his prison cell, and “would have been Chapa-

Garza” as his current counsel contended at oral argument. Thus, while we now

have the benefit of hindsight, judged at the time of the BIA decision, Villanueva-

Diaz’s case was wholly foreclosed, and his attorney’s advice not to file an appeal

would not have been a wholesale deprivation of due process.

We understand the district judge’s consternation that this “seems

inequitable” given the benefit of hindsight. Our review over immigration

decisions is not as a “court of equity.” Nor is that our role in a criminal appeal

seeking to collaterally attack an immigration decision. As a three-time DWI

offender who unlawfully reentered the United States rather than applying for

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readmission, Villanueva-Diaz is not altogether an innocent bystander to his

problems. In any event, the result reached is what the law requires.

For the foregoing reasons, we AFFIRM.

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