United States v. Estrada - 876 F.3d 885 (6th Cir. 2017)

Rule:

INA § 212(h), 8 U.S.C.S. § 1182(h), provides that the Attorney General may, in his discretion, waive inadmissibility for certain aliens with criminal convictions if he is satisfied that denying the alien's admission would result in extreme hardship to the alien's spouse, child, or parent who is a U.S. citizen or lawful resident, and if the Attorney General, in his discretion, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status. 8 U.S.C.S. § 1182(h)(1)(B), (2). The statute's plain language is clear: relief under § 1182(h) is discretionary. And when suspension of deportation is discretionary, it does not create a protectable liberty or property interest. There is a circuit split on this question, with the majority of circuits holding that an alien has no constitutional right to be informed of eligibility for, or to be considered for, discretionary relief. 

Facts:

In November 2007, undercover officers attempting a controlled purchase of methamphetamine arrested Emilio Estrada, a Mexican citizen, upon finding meth in his pocket and a rifle and ammunition in his car. He eventually pleaded guilty to possession of a firearm by an unlawful user of a controlled substance, and the district court sentenced him to 12 months' imprisonment plus two years of supervised release. Owing to this conviction for an aggravated felony, Estrada—a green-card holder but not a U.S. citizen—was ordered to appear in immigration court for removal proceedings. At his first appearance, Estrada confirmed he understood his rights as read by the Immigration Judge to a group of respondents. He then advised the Immigration Judge that he had retained counsel; Estrada's counsel (Vincent Anderson), however, was neither present nor had he entered an appearance, and the judge continued the case. Estrada appeared again several weeks later with his newly retained counsel (Luke Abrusley), who admitted the facts alleged in the Notice to Appear and conceded Estrada's removability. Noting the unavailability of other relief, the Immigration Judge ordered Estrada removed to his home country of Mexico. Estrada waived his right to appeal, and he was deported in March 2009. Six years later, law enforcement discovered Estrada in the United States without permission. A federal grand jury charged him with two counts of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Estrada moved to dismiss the indictment via a collateral attack on the underlying deportation order, arguing that the Immigration Judge violated his due process rights by failing to advise him of the possibility of discretionary relief from removal under § 212(h) of the Immigration and Nationality Act (INA). He filed an amended motion to dismiss making similar arguments, but the district court found no due process violation and thus denied both motions. Undeterred, Estrada amended once more. He again collaterally attacked the deportation order on due process grounds, newly alleging that he received ineffective assistance of counsel because his attorneys "failed to advise him of or present to the Immigration Court his eligibility for relief from deportation" under INA § 212(h). Reiterating that Estrada had no constitutionally-protected liberty interest in securing discretionary relief, the district court denied the motion. Estrada ultimately pleaded guilty to one count of illegal reentry. As part of his plea agreement, he reserved the right to appeal the denials of his motions to dismiss. Estrada timely appealed. His challenge hinged on collaterally attacking his original removal proceedings.

Issue:

Were Estrada’s due process rights violated when his attorneys failed to advise him of or present to the Immigration Court his eligibility for relief from deportation under 8 U.S.C.S. § 1182(h)?

Answer:

No

Conclusion:

The court held that Estrada’s collateral attack on the deportation order underlying his conviction for unlawful reentry was unsuccessful pursuant to 8 U.S.C.S. § 1326(d) because he failed to establish any fundamental unfairness. He claimed that his due process rights were violated when his attorneys failed to advise him of or present to the Immigration Court his eligibility for relief from deportation under 8 U.S.C.S. § 1182(h). However, relief under 8 U.S.C.S. § 1182(h) was discretionary, so no protectable liberty or property interest was created.