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
March 1, 2011
No. 10-50176 Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
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. Â§ 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 Â§ 1326 was improper.
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. Â§Â§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F), that
is, as a ?crime of violence? under 18 U.S.C. Â§ 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, 652 (5th Cir. 1999), withdrawn, 222
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. Â§ 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.
Â§ 16(b) and therefore did not constitute an aggravated felony for purposes of
Â§ 1101(a)(43)(F) and United States Sentencing Guidelines Manual Â§ 2L1.2,
which employs the Â§ 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 Â§ 16(b) and Â§ 1101(a)(43)(F) would also have
established that Villanueva-Diaz's conviction was not a removable offense under
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.
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
(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
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. Â§ 1101(a)(43)(O) (defining ?aggravated felony? to
include a conviction under Â§ 1326); 8 U.S.C. Â§ 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
Â§ 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.
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. Â§ 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.? Â§ 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. Â§ 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
Â§ 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.? Â§ 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
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
(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
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. Â§Â§ 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.?
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 Â§Â§ 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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