United States v. Mansa Baptist

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-1273

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MANSA N. BAPTIST,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 CR 448 — James B. Zagel, Judge.

ARGUED JUNE 6, 2014 — DECIDED JULY 17, 2014

Before BAUER, MANION, and SYKES, Circuit Judges.

BAUER, Circuit Judge. Mansa N. Baptist (“Baptist”) was first

removed1 from the United States to Belize in 1998 after he

signed a stipulated removal order. Afterwards, he illegally

reentered the United States several times; each time he was

1

When the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) was enacted in April 1997, the term “removal” was substituted

for the term “deportation.” For consistency’s sake, we will use the term

“removal” throughout this opinion.

2 No. 14-1273

discovered, he was again removed to Belize. In 2005, Baptist

illegally entered the United States once more and avoided

detection until he was arrested in 2010. Afterwards, he was

charged with being illegally present in the United States after

having been previously removed, in violation of 8 U.S.C.

§ 1326(a). Baptist filed a motion to dismiss the indictment. In

his motion, he collaterally attacked his 1998 removal under

8 U.S.C. § 1326(d), contending that the removal violated his

due process rights. The district court denied Baptist’s motion,

and he appealed. We affirm the district court’s decision.

I. BACKGROUND

Baptist is a native of Belize who entered the United States

as a lawful permanent resident on January 31, 1988. On

September 15, 1992, Baptist pleaded guilty to possession of a

controlled substance and was sentenced to probation. On

February 6, 1995, Baptist was convicted of possession of a

controlled substance after a bench trial and was sentenced to

probation a second time.2 On September 23, 1996, Baptist was

2

The original order of probation, probation documents, presentence

investigation report, and the official statement of facts for Baptist’s 1995

conviction state that he was convicted of possession only. Other documents,

however, including the Illinois Department of Corrections’ mittimus,

automated court records, and the transcript from Baptist’s sentencing

hearing indicate that he was convicted of possession with intent to deliver.

For his 1996 conviction, certified court documents, the presentence

investigation report, and the Illinois Department of Corrections’ mittimus

show that Baptist was convicted of delivery of a controlled substance.

However, transcripts from Baptist’s sentencing hearing reflect that the

judge found Baptist guilty of possession only. Ultimately, whether Baptist’s

(continued...)

No. 14-1273 3

again convicted of possession of a controlled substance after a

bench trial; this time, he was sentenced to five years’ imprison-

ment. At the time, this offense was considered an aggravated

felony. INA § 101(a)(43)(B).

After being released on parole, Baptist received a Notice to

Appear (“NTA”) on October 14, 1998, stating that he had been

placed in removal proceedings due to his earlier controlled

substance conviction. The NTA asserted that Baptist had been

convicted of an offense constituting an aggravated felony drug

trafficking offense as well as a controlled substance offense,

making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (any

alien who is convicted of an aggravated felony at any time is

removable) and 8 U.S.C. § 1227(a)(2)(B)(i) (any alien who has

been convicted of a violation of a law relating to a controlled

substance, other than a single offense involving possession of

marijuana for one’s own use, is removable).

On October 22, 1998, Baptist was given a form titled,

“Respondent’s Stipulated Request for Order Waiver of Hearing

Pursuant to 8 CFR 3.25(b).”3 The stipulated removal order was

written in English, Baptist’s native language, as well as

Spanish. The document explained Baptist’s rights as well as the

consequences of signing the form. Relevant portions of the

removal order state:

2

(...continued)

1995 and 1996 convictions were for possession or possession with intent to

deliver does not affect our analysis. For purposes of this opinion, we will

assume that Baptist was convicted of possession only.

3

The statute is now 8 C.F.R. § 1003.25(b).

4 No. 14-1273

2. I have received a copy of the LIST OF FREE LEGAL

SERVICE PROVIDERS. I am aware that, pursuant to 8

CFR 240.3, I may be represented by an attorney … . I do

not wish to be represented by an attorney … I elect to

represent myself in these proceedings.

3. I understand my right to a personal hearing before

an immigration judge … . I hereby waive th[is] right[],

and request that my removal proceeding[] be conducted

solely by way of written record without a hearing.

5. I do not wish to apply for relief from removal … . I

am not seeking the relief of … cancellation of removal,

… or any other possible relief or other benefits under

the Act.

8. I understand the consequences … are that I will be

removed from the United States. I make this request

voluntarily, knowingly, and intelligently.

10. I waive appeal of the written order of removal

from the United States.

11. I have carefully read or have had read to me in my

native language this entire document, and fully under-

stand its consequences. I am aware that my eventual

removal from the United States will be the result of my

signing this document.

Baptist signed the form. The Immigration Judge (“IJ”)

reviewed the signed stipulated removal order and stated, “I

find, based upon my review of the record in this matter, that

respondent has entered into this stipulation voluntarily,

knowingly and intelligently.” (Baptist never appeared before

No. 14-1273 5

the IJ; he waived his right to do so when he signed the stipu-

lated removal order.) On October 22, 1998, the IJ ordered

Baptist’s removal. Baptist was deported to Belize on

November 9, 1998; he did not appeal the IJ’s order, file a

motion to reopen the proceedings, or file a habeas petition.

Sometime before September 2, 1999, Baptist reentered the

United States without inspection. On April 2, 2002, he was

arrested by Chicago police officers for assault. Police notified

the Immigration and Naturalization Service, and Baptist

received a Notice of Intent/Decision to Reinstate Prior Order.

This notice stated that Baptist was subject to removal based on

the fact that he had illegally reentered the United States after

having been previously removed, and that the Attorney

General intended to reinstate Baptist’s 1998 removal order. The

notice informed Baptist that he could contest the findings

contained therein, but Baptist never did so. He was removed

to Belize a second time on May 9, 2002.

On June 12, 2002, Baptist tried to gain entry to the United

States by falsely stating that he was a United States citizen. He

was apprehended and charged in district court with illegal

reentry in violation of 8 U.S.C. § 1326(a). On September 2, 2002,

he pleaded guilty; on November 8, 2002, he was sentenced to

37 months’ imprisonment. He served his sentence, then was

removed to Belize a third time on February 17, 2005.

On December 22, 2005, Baptist illegally reentered the

United States once again, this time by displaying someone

else’s Indiana driver’s license to border patrol officers in

California. Baptist managed to evade detection for several

years, but was arrested by Chicago police officers on

6 No. 14-1273

August 30, 2010, for possession of cannabis. The police in-

formed Immigration and Customs Enforcement of Baptist’s

presence in the United States. Baptist was indicted on June 12,

2012, and charged with being illegally present in the United

States after being previously removed or deported in violation

of 8 U.S.C. § 1326(a).

On October 10, 2012, Baptist was arrested; thereafter, he

was held in custody.

Baptist entered a conditional guilty plea to the charges, but

reserved his right to appeal. He then filed a motion collaterally

attacking his 1998 removal under 8 U.S.C. § 1326(d), arguing

that the removal violated his due process rights. He claimed

the removal was fundamentally unfair since it was based on

the stipulated removal order he signed without the assistance

of counsel or the opportunity to appear before an IJ. He also

asserted that if he had not signed the stipulated removal order,

he could have applied for relief from deportation under

§ 212(c) of the former Immigration and Nationality Act.

The government responded to Baptist’s motion and

asserted that his removal was not fundamentally unfair. Since

Baptist voluntarily signed the stipulated removal order, the

government argued that he knowingly waived his right to

counsel as well as a hearing before an IJ. Furthermore, the

government argued that Baptist suffered no prejudice as a

result of his removal, because he was ineligible for relief from

removal anyway. The government also stated that Baptist’s

challenge was without merit since he failed to exhaust his

administrative remedies.

No. 14-1273 7

On July 2, 2013, the district court denied Baptist’s motion.

It found that Baptist’s removal was not fundamentally un-

fair, because he willingly signed the stipulated removal order,

waived his rights, and failed to demonstrate the requisite

prejudice. The court stated: “[t]he stipulated [removal] order

fully advised [Baptist] of his rights, … [and Baptist] doesn’t

claim [he was] coerced or tricked into signing the form … . The

stipulation says that he had read [the form] in his native

language, [and] fully understood its consequences … . He

provides no grounds as to why his waiver was not considered

or intelligent … .”

Baptist now appeals the denial of his motion to dismiss.

II. DISCUSSION

This court reviews de novo the denial of a motion to

dismiss an indictment under 8 U.S.C. § 1326(a). United States v.

Arita-Campos, 607 F.3d 487, 491 (7th Cir. 2010); United States v.

Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir. 2006). Section 1326

makes it a crime for a removed alien to enter, attempt to enter,

or be found in the United States without the consent of the

Attorney General. 8 U.S.C. § 1326 (West 2014). Since a prior

removal is necessary for a conviction under § 1326, an alien

may collaterally attack the underlying removal pursuant to the

due process clause. United States v. Mendoza-Lopez, 481 U.S. 828,

837–38 (1987). The defendant bears the burden of proving that

the deportation order was defective. Arita-Campos, 607 F.3d at

490. In order to successfully do so, an alien must demonstrate

that (1) he exhausted all administrative remedies that were

available to him; (2) the deportation proceedings improperly

deprived him of the opportunity for judicial review; and (3)

8 No. 14-1273

the entry of the order was “fundamentally unfair.” 8 U.S.C.

§ 1326(d). While we have yet to expressly state that all three

requirements must be met before an alien can successfully

collaterally attack a prior removal, we have implied as much.

See, e.g., Santiago-Ochoa, 447 F.3d at 1019–20; United States v.

Lara-Unzueta, 735 F.3d 954, 961 (7th Cir. 2013).

In reaching its decision to deny Baptist’s motion to dismiss,

the district court focused primarily on the fundamental fairness

of Baptist’s removal. The court concluded that Baptist’s 1998

removal was not fundamentally unfair since Baptist knowingly

and voluntarily waived his rights by signing the stipulated

removal order. The court declined to reach 8 U.S.C. § 1326(d)’s

other requirements.

Since this case hinges on the fundamental fairness of

Baptist’s 1998 removal proceedings and on the stipulated

removal order he signed, we begin our analysis there.

The term “fundamentally unfair” is never defined in 8

U.S.C. § 1326(d); however, to demonstrate fundamental

unfairness, the defendant must show that there was a due

process violation and that he suffered prejudice as a result of

the removal proceedings. Santiago-Ochoa, 447 F.3d at 1019;

United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994).

A. Due Process Violation

In Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1036 (5th Cir.

1982), the Fifth Circuit stated that “even aliens who have

entered the United States unlawfully are assured the protec-

tions of the fifth amendment due process clause.” While due

process rights can be waived, “such a waiver must be made

No. 14-1273 9

knowingly and voluntarily.” Nose v. Attorney Gen. of the U.S.,

993 F.2d 75, 79 (5th Cir. 1993).

Under well-established principles of contract law, we

usually assume that an individual knowingly and voluntarily

waived his rights if he signed a waiver. 27 Williston on

Contracts § 70:113 (4th Ed. 2009) (“One who signs or accepts a

written contract, in the absence of fraud or other wrongful act

on the part of another contracting party, is conclusively

presumed to know its contents and to assent to them.”).

However, this is not a contract case; Baptist’s constitutional

right to due process is implicated, and deportation is a serious

penalty. When constitutional rights are implicated, more is

required; “[m]eticulous care must be exercised lest the proce-

dure by which [Baptist] is deprived of that liberty not meet the

essential standards of fairness.” Bridges v. Wixon, 326 U.S. 135,

154 (1945).

In this case, Baptist signed a stipulated removal order, in

which he waived his right to appear before an IJ and to appeal

his removal. Stipulated removal orders are governed by 8

C.F.R. § 1003.25(b), which states:

An Immigration Judge may enter an order of deporta-

tion, exclusion or removal stipulated to by the alien …

and the Service. The Immigration Judge may enter such

an order without a hearing and in the absence of the

parties based on a review of the charging document, the

written stipulation, and supporting documents, if any.

If the alien is unrepresented, the Immigration Judge

must determine that the alien’s waiver is voluntary,

knowing, and intelligent. The stipulated request and

10 No. 14-1273

required waivers shall be signed on behalf of the

government and by the alien and his or her attorney or

representative, if any … . A stipulated order shall

constitute a conclusive determination of the alien’s

deportability or removability from the United States.

After reviewing the signed stipulated removal order, the

district court concluded that Baptist knowingly and voluntarily

waived his rights. The court noted that the order was written

in English, Baptist’s native language, and expressly stated, “I

understand the consequences … are that I will be removed

from the United States. I make this request voluntarily,

knowingly, and intelligently.”

Baptist contends, however, that his waiver was not know-

ing and voluntary, since he says he never read the stipulated

removal order before signing it. He argues that the Ninth

Circuit’s decision in United States v. Ramos, 623 F.3d 672 (9th

Cir. 2010), should guide our decision here, but a key issue

distinguishes Ramos from this case. In Ramos, the defendant

signed a stipulated removal order, in which he waived his

right to appeal and to counsel. Id. at 677. He was deported and

later appealed, claiming that he had not knowingly and

intelligently waived his rights. Id. at 679. The Ninth Circuit

agreed, concluding that Ramos’s waiver was not “considered

or intelligent.” Id. at 680. The court noted that Ramos spoke

only Spanish, that the stipulated removal order was never

orally explained to him in Spanish, and that the written

Spanish translation provided to Ramos was inadequate to

ensure that Ramos understood what rights he was waiving. Id.

at 680–81.

No. 14-1273 11

Here, by contrast, the stipulated removal order presented

to Baptist was written in English, Baptist’s native language.

The order clearly stated that Baptist acknowledged receiving

a list of free legal service providers and was informed that he

could be represented by an attorney, but instead chose to

represent himself. The form also stated, “I fully understand …

my right to a personal hearing before an immigration judge

… . Knowing this, I hereby waive th[is] right[], and request that

my removal proceedings be conducted solely by way of

written record without a hearing.”

The form also contained multiple acknowledgments that

defendant was aware of his rights, but knowingly and intelli-

gently waived them. Provision Eight states, “I understand the

consequences of this Stipulated Request for Order, Waiver of

Hearing are that I will be removed from the United States. I

make this request voluntarily, knowingly, and intelligently.”

Provision Eleven states, “I have carefully read or have had

read to me in my native language this entire document, and

fully understand its consequences. I am aware that my even-

tual removal from the United States will be the result of my

signing this document.”

Baptist’s failure to read the form is insufficient to prove his

waiver invalid. It is uncontested that Baptist could read and

understand the form before him, since the form was in English,

his native language. It is also undisputed that the form

explained Baptist’s rights, including his right to counsel, to a

hearing, and to appeal, as well as the fact that he was choosing

to waive those rights. The bottom of the form expressly stated

that defendant had read and understood the form as well as

12 No. 14-1273

the rights he was waiving, and Baptist signed the form.

Though Baptist contends that he was told to “hurry up and

sign [the form] if he wanted to go back to Belize,” he never

asserts that anyone tricked or pressured him into signing the

form; instead, he argues that he should have been represented

by counsel or had the form orally explained to him before his

waiver could be considered knowing and voluntary.

But 8 C.F.R. § 1003.25(b) contains no requirement that an

alien must be represented by counsel or that a stipulated

removal order must be orally explained to him. Instead, the

statute merely requires the IJ to “determine that the alien’s

waiver is voluntary, knowing, and intelligent” if the alien is

unrepresented by counsel. The IJ did so here, stating, “I find,

based upon my review of the record in this matter, that

[Baptist] has entered into this stipulation voluntarily, know-

ingly and intelligently.”

Baptist bore the burden of showing that his 1998 removal

was fundamentally unfair, but he failed to put forth enough

evidence to convince us that the stipulated removal order he

signed was invalid. Therefore, we find no due process viola-

tion.

B. Requisite Prejudice

Even if we were to assume that Baptist’s due process rights

were violated, he still “must establish that [he] was prejudiced,

that is, that the error likely affected the result of the proceed-

ings.” Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir. 2007). Baptist

failed to do so here.

No. 14-1273 13

Before April 1996, the Attorney General, in his discretion,

could waive deportation for an alien who had been convicted

of a crime considered an “aggravated felony” as long as the

alien served a term of imprisonment of less than five years.

INA § 212(c); 8 U.S.C. § 1182(c). However, on April 24, 1996,

the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

was enacted and made relief under INA § 212(c) unavailable to

all aliens who had been convicted of aggravated felonies. Pub.

L. 104–132, 110 Stat. 1214. On April 1, 1997, IIRIRA repealed

INA § 212(c) and replaced it with a new form of relief called

“cancellation of removal.” Pub. L. 104–208, 110 Stat. 3009–546

(1996); 8 U.S.C. § 1229b. However, aliens convicted of aggra-

vated felonies were ineligible for this form of relief. INA

§ 240A; 8 U.S.C. § 1229b.

In I.N.S. v. St. Cyr, the Supreme Court limited the scope of

IIRIRA, holding that aliens who pleaded guilty before the

statute was passed could still obtain relief from removal under

INA § 212(c); the Court, however, said nothing about those

aliens who went to trial and were convicted. 533 U.S. 289, 326

(2001). We have squarely addressed this issue in our circuit and

have held that waivers under INA § 212(c) are available only

to aliens who pleaded guilty prior to the enactment of AEDPA

and IIRIRA, not to aliens who went to trial. Montenegro v.

Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004). In Canto v. Holder,

we explained that eligibility for INA § 212(c) waivers should

not extend to aliens who did not plead guilty prior to the

enactment of AEDPA and IIRIRA since they did not “rel[y]

upon th[e] likelihood of receiving discretionary relief under

section 212(c) in deciding whether to forgo their right to a

14 No. 14-1273

trial … .” 593 F.3d 638, 642 (7th Cir. 2010) (citing I.N.S. v.

St. Cyr, 533 U.S. at 325).

Here, Baptist was convicted in 1995 and 1996 of possession

of a controlled substance. Under the law in effect at the time

of his removal in 1998, Baptist’s prior possession offenses

qualified as aggravated felonies. See, e.g. Matter of Yanez-Garcia,

23 I&N Dec. 390, 398 (BIA 2002) (holding that felony posses-

sion qualifies as an aggravated felony); Fernandez v. Mukasey,

544 F.3d 862, 874 (7th Cir. 2008) (holding that multiple state

possession convictions make an alien removable as an aggra-

vated felon). Though the law has since changed and Baptist’s

possession offenses no longer constitute aggravated felonies

under 8 U.S.C. § 1101(a)(43)(B), the law in effect at the time of

Baptist’s challenged removal is what matters to our analysis.

Since Baptist’s offenses constituted aggravated felonies in 1998,

Baptist was neither eligible for cancellation of removal, nor

could he have applied for discretionary relief under INA

§ 212(c).

The Supreme Court’s decision in St. Cyr cannot save

Baptist’s prejudice claim either. Section 212(c) waivers are

only available to aliens who pleaded guilty prior to the

enactment of AEDPA and IIRIRA; Baptist did not plead guilty

to his 1995 and 1996 possession offenses, but was convicted

after bench trials. Since Baptist cannot demonstrate the

prejudice necessary to sustain a collateral attack on his 1998

deportation, his claim must fail.

No. 14-1273 15

C. Exhaustion of Administrative Remedies and the

Opportunity for Judicial Review

Since Baptist failed to establish that his removal proceed-

ings were fundamentally unfair, we need not reach 8 U.S.C.

§ 1326(d)’s other requirements—exhaustion of administrative

remedies and the opportunity for judicial review.4

III. CONCLUSION

Baptist bore the burden of proving that his 1998 removal

proceedings were defective under 8 U.S.C. § 1326(d), but could

not do so. He failed to establish that his removal proceedings

were “fundamentally unfair,” so we AFFIRM the decision of

the district court.

4

Even if we were to do so, it would not assist Baptist. To satisfy 8 U.S.C.

§ 1326(d), “an alien must have filed a motion to reopen, appealed to the

Board of Immigration Appeals, and pursued all other administrative

remedies available to him.” United States v. Cazares, 2011 WL 612723 *3

(C.D. Ill. 2011) (citing Arita-Campos, 607 F.3d at 491).

Baptist did none of these; he never appealed his sentence, filed a motion

to reopen, or filed a habeas petition. Baptist argues that since he never read

the stipulated removal order before signing it, was not provided with an

attorney, and was not orally informed of his rights, he was unaware of his

right to appeal, and so should not be faulted with failure to exhaust his

administrative remedies.

But the stipulated removal order clearly outlined Baptist’s right to

appeal. When Baptist signed the form, he waived that right; his failure to

read the form does not exempt him from 8 U.S.C. § 1326(d)'s exhaustion

requirement.