United States v. Daniel Proa-Tovar

Daniel Proa-Tovar was convicted of the felony of being an alien who reentered this country without permission after having been deported. 8 U.S.C. § 1326 . On appeal, he claims that the Immigration Judge’s (IJ) failure to properly advise him of his appeal rights at his deportation hearing precludes this conviction. We affirm.

BACKGROUND

A deportation hearing for Proa-Tovar and others was held in February of 1989. Before that hearing, Proa-Tovar had been in this country for some time and while here had committed a number of offenses. In 1986, he was convicted of auto burglary in California, and in December of 1988 he was convicted of possession of cocaine for sale, a felony under California law. He also had been convicted earlier that same year of an offense involving the sale of marijuana, after which he had been voluntarily returned to Mexico.

Before the February 1989 deportation hearing the IJ saw to it that all involved, including Proa-Tovar, had the services of an attorney, George Siddell. Proa-Tovar was interviewed by attorney Siddell who informed the IJ that each alien had agreed to his representation. Siddell also told the IJ that each of the aliens admitted the…

with whom Circuit Judges HUG, TANG and D.W. NELSON, join, dissenting:

I respectfully dissent on the ground of judicial economy. I agree that Proa-Tovar has the thinnest possible ground for complaint in this case. But the fitness of a felon for his punishment has no bearing on the duty of immigration hearing officers to afford all deportees due process of law, as required by their manual. Ramirez v. Immigration & Naturalization Service, 550 F.2d 560, 563 (9th Cir.1977).

The majority overrules an earlier decision of this court and encourages INS hearing officers to continue to ignore proper procedure in bulk deportation hearings. The majority recognizes that the underlying deportation in this case was defective. It holds, nonetheless, that the defect was harmless because this particular defendant can show no actual prejudice in his deportation. While the result accomplishes no injustice in this case, it invites future cases, and teaches the wrong lesson. Had we refrained from overruling United States v. Villa-Fabela, 882 F.2d 434 (9th Cir.1989) it might have been hoped that the Immigration Service would follow its own rules and the teaching of the Supreme Court in United States v.…

975 F.2d 592 UNITED STATES of America, Plaintiff-Appellee, v. Daniel PROA-TOVAR, Defendant-Appellant. No. 90-50373. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 23, 1992. Decided Sept. 14, 1992. Debra Ann DiIorio, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Kimberly D. Allan, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: WALLACE, Chief Judge, GOODWIN, HUG, TANG, D.W. NELSON, NORRIS, BEEZER, WIGGINS, TROTT, FERNANDEZ and RYMER, Circuit Judges. FERNANDEZ, Circuit Judge: 1 Daniel Proa-Tovar was convicted of the felony of being an alien who reentered this country without permission after having been deported. 8 U.S.C. § 1326 . On appeal, he claims that the Immigration Judge's (IJ) failure to properly advise him of his appeal rights at his deportation hearing precludes this conviction. We affirm. BACKGROUND 2 A deportation hearing for Proa-Tovar and others was held in February of 1989. Before that hearing, Proa-Tovar had been in this country for some time and while here had committed a number of offenses. In…