                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-4-2009

USA v. Richardson
Precedential or Non-Precedential: Precedential

Docket No. 07-4409




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                               PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               _______________

                    No: 07-4409
                  _______________

             DARVIN E. RICHARDSON,

                           Appellant

                           v.

          UNITED STATES OF AMERICA
               _______________

On Appeal from the District Court of the Virgin Islands
               (D.C. No. 07-cr-00018)
  Chief District Judge: Honorable Curtis V. Gómez
                  _______________

              Argued December 8, 2008

Before: FISHER, JORDAN, and STAPLETON, Circuit
                    Judges.

               (Filed : March 04, 2009 )
                  _______________
Thurston T. McKelvin
Jesse A.Gessin [ARGUED]
Federal Public Defender’s Office
P.O. Box 1327
51B Kongens Gade
Charlotte Amalie ,St. Thomas
 USVI , 00804-1327
       Counsel for Appellant

Anthony J. Jenkins
Ishmael A. Meyers, Jr. [ARGUED]
United States Attorney’s Office
5500 Veterans Building , Suite #260
Charlotte Amalie, St Thomas
USVI 00802-6924
      Counsel for Appellee
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Darvin E. Richardson appeals from a judgment of
conviction on one count of illegal re-entry after deportation,
in violation of 8 U.S.C. § 1326(a) and (b)(2). Richardson
contends that the District Court wrongly decided that he could
not collaterally challenge his prior deportation. For the
reasons that follow, we will affirm.



                              2
I.     Background

        Richardson was arrested on November 30, 1989, in St.
Thomas, after attempting to smuggle marijuana onto the
island aboard a commercial flight. He subsequently pled
guilty to one count of Importation of a Controlled Substance,
in violation of 21 U.S.C. § 952, and one count of Possession
of a Controlled Substance Aboard an Aircraft Arriving in the
United States, in violation of 21 U.S.C. § 955. He was
sentenced to four months imprisonment on each count, the
terms to run concurrently, and three years of probation. At
the time of judgment, Richardson had been lawfully admitted
for permanent residency in the United States for almost ten
years and he claimed to have children who were U.S. citizens.

      Upon entry of the criminal judgment in March of 1990,
Richardson was released for time served. Two months later,
in May of 1990, the government initiated deportation
proceedings, serving Richardson with an Order to Show
Cause, Notice of Hearing, and Warrant for Arrest of Alien.

        On May 21, Richardson, then unrepresented by
counsel, signed a waiver (the “May Waiver”) in which he
stipulated to the charges against him, accepted deportability,
requested immediate departure to St. Kitts, and waived his
right to appeal the deportation order. That stipulation was
voided, however, when Hans Burgos, an attorney for the
United States Immigration and Naturalization Service (“INS”)
in Puerto Rico, crossed out and initialed key paragraphs in it.
After speaking with Richardson, Burgos had become
convinced that Richardson “was not aware, nor was he well

                               3
informed, of the consequences of signing the stipulation.”
(App. at 23.)

         The next day, May 22, David Iverson entered his
appearance as counsel for Richardson and, soon thereafter, on
June 19, Richardson again signed a waiver (the “June
Waiver”). It was identical in content to the May Waiver.
Richardson says that he does not recall either Iverson or an
immigration judge explaining to him the effect of the waiver.
A Mr. R. Ortiz, an INS attorney, signed the June Waiver on
behalf of the United States.1 The document does not contain a
signature line for Richardson’s counsel and Iverson did not
sign it.

      The United States Department of Justice sent
Richardson a letter, which is dated June 22, 1990, (the
“Deportation Letter”) and contains the following paragraph:

      Should you wish to return to the United States
      you must write this office or the American
      Consular Office nearest your residence abroad
      as to how to obtain permission to return after
      deportation. By law ... any deported person who
      within five years returns without permission is
      guilty of a felony. If convicted he may be
      punished by imprisonment of not more than two
      years and/or a fine of not more than $1,000.00.



      1
          Mr. Ortiz’s first name does not appear in the record.

                                4
(App. at 27.) On or about the same day, Richardson was
deported to St. Kitts.

        Some seventeen years later, Richardson tried to return
to St. Thomas. On March 6, 2007, he flew to the island but
was detained at the airport when he showed his valid British
passport and his name triggered an alert that he had
previously been convicted of a controlled substances violation
and had been deported. According to Richardson, the mother
of his children had wrongly informed him that he could
legally enter the Virgin Islands without having obtained the
Attorney General’s consent. On April 4, he was indicted on
one count of unlawful entry into the United States, in
violation of 8 U.S.C. § 1326(a) and (b)(2).

        Richardson filed a motion to dismiss the indictment.
In particular, he collaterally attacked his deportation; he
claimed that the United States Sentencing Guidelines
pertaining to § 1326(b)(2) are unconstitutional; and he argued
that the government should be collaterally estopped from
charging him under § 1326(a) because of representations that
it had made in the Deportation Letter. The District Court held
a series of hearings on the motion. Neither Iverson nor any
INS attorneys who worked on the matter testified as to what
had transpired during Richardson’s deportation proceedings.
On June 22, 2007, the District Court denied Richardson’s
motion to dismiss,2 concluding that he could not collaterally


      2
       The court entered an amended order on June 25 in
which it corrected a mistake as to Richardson’s birthday but

                              5
attack his deportation and that his challenge to the Sentencing
Guidelines and his collateral estoppel argument had to await
later proceedings. Richardson appeals only the conclusion
that he cannot press a collateral attack of his deportation.

II.    Discussion 3

        At the heart of Richardson’s appeal is his claim that the
June Waiver is not valid because it was not intelligently
executed. Not only does Richardson contest the validity of
the June Waiver, he also claims that, by presuming it to be
valid, the District Court improperly shifted the burden of
proof as to waiver from the government to him. Richardson
contends that he is permitted to collaterally challenge his



made no substantive changes. We review that amended order
for purposes of this opinion.
       3
         The District Court of the Virgin Islands had
jurisdiction over this case pursuant to 18 U.S.C. § 3231 and
48 U.S.C. § 1612(a). We have jurisdiction pursuant to 28
U.S.C. § 1291. We review de novo the District Court’s
determination that Richardson may not collaterally challenge
his deportation. United States v. Charleswell, 456 F.3d 347,
351 (3d Cir. 2006) (citing United States v. Torres, 383 F.3d
92, 95 (3d Cir. 2004)). The District Court’s factual findings
are reviewed for clear error while we exercise plenary review
over its interpretations of law. Charleswell, 456 F.3d at 351
(citing United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002)).

                               6
deportation because, first, he is exempted from any
requirement regarding exhaustion of administrative remedies,
second, the District Court’s determination that he waived his
right to judicial review is erroneous, and, third, his
deportation proceeding was fundamentally unfair. Because
Richardson’s collateral attack on his deportation is premised
on the invalidity of the June Waiver, we address at the outset
the threshold issues of whether the District Court improperly
placed the burden of proving invalidity on Richardson and
whether the June Waiver is valid. Then we turn to the merits
of Richardson’s collateral attack.

       A.     The June Waiver Was Intelligently Executed
              and is Valid

        We have not before addressed whether the government
has the burden of proving the validity of a written waiver in
an immigration proceeding or whether the burden falls on the
alien to prove that the waiver is invalid. We do so now and
conclude that the burden is properly placed on the alien.

        An alien validly waives his rights associated with a
deportation proceeding only if he does so voluntarily and
intelligently. See United States v. Mendoza-Lopez, 481 U.S.
828, 840 (1987) (“Because the waivers of their rights to
appeal were not considered or intelligent, respondents were
deprived of judicial review of their deportation proceeding.”);
United States v. Sosa, 387 F.3d 131, 136 (2d Cir. 2004)
(waiver of right to administrative review of deportation will
bar collateral review under 8 U.S.C. § 1326(d) only when it is
voluntary and intelligent); c.f. United States v. Muro-Inclan,

                               7
249 F.3d 1180, 1183 (9th Cir. 2001) (Section 1326(d)’s
exhaustion requirement “cannot bar collateral review of a
deportation proceeding when the waiver of right to an
administrative appeal did not comport with due process.”).
However, such appellate rights and administrative remedies
can be waived, and one way to signify a knowing and
intelligent waiver is a written document to that effect. Other
circuit courts, as well as the District Court here, have
exercised the presumption that, when there is a written
waiver, the waiver is valid, thereby implicitly placing the
burden on the alien of proving any claim that the waiver was
invalid. C.f. United States v. Martinez-Rocha, 337 F.3d 566
(6th Cir. 2003) (considering appellant’s evidence that his
waiver was unintelligent); United States v. Rangel de
Aguillar, 308 F.3d 1134, 1137 (10th Cir. 2002) (“[Appellant]
presented no evidence to demonstrate ... that the waiver she
gave was not knowing and voluntary.”).4

       Contrary to Richardson’s suggestion, we do not regard
the result reached here by the District Court as in conflict with
the decision of the Ninth Circuit Court of Appeals in United


       4
        The government would have us draw the same
inference from United States v. Encarnacion-Galvez, 964
F.2d 402, 406 (5th Cir. 1992). However, such an
interpretation would be inappropriate as that court was merely
reciting the government’s argument that “[appellant] failed to
show ... that his waiver ... [was] unknowing and
unintelligent,” rather than endorsing a theory of burden
allocation. 964 F.2d at 406.

                               8
States v. Lopez-Vasquez, 1 F.3d 751, 753-54 (9th Cir. 1993).
In any event, we find ourselves unpersuaded by the rationale
of that case. The Lopez-Vasquez Court held that “the
government bears the burden of proving the waiver,” id., and
that evidence of a mass, silent waiver was insufficient alone
to carry that burden. The waiver at issue in Lopez-Vasquez
was neither written nor individual. There, the immigration
judge asked, “Gentlemen, if any of you do not understand
about appeal, or if you have any questions about appeal,
please stand now so that I can talk to you.” Id at 753. After
no one in the assembled group rose, the judge continued, “If
any of you want to appeal your case to the higher court, ...
please stand so that I can talk with you about that.” Id.
Again, no one rose. In rejecting the government’s argument
that the waiver was knowing and intelligent, the Court
focused upon the particular risks created by such mass silent
waivers:

      The immigration judge made no effort to
      determine whether Lopez-Vasquez individually
      wished to waive his right to appeal, and the
      mass waiver by silence made it impossible to
      determine whether he made a voluntary and
      intelligent decision to do so. Mass silent waiver
      creates a risk that individual detainees will feel
      coerced by the silence of their fellows. The
      immigration judge’s directive that to preserve
      the right to appeal a detainee must stand up “so
      that I can talk to you about that” did nothing to
      lessen this risk. Indeed, it tended to stigmatize
      detainees who wished to appeal and to convey a

                              9
       message that appeal was disfavored and
       contingent upon further discussion with the
       immigration judge.

Id. at 754. Given this focus on the risk inherent in the
particular process before it, we are not confident that the
Lopez-Vasquez Court would have found a signed, written
waiver which expressly acknowledged the required
understanding, insufficient to carry the government’s initial
burden of proof and shift that burden to the alien.

       Moreover, in reaching its conclusion in Lopez-
Vasquez, the Court relied on the Supreme Court’s discussion
of waiver in Brewer v. Williams, 430 U.S. 387 (1977), a case
reviewing a criminal proceeding on a petition for habeas
corpus. However, in a dissent from the order denying
rehearing en banc in Lopez-Vasquez, Judge O’Scannlain and
six other judges of the Ninth Circuit correctly pointed out that
reliance on Brewer is misplaced in the immigration context
and that the Lopez-Vasquez opinion is thus logically flawed.
See id. at 758.

       The Lopez-Vasquez panel drew a false parallel between
the nature of the right protected by the Supreme Court in
Brewer and that at issue in a waiver of administrative
remedies and appellate rights in a deportation proceeding.
Brewer concerned a right “indispensable to the fair
administration of our adversary system of criminal justice[,]”
430 U.S. at 398, namely a criminal defendant’s right to
counsel, and, given the constitutional foundation of that right,
the Supreme Court placed the heavy burden of demonstrating

                               10
any waiver of it on the government. Id. at 398-402. In Lopez-
Vasquez, the dispute involved, as it does here, an alien’s
waiver of a “statutory right to judicial review of the result of a
civil deportation proceeding.” Lopez-Vasquez, 1 F.3d at 758
(O’Scannlain, J., dissenting from denial of rehearing en banc)
(original emphasis). We have long recognized that
deportation proceedings are civil in nature and that the rights
and protections afforded to the defendant are therefore
decidedly different from those available in the criminal
context. See Torres, 383 F.3d at 103 (“[T]he procedural
protections accorded to [aliens] in that context [i.e. removal
proceedings] measure less than the panoply available to a
criminal defendant.”). There is no sound basis to equate
either the kind of rights or the nature of the proceedings at
issue in Brewer with those at issue in Lopez-Vasquez, and the
Lopez-Vasquez per curiam opinion suggests none. Nor, for
that matter, does Richardson. We therefore reject his
insistence that the burden of proof described in Brewer “is no
different in the context of deportations.”

       On the contrary, there is a distinction between
fundamental constitutional rights – including the right to
counsel at issue in Brewer – and rights granted by statutes,
such as the administrative and appellate rights at issue here.
See Northern Pipeline Const. Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 83 (1984) (acknowledging line of cases for
“recognition of a critical difference between rights created by
federal statute and rights recognized by the Constitution”).
Indeed, even when constitutional rights are at stake, not all
waivers are judged by the same standard. See Schneckloth v.
Bustamonte, 412 U.S. 218, 235 (1973) (“Our cases do not

                               11
reflect an uncritical demand for a knowing and intelligent
waiver in every situation where a person has failed to invoke
a constitutional protection.”). The placement of the burden of
proof, like the standard for waiver, can be variable and
contingent on the source of the right in play. See Northern
Pipeline, 458 U.S. at 84 (Where Congress has created a right,
“it clearly has the discretion, in defining that right, to create
presumptions, or assign burdens of proof”).

        It may be helpful to begin by recognizing that, in the
first instance, the burden of proving waiver in this case was
on the government and that it carried its burden by producing
the written waiver signed by Richardson. Richardson’s
decision to contest that waiver required more of him than his
mere assertion that the waiver should not count. It required
him to provide reasons and supporting evidence to explain
why the waiver should not be given effect. In sum, we
conclude that, when challenging the validity of a written
waiver of rights in a deportation proceeding, the alien bears
the burden of proving that the waiver is invalid.5 Since


       5
        Section 1326(d) plainly states that an alien may not
challenge a deportation order’s validity unless he or she
“demonstrates” that all three statutory prerequisites are
satisfied, one of which is exhaustion of any administrative
remedies. Therefore, the statutory language supports placing
the burden of proof on the alien to demonstrate that a written
waiver of rights is invalid where, as here, the alien argues that
he or she is exempted from exhausting any administrative
remedies.

                               12
Richardson had that burden with respect to the June Waiver,
we turn to whether he has carried it.

        Richardson contends that the June Waiver was invalid
because he was not notified of his administrative remedies
prior to signing it. As proof, he relies heavily on the notation
that INS attorney Burgos made when voiding the May
Waiver, the notation saying that Richardson had not been
“aware” or “well informed” of the consequences of signing
that stipulation. Richardson also attacks the June Waiver
because his attorney did not sign it, and because the
Immigration Judge allegedly failed to inform him that he
might be eligible for discretionary relief under section 212(c)
of the Immigration and Naturalization Act (“INA”), 8 U.S.C.
§ 1182(c) (1995) (repealed by Illegal Immigrant Reform and
Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208,
Div. C, § 304(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-597).
None of those arguments is sufficient.

       First, Burgos’s cancellation of the May Waiver shows
at most only what Richardson knew in May, not what he had


       Given the civil nature of deportation proceedings, an
alien seeking to demonstrate the invalidity of a written waiver
will be held to a “preponderance of the evidence” standard.
See United States v. Martinez-Amaya, 67 F.3d 678, 682 n.5
(8th Cir. 1995) (“[A]pplication of a ‘preponderance of the
evidence’ standard of proof to an alien’s collateral attack
upon a prior deportation seems appropriate to us, in light of
the fact that a deportation proceeding is civil in nature.”).

                               13
learned by June. In the intervening month, he was
represented by counsel and had further interactions with INS
officials who presumably were aware of and not eager to
replicate the defects their colleague Mr. Burgos had
discovered in the May Waiver. It is entirely possible that
Richardson was fully informed in June and simply decided
that he wished to return to St. Kitts. As conceded by his
counsel at oral argument, that possibility is as likely as any
other explanation for his decision to sign the June Waiver,
and, once we place the burden of proof on Richardson, his
argument on this front fails.

       Next, Richardson contends that the June Waiver should
have been signed by his counsel, and we agree that would
have been the better course, but that does not mean the waiver
is invalid. The omission of a signature line for an attorney of
record betrays a less than careful approach to memorializing
the parties’ agreement, but it is not an error of constitutional,
statutory, or even regulatory dimension.

        Finally, with regard to the Immigration Judge’s failure
to inform Richardson of potential relief under § 212(c), we
have clearly stated before that “there is no constitutional right
to be informed of possible eligibility for discretionary relief.”
Bonhometre v. Gonzales, 414 F.3d 442, 448 n.9 (3d Cir.
2005) (citing Torres, 383 F.3d at 105-06).6


       6
        We also note that even when an alien satisfies the
objective criteria for relief under § 212(c) – meaning that (1)
he is the spouse, parent, or child of a U.S. citizen or lawful

                               14
       B.     Richardson May Not Collaterally Attack His
              Deportation.

       Having determined that Richardson has not proven his
waiver to be invalid, we turn to his final contention on this
appeal, that his deportation is subject to collateral attack.
“Fundamental precepts of due process provide an alien
subject to illegal re-entry prosecution under 8 U.S.C. § 1326
with the opportunity to challenge the underlying removal
order under certain circumstances.” Charleswell, 456 F.3d at
351. To mount a collateral challenge to his deportation, an
alien must prove that, first, he “exhausted any administrative
remedies that may have been available to seek relief against
the [deportation] order;” second, “the deportation proceedings
at which the order was issued improperly deprived the alien of
the opportunity for judicial review;” and, third, “the entry of
the order was fundamentally unfair.” 8 U.S.C. § 1326(d)
(2008) (codifying Mendoza-Lopez, 481 U.S. at 835-37
(1987)). Richardson bears the burden of proof as to each
element of that tripartite test, see Torres, 383 F.3d at 99, but
he has not carried it as to any part.




permanent resident; (2) deportation would result in extreme
hardship to that spouse, parent, and/or child; (3) the alien’s
admission would not undermine national welfare or security –
relief is ultimately granted only at the discretion of the
Attorney General.

                              15
              1.     Exhaustion of Administrative
                     Remedies

        Richardson does not contend that he has exhausted his
administrative remedies as required by § 1326, but rather that
he is exempted from the exhaustion requirement. He claims
exemption on three bases: that the June Waiver was invalid;
that the ineffective assistance of his counsel rose to the level
of a due process violation; and that the INS lawyers created a
conflict of interest by communicating with him. However,
none of those contentions is supported by the record. First, as
already discussed, nothing in the record undermines the facial
validity of the June Waiver. As to Richardson’s second
claim, he has failed to produce any evidence that would
permit us to conclude that his counsel was ineffective by Fifth
Amendment standards.7 Similarly, while Richardson
contends that INS attorneys created a conflict of interest by


       7
         Because the Sixth Amendment right to counsel is
inapplicable in immigration proceedings, the question is
whether Richardson’s counsel was so ineffective as to violate
his Fifth Amendment due process rights. See Xu Yong Lu v.
Ashcroft, 259 F.3d 127, 130 (3d Cir. 2001). We note that it is
unclear whether ineffective assistance of counsel constitutes
an exception to the exhaustion requirement of § 1326. More
broadly, we have yet to determine whether the exhaustion
requirement is prudential, and therefore subject to exception,
or jurisdictional. Because we conclude that Richardson has
failed to produce evidence that his counsel was ineffective,
we do not reach either of those issues.

                               16
directly informing him of his rights despite his having been
represented by counsel, there is no proof in the record to
support that or any other allegation of a conflict.

              2.     Opportunity for Meaningful Judicial
                     Review

        Likewise, Richardson’s claim that he was denied
meaningful judicial review of his deportation proceedings
because his counsel was not informed of Richardson’s own
intent to sign the June Waiver is unsupported by the record.
Richardson correctly points out that a failure to notify counsel
that counsel’s client is facing removal proceedings has been
found to deprive the represented alien of meaningful judicial
review. See United States v. Dorsett, 308 F. Supp. 2d 537,
543-44 (D.V.I. 2003) (due process violated where clerical
error resulted in notice being provided to incorrect counsel).
However, Richardson has not shown that the INS failed to
notify his counsel of the immigration proceedings. Moreover,
in contradiction to his contention that his attorney was not
notified about the June Waiver, Richardson concedes in his
briefing that it is “unclear” whether Mr. Iverson was given
notice. In short, Richardson has not proven that he was
deprived of the opportunity for meaningful judicial review.

              3.     Fundamental Unfairness

       To establish that a deportation proceeding was
fundamentally unfair, an alien must show both that there was
a fundamental defect in the proceeding and that the defect
caused him prejudice. See Charleswell, 456 F.3d at 358. An

                               17
alien can show that the proceedings had a fundamental defect
by demonstrating either that he was deprived of a substantive
liberty or property interest or that the INS violated procedural
protections “such that the proceeding is rendered
fundamentally unfair.” Id. at 360. Nothing in Richardson’s
deportation proceedings constitutes a flaw of that nature.
While Richardson raises a litany of purported procedural
defects, all bearing on whether he was adequately informed of
his rights to a hearing or administrative appeal, the issues
raised are plainly covered by the June Waiver. Because the
June Waiver is effective, those procedural defects cannot
serve as the basis for a claim of fundamental unfairness.
Further, Richardson’s contention that his deportation
proceeding was fundamentally unfair because he was not
informed of his eligibility for § 212(c) relief is belied by our
holding in Torres, in which we concluded that, because there
is no due process right to be informed of the possibility of
discretionary relief, a failure to inform does not render a
deportation proceeding fundamentally unfair. See 383 F.3d at
106.8


       8
        We acknowledge that it is an open issue in this
Circuit whether an alien can demonstrate prejudice by
showing that there is a reasonable likelihood that relief under
§ 212(c) would have been granted by the Attorney General,
had the alien been adequately informed. However, we need
not reach the issue of whether Richardson has demonstrated
prejudice because we have already determined both that there
was no fundamental defect in the deportation proceedings and
that Richardson has failed to meet his burden on either the

                               18
III.   Conclusion

       Richardson has failed to meet his burden of
demonstrating that the June Waiver was invalid and has
further failed to demonstrate the prerequisites for collaterally
attacking his deportation. We therefore will affirm the
judgment and conviction entered by the District Court.




exhaustion or opportunity-for-judicial-review prongs of the
collateral attack inquiry laid out in § 1326(d).


                               19
