United States v. Gonzalez-Villalobos

To satisfy 8 U.S.C. § 1326(d)(2), the defendant must show actual or constructive inability to seek judicial review, and the inability must be related to an alleged error in the deportation proceedings; denial of an evidentiary hearing does not satisfy this requirement.

Encarnacion Gonzalez-Villalobos was convicted for illegal reentry to the United States after a prior deportation in violation of 8 U.S.C § 1326(d). On appeal, Gonzalez-Villalobos needed to show that he was deprived of the opportunity to exhaust his administrative remedies to satisfy § 1326(d)(1) and deprivation of the opportunity to seek judicial review to satisfy § 1326(d)(2). Gonzalez-Villalobos argued that his underlying deportation order was invalid because it was based upon convictions Immigration and Naturalization Service agents unlawfully found in his “special agricultural worker” file, and there was no evidentiary hearing regarding how agents obtained this evidence. Gonzalez-Villalobos satisfied 8 U.S.C § 1326(d)(1) because he appealed the Immigration Judge’s decision to the Board of Immigration Appeals. The denial of an evidentiary hearing is not an error that, by its nature, affected Gonzalez-Villalobos’s ability or awareness to seek judicial review. Also, Gonzalez-Villalobos did seek judicial review when he filed a petition for a writ of habeas corpus. Gonzalez-Villalobos wanted the Ninth Circuit to find that he had the right to “meaningful review of the underlying deportation,” and without prior judicial review, he was now entitled to it as grounds for deprivation of judicial review. The Ninth Circuit rejected this argument because it was based upon a misreading of United States v. Mendoza-Lopez and § 1326(d)(2). Mendoza-Lopez held that when foreclosure of judicial review is based upon defects in administrative proceeding, alternative means of obtaining judicial review must be available. The panel concluded that Gonzalez-Villalobos’s attack against his previous deportation order could not be sustained because he did not meet his burden of showing that he was improperly deprived of an opportunity for judicial review due to an error related to his deportation proceeding. Because § 1326(d)(2) was not satisfied, the panel affirmed Gonzalez-Villalobos’s conviction and denied his motion to dismiss. AFFIRMED.