Opposition Brief — Granados-Mondragon v. Immigration & Naturalization Service

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No. 01-1877 |

LRA H

In the Supreme Court of the United States

ANTONIO GRANADOS-MONDRAGON, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

DONALD E. KEENER

LINDA S. WERNERY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

~ QUESTION PRESENTED

Whether an alien who pleads guilty to a criminal

charge of entering the United States unlawfully and

without inspection, in violation of 8 U.S.C. 1325(a), is

collaterally estopped from relitigating in a later de-

portation proceeding the issue of whether he entered

the United States.

(I)

TABLE OF CONTENTS

Page

Opinions below ........s.ssssssseesseesseneens senhviaaliiinteoacee 1

Juv i@diction ....<cce.creccccorsccesecsscsscssessenseseecessosccvesonsesesossssssseseasoscessocess 1

Beatemne¥4»nt, .....<.vcorercrsccsecsercccescsvcescessensevsnesesscorerensssceevevecscesossosocoooseese 2

AYQUMEE ....scovnssssseconsvssseossersssssersnnenscssonsnssscooes isciohdiicibstaiataets 5

COMCUIBION <ccececsccceveccesccevecsescscessosecesocnesesneesceonenesensesecsovonsesseseoessesoes 11

TABLE OF AUTHORITIES

Cases:

Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir.),

cert. denied, 479 U.S. 949 (1986) ......sssssssssesssseersesneneeeeees 8

Bower v. O’Hara, 759 F.2d 1117 (3d Cir. 1985) .........0.0+ 8

Brazzell v. Adams, 493 F.2d 489 (5th Cir. 1974) ........00+++ 7

Fontneau v. United States, 654 F.2d 8 ons Cir.

1981) ....... iat elinnnnipinehanattuenppebeetnioes 7

Gray v. Commissioner, 708 F.2d 243 (6th Cir. 1983),

cert. denied, 466 U.S. 927 (1984) ......-.cssscssssssessrssnesesneneerenes 6,7

Haring v. Prosise, 462 U.S. 306 (1983) ......sessecceseseneeneens 5,9

Ivers v. United States, 581 F.2d 1362 (9th Cir.

IID oases evcensicasisvmenscnsicevennosesavonsonastatbenevonseqeeneeniennonsssenesesoneeneess 7

Marroquin-Manriquez v. INS, 699 F.2d 129 (3d Cir.

1983), cert. denied, 467 U.S. 1259 (1984) .......ssssssssesseeseeens 8

McCarthy v. United States, 394 U.S. 459 (1969) ..........000 6

Menna v. New York, 423 U.S. 61 (1975) ......sscsscssseeesesreees 6

Otherson v. Department of Justice, 711 F.2d 267

(D.C. Cir. 1988) .....sccsssscsscscsssssssccsecsecessessssssnssncssensonsensscsnencasens 10

Plunkett v. Commissioner, 465 F2d 299 (7th Cir.

TOTTI. crcevecsesssrnsnsecevsesensenrersenvecsscesovonensescosveenneveveveneassnesssosocosease 7

Raiford, In re, 695 F.2d 521 (11th Cir. 1983) «1... 7

Rina, In re, 15 1. & N. Dec. 346 (BIA 1975) .......ss:-seesseeseeees 8

United States v. Gallardo-Mendez, 150 F.3d 1240

(10th Cir. 1998) ‘ 9

United States v. Podell, 572 F.2d 31 (2d Cir.

1978) sis cescuaiaiienteaoitnialisincingiicsinninieninnntaiin 7

(IIT)

Cases—Continued:

United States v. Section 18, 976 F.2d 515 (9th Cir.

RIB nverecoseeusevsrnninmnnnmnqneninaintenenteesantaqahenniiinmneninenannt

RTD ween ccesvsarscnsientensieinenyinatesnituinetuiinstiioniotsieniantiashanasinesin

Statutes and rules:

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

§ 241(a)(1)(B), 8 U.S.C. 1251(a)(1)(B) (1994) .......

§ 241(a)(1)(E)(i), 8 U.S.C. 1251(a)(1)(E)G@)

(1994) .. stonieeenapeanianiemonanbiaenenanete

SSG, BEG. TRI cssstinesnnensnsorenesnnnenpincnimninnennnornengy

§ STECa), BS UIC. LEREER). nceoccrrccensererersrenseseennenenvene

BE TE, SI wierccenscrnerenninicienenneintionnnnninmnnsanmanntinnnin

Fed. R. Crim. P.:

ED TINGED. <icsssccssceotnieniiatneceidianiniicibaniatiichnninaianabiiaiiagiiiniane

Advisory committee note (1974) .......cccssesssssessees

sececcece

Sececeee

Page

7-8

Jn the Supreme Court of the Anited States

No. 01-1877

ANTONIO GRANADOS-MONDRAGON, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The memorandum opinion of the court of appeals

(Pet. App. la-3a) is not reported in the Federal

Reporter, but is reprinted at 28 Fed. Appx. 695. The

decisions of the Board of Immigration Appeals (Pet.

App. 4a-6a) and the immigration judge (Pet. App. 7a-

15a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on -

January 17, 2002. A petition for rehearing was denied

on March 26, 2002 (Pet. App. 16a). The petition for a

writ of certiorari was filed on June 21, 2002. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. Petitioner is a Mexican citizen. Pet. App. 5a.

According to petitioner, he first entered the United

States in 1979, when he illegally crossed the border into

California. A.R. 252 (petitioner’s application for sus-

pension of deportation). Petitioner represents that he

left the United States and returned unlawfully four

more times between 1980 and 1988. Jbid. Petitioner

became a lawful permanent resident of the United

States in 1990. Pet. 4.

2. On July 22, 1991, the United States filed a crimi-

nal complaint against petitioner in the United States

District Court for the Southern District of California,

charging him with misdemeanor unlawful entry into the

United States in violation of 8 U.S.C. 1325. A.R. 153.

Section 1325(a) provides in pertinent part:

Any alien who (1) enters or attempts to enter the

United States at any time or place other than as

designated by immigration officers, or (2) eludes

examination or inspection by immigration officers

* * * shall, for the first commission of any such

offense, be fined under title 18 or imprisoned not

more than 6 months, or both.

8 U.S.C. 1325(a). The criminal complaint in petitioner’s

case alleged that, on or about July 20, 1991, petitioner

“did knowingly and willfully enter the United States at

a time and place other than as designated by immi-

gration officers, and elude examination and inspection

by immigration officers.” A.R. 153.

Petitioner, who was represented by counsel, pleaded

guilty to the complaint after being informed of the

charges. A.R. 152 (judgment of conviction). Petitioner

was sentenced to 45 days’ imprisonment and a fine of

$10.00. Ibid.

3. The Immigration and Naturalization Service

(INS) charged petitioner with being deportable from

the United States under former Section 241(a)(1)(B) of

the Immigration and Nationality Act (INA), 8 U.S.C.

1251(a)(1)(B) (1994), for having entered the United

States without inspection on or about July 20, 1991.

A.R. 285-287. At a hearing held before an immigration

judge on May 28, 1992, the INS offered into evidence

certified copies of the criminal complaint against peti-

tioner and petitioner’s judgment of conviction. A.R. 66,

69, 151-153. A Border Patrol Agent testified that, on

July 20, 1991, he observed petitioner and a woman

“climb[] down the international boundary fence, r[uJn

across a drag road and towards the area [known as] the

projects and then * * * exit[] the area of the projects

and enter[] a vehicle.” Pet. App. 18a.

Petitioner, however, disputed that he entered the

United States unlawfully on July 20, 1991. Petitioner

testified at the hearing that he arranged in Mexico for

his wife to be smuggled over the border, and then

crossed into the United States through an inspection

station, met his wife along the border, and helped her

up from the ground after she fell from the border fence.

A.R. 117, 121-123. Petitioner testified that he pleaded

guilty to entering the United States unlawfully and

without inspection because he desired a swift resolution

of the criminal matter. A.R. 122. Based upon peti-

tioner’s testimony, the INS lodged an additional charge

that petitioner is deportable pursuant to former Section

241(a)(1)(E)(i) of the INA, 8 U.S.C. 1251(a)(1)(E)@)

(1994), for aiding and abetting an alien’s unlawful entry

or attempted unlawful entry into the United States.

A.R. 146.

On July 27, 1993, the immigration judge ordered peti-

tioner deported. Pet. App. 15a. Although the immi-

gration judge determined (id. at 9a-12a) that in the

circumstances of this particular case the doctrine of

collateral estoppel should not be applied to bar a re-

determination of whether petitioner made an unlawful

entry into the United States, he found on the merits (id.

at 13a) that petitioner’s account of the events on July

20, 1991, was not credible and that petitioner “did in

fact enter the U.S. by crawling over the border fence”

with his wife and thus was deportable for entering the

United States without inspection. The immigration

judge also found petitioner deportable on the charge

of aiding and abetting his wife’s illegal entry. Jd. at

13a-14a.

4. The Board of Immigration Appeals (BIA) dis-

missed petitioner’s appeal. Pet. App. 4a-6a. The BIA

concluded that petitioner’s criminal conviction for un-

lawful entry sufficed under the doctrine of collateral

estoppel to establish that petitioner entered the United

States without inspection. Jd. at 5a. The BIA held that

“the threat of jail and the possibility of deportation

were ample motivation for [petitioner] to fully litigate

the issue” of his entry into the United States in the

criminal proceeding. Jbid. The BIA further deter-

mined that the issue of petitioner’s unlawful entry into

the United States “is the same in both proceedings.”

Ibid. The BIA determined that petitioner is also de-

portable on the aiding-and-abetting charge and that he

is ineligible for relief from deportation. Jd. at 6a.

5. In a petition for judicial review, petitioner chal-

lenged his deportability for having entered the United

States without inspection, arguing that the BIA erred

in applying the doctrine of collateral estoppel to bar him

from relitigating the issue of whether he entered the

United States unlawfully on July 20, 1991. The court of

appeals denied the petition in an unpublished memo-.

randum. Pet. App. la-3a. Citing “settled law * * *

that a guilty plea may be used to establish issue pre-

clusion in a subsequent civil suit,” the court of appeals

affirmed the BIA’s application of collateral estoppel in

this case. Id. at 2a (quoting United States v. Section 18,

976 F.2d 515, 519 (9th Cir. 1992)).

The court of appeals determined that the BIA used

petitioner’s criminal conviction only “to preclude [peti-

tioner] from relitigating the issue of whether he

entered the country without inspection in violation of

[the INA],” and that such use of the conviction was

sufficient to support petitioner’s deportation for

entering the United States without inspection. Pet.

App. 3a. The court rejected petitioner’s argument that

Haring v. Prosise, 462 U.S. 306 (1983), renders collat-

eral estoppel inapplicable to guilty pleas. Pet. App. 2a.

The court also rejected petitioner’s claim that, because

his sentence in the criminal case was “relatively minor,”

petitioner lacked motivation to litigate the criminal

charge, and the criminal conviction therefore should not

support collateral estoppel in the deportation pro-

ceeding. Id. at 3a. The court of appeals emphasized

that, even though petitioner was sentenced to “only” 45

days’ imprisonment, he could have been sentenced to

imprisonment for as much as six months, which pro-

vided ample motivation to litigate the charge. Ibid.

Senior Judge Politz of the Fifth Circuit, sitting by

designation, dissented without opinion. Pet. App. 2a

n.*, 3a.

ARGUMENT _

Petitioner pleaded guilty to entering the United

States unlawfully and without inspection on or about

July 20, 1991, in violation of 8 U.S.C, 1825. Pet. 5; A.R.

151-158. By pleading guilty, petitioner admitted that

he entered the United States without inspection—the

same fact that he now disputes. The court of appeals’

unpublished decision upholding the Board of Immi-

gration Appeals’ application of collateral estoppel in

this case is correct and does not conflict with any

decision of this Court or of another court of appeals.

Furthermore, the BIA held that petitioner is inde-

pendently deportable for having aided and abetted his

wife’s illegal entry. The court of appeals did not disturb

that ruling, and petitioner does not challenge it here.

For all of these reasons, review by this Court is not

warranted,

1. As this Court has held, “a guilty plea is an ad-

mission of ail the elements of a formal criminal charge.”

McCarthy v. United States, 394 U.S. 459, 466 (1969); see

Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per

curium) (“{A] counseled plea of guilty is an admission of

factual guilt so reliable that, where voluntary and

intelligent, it quite validly removes the issue of factual

guilt from the case.”). Under Rule 11 of the Federal

Rules of Criminal Procedure, a federal trial judge may

not accept a guilty plea to a criminal offense unless he

satisfies himself that there is a factual basis for the

plea. See Fed. R. Crim. P. 11(f) & advisory committee

note (1974); McCarthy, 394 U.S. at 467.

The courts of appeals accordingly have determined

that, for purposes of collateral estoppel, a federal con-

viction following a guilty plea “is as much a conviction

as a conviction following jury trial.” Gray v. Commis-

sioner, 708 F.2d 243, 246 (6th Cir. 1983), cert. denied,

466 U.S. 927 (1984). Therefore, a federal guilty plea and

ensuing conviction collaterally estop a litigant from

relitigating in a federal civil proceeding any material

facts or elements necessarily established by the plea.

See United States v. Wight, 839 F.2d 198, 195 (4th Cir.

1987) (guilty plea to accepting gratuities estops ex-

officia! in later civil suit to recover gratuity amounts);

Gray, 708 F.2d at 246 (guilty plea to federal income tax

evasion establishes fraud in subsequent civil tax fraud

proceeding); In re Raiford, 695 F.2d 521, 523-524 (11th

Cir. 1983) (guilty plea to bankruptcy fraud bars reliti-

gation of factual issues in bankruptcy proceeding);

Fontneau v. United States, 654 F.2d 8, 10 (1st Cir. 1981)

(guilty plea and conviction for federal income tax

evasion has preclusive effect in civil suit); /vers v.

United States, 581 F.2d 1862, 1867 (9th Cir, 1978) (facts

necessarily determined by conviction based on guilty

plea cannot be relitigated in forfeiture proceeding);

United States v. Podell, 572 F.2d 31, 35 (2d Cir, 1978)

(“It is well-settled that a criminal conviction, whether

by jury verdict or guilty plea, constitutes estoppel in

favor of the United States in a subsequent civil pro-

ceeding as to those matters determined by the judg-

ment in the criminal case.”); Brazzell v. Adams, 493

F.2d 489, 490 (5th Cir. 1974) (guilty plea to selling

heroin estops prisoner from arguing, in action under 42

U.S.C. 1983, that he engaged in transaction with the

belief that he was assisting state agents); Plunkett v.

Commissioner, 465 F.2d 299, 305-306 (7th Cir. 1972)

(convictions for tax evasion pursuant to guilty plea

collaterally estops defendant from denying fraud in civil

tax fraud proceedings).

Consistent with those decisions, the BIA has for

almost 50 years adhered to the rule that an alien’s

guilty plea and conviction in a criminal proceeding

estops the alien from relitigating, in a subsequent de-

portation proceeding, a determination of fact necessary

to the criminal conviction. See Jn re Z, 5 I. & N. Dec.

708, 709-711 (BIA 1954) (alien who pleaded guilty to

procuring visa by false statement precluded from

relitigating issue of whether he entered United States

without valid visa). It likewise is well-settled in BIA

precedent that a criminal conviction for illegal entry

into the United States collaterally estops the alien from

relitigating the fact of unlawful entry. See Jn re Rina,

15 I. & N, Dec. 346, 346-347 (BIA 1975).

Two courts of appeals have addressed the specific

question presented in this case. Both have upheld the

BIA’s determination that a guilty plea in a prosecution

under 8 U.S.C, 1825(a) for unlawfully entering the

United States estops the alien from disputing in a later

deportation proceeding that he entered the country

illegally. Pet. App. 2a-8a; Marroquin-Manriquez v.

INS, 699 F.2d 129, 186 (8d Cir. 1988), cert. denied, 467

U.S. 1259 (1984). Petitioner identifies no judicial de-

cision that resolves that issue differently.

2. Petitioner attempts—in the face of that uniform

authority—to show a circuit conflict. Pet. 10-17. Peti-

tioner’s attempt lacks merit. In Bower v. O’Hara, 759

F.2d 1117 (1985), and Anela v. City of Wildwood, 790

F.2d 1063, cert. denied, 479 U.S. 949 (1986), the Third

Circuit addressed the preclusive effect of guilty pleas

under territorial and state law, respectively. See

Bower, 759 F.2d at 1124-1126 (discussing American

Law Institute debates, as indicative of Virgin Islands

law); Anela, 790 F.2d at 1068-1069 (New Jersey law).

Those Third Circuit cases do not involve the preclusive

effect of a federal conviction in a federal administrative

proceeding. The Third Circuit addressed the specific

issue raised by petitioner in Marroquin-Manriquez,

which accords with the Ninth Circuit’s decision in this

case.

In United States v. Gallardo-Mendez, 150 F.3d 1240

(1998), on which petitioner also relies (Pet. 11), the

Tenth Circuit addressed the question of whether a

guilty plea has collateral estoppel effect in a later crimi-

nal prosecution. The Tenth Circuit specifically distin-

guished cases applying collateral estoppel doctrine in

the civil context (150 F.3d at 1244-1245), stating that

“while wise pablic policy and judicial efficiency may be

sufficient reasons to apply collateral estoppel in civil

cases, they do not have the same weight and value in

criminal cases” (id. at 1244 (internal quotation marks

omitted)).

8. As the court of appeals correctly held (Pet. App.

2a), its decision in this case does not conflict with

Haring v. Prosise, 462 U.S. 306 (1983). In Haring, this

Court held that a Virginia prisoner who pleaded guilty

to a state-law drug offense was not thereby precluded

from challenging, in a suit under 42 U.S.C. 1983, the

lawfulness of the search that led to his arrest. Looking

to Virginia law, the Court concluded that the doctrine

of collateral estoppel would not be applied by courts in

that State under those circumstances. 462 U.S. at 316.

The Court noted that the guilty plea did not amount to

“actual[] litigat{ion]” of the issues underlying the

criminal conviction, but further explained that the

prisoner’s plea did not bar his civil suit because the plea

did not involve any issue on which the prisoner had

to prevail in order to win his Section 1983.action. Ibid.

The Court observed that “(t]he only question raised by

the criminal indictment and determined by [the

prisoner’s] guilty plea * * * was whether [the

prisoner] unlawfully engaged in the manufacture of a

controlled substance,” which “is simply irrelevant to the

legality of the search under the Fourth Amendment or

to [the prisoner’s] right to compensation from state

officials under § 1983.” Ibid. In this case, by contrast,

petitioner seeks to relitigate the unlawful-entry issue

that was framed by the criminal indictment and

necessarily determined by his guilty plea in a federal

court. Haring therefore is inapposite.

Petitioner nevertheless relies (Pet. 18, 20-21) upon

a 19-year-old decision, Otherson v. Department of

Justice, 711 F.2d 267 (1983), in which the D.C. Circuit

“questioned,” in light of Haring, “whether ‘a live debate

remains over the preclusive effect of guilty pleas.’”

Pet. 21 (quoting Otherson, 711 F.2d at 277 n.11). Yet

the Otherson court acknowledged that Haring’s

“actual[] litigat[ion]” language “was broader than

needed to decide the issue” in the case before this

Court. 711 F.2d at 275 n.8. Furthermore, the D.C.

Circuit’s discussion of Haring was dictum. Ibid.

Neither the D.C. Circuit nor any other court of appeals

has held that Haring bars collateral estoppel in civil

proceedings—much less in administrative deportation

proceedings—based upon a federal conviction obtained

by a plea of guilty. |

4, Petitioner’s claim that giving collateral estoppel

effect to guilty pleas undermines Rule 11 of the Federal

Rules of Criminal Procedure (Pet. 22-24) likewise lacks

merit. The BIA has given collateral estoppel effect to

guilty pleas in immigration proceedings for almost 50

years, and the courts of appeals have uniformly sus-

tained the application of collateral estoppel in civil

proceedings, all without any indication of an adverse

effect on the process of accepting guilty pleas under

Rule 11.

5. Finally, it is highly unlikely that—as petitioner

argues (Pet. 2)—the disposition of this petition will

affect “[t]he course of [petitioner’s] life.” The immi-

gration judge found on the merits, without reliance

upon collateral estoppel, that petitioner is deportable

because he “did in fact crawl over the border fence” on

July 20, 1991. Pet. App. 18a. Furthermore, the BIA

affirmed the immigration judge’s determination that

petitioner also is deportable because he aided and

abetted his wife’s illegal entry. Jd. at 6a. In light of

those determinations, it is highly unlikely that peti-

tioner would avoid deportation from the United States

even if the collateral estoppel issue were resolved in his

favor.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.