United States v. Eziquio Calderon-Medina, United States of America v. Evaristo Rangel-Gonzales

The district courts in these consolidated appeals dismissed indictments against Calderon-Medina and Rangel-Gonzales for illegal re-entry following deportation, a violation of 8 U.S.C. § 1326 (1976), because the Immigration and Naturalization Service (INS) had violated at least one of its own regulations-in the deportation proceedings. On appeal by the government, the primary issue is whether those violations rendered the deportations unlawful.

Rangel-Gonzales was deported in December 1974 and Calderon-Medina in August 1977. Both are Mexican citizens. The district courts found that in the deportation proceedings INS had violated 8 C.F.R. § 242.2 (e) (1978), 1 which provides: “Every detained alien shall be notified that he may communicate with the consular or diplomatic officers of the country of his nationality.”

Dismissals in both cases were based on the conclusion that violation of this regulation rendered the original deportations unlawful. Rangel-Gonzales also alleged violations of 8 C.F.R. § 241.1 (1978) 2 and 8 C.F.R. § 242.16 (1978), 3 but no findings were made with respect to those assertions.

The government contends that a deportation order should never be subject to…

dissenting:

I must dissent.

This nation must manifest integrity in our treaties with foreign countries. To honor the provisions of Article 36 of the Vienna Convention on Consular Relations, as noted in footnote 6 of the majority opinion, mandates a sense of justice and decency. To do anything less is a severe erosive compromise of our very essence equal if not greater than a Constitutional violation.

For the foregoing reasons, I order an affirmance of the district court decision, or in the alternative, to remand the case to the district court imposing the burden on the government to establish the absence of prejudice.

591 F.2d 529 UNITED STATES of America, Plaintiff-Appellant, v. Eziquio CALDERON-MEDINA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Evaristo RANGEL-GONZALES, Defendant-Appellee. Nos. 78-1998, 78-1999. United States Court of Appeals, Ninth Circuit. Feb. 21, 1979. Michael P. Ruark, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellant. Katrina C. Pflaumer (argued), Seattle, Wash., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 The district courts in these consolidated appeals dismissed indictments against Calderon-Medina and Rangel-Gonzales for illegal re-entry following deportation, a violation of 8 U.S.C. § 1326 (1976), because the Immigration and Naturalization Service (INS) had violated at least one of its own regulations in the deportation proceedings. On appeal by the government, the primary issue is whether those violations rendered the deportations unlawful. 2 Rangel-Gonzales was deported in December 1974 and Calderon-Medina in August 1977. Both are Mexican…