United States v. Ricardo Ahumada-Aguilar, AKA Ricardo Ahumada AKA Ricardo Aguilar AKA Ricardo Alfonso Hernandez

Opinion by Judge ALARCÓN; Dissent by Judge KLEINFELD.

Ricardo Ahumada-Aguilar appeals from his conviction pursuant to 8 U.S.C. § 1326 (a) and (b) of two counts of reentering the United States, without the consent of the Attorney General, after being deported as an alien following his conviction in a state court of the crimes of residential burglary and possession of cocaine. We reverse the judgment of conviction because we conclude that the Government failed to demonstrate that the underlying deportation proceedings were conducted in conformity with due process.

I

Ahumada-Aguilar was indicted on June 7, 1995. On August 24, 1995, he filed separate motions to dismiss the indictment. In one motion, he requested dismissal on the basis that he is not subject to prosecution for a violation of § 1326(a) and (b)(1) because he is not an alien. Ahuma-da-Aguilar alleged that at the time of his birth in Mexico to a Mexican citizen mother, his father was a United States citizen. He argued that he met all of the valid constitutional requirements for citizenship set forth in 8 U.S.C. § 1401 (g) for a person born out of wedlock whose father is a United States citizen. He also asserted that the…

dissenting:

This is a criminal case for reentry after deportation, not direct review of the deportation. 1 Ahumada-Aguilar has won this case before on the theory that maybe he wasn’t an alien at all. 2 The Supreme Court vacated. 3 Now he wins again. And again, his victory isn’t based on any question about whether he reentered following deportation, but on the theory that his deportation proceeding was defective. Aid again, 4 we err. The collateral issue on which Ahumada-Aguilar gains relief under today’s majority opinion is that his waiver of counsel was defective under our previous decisions. But today’s decision doesn’t follow our precedents; rather, it expands and extends them far beyond their already extended reach.

1. Procedural Defect

The issue here is whether Ahumada-Aguilar, in his deportation hearing, waived his right to counsel. Deportation isn’t criminal, so we are not talking about the Sixth Amendment right to counsel. Rather, the right to counsel at issue is the one codified in the applicable statute and INS regulations. 5 Under the regulation, the Immigration Judge had to “require him to state then and there whether he desires representation.” 6 The IJ did just…

295 F.3d 943 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo AHUMADA-AGUILAR, aka Ricardo Ahumada; aka Ricardo Aguilar; aka Ricardo Alfonso Hernandez, Defendant-Appellant. No. 96-30065. United States Court of Appeals, Ninth Circuit. Filed July 1, 2002. COPYRIGHT MATERIAL OMITTED Jay Warren Stansell and Michael Filipovic, Assistant Federal Public Defenders, Seattle, WA, for the defendant-appellant. Donald M. Reno, Jr., Assistant United States Attorney, United States Department of Justice, Civil Division, Seattle, Washington, for the plaintiff-appellee. On Remand from the United States Supreme Court. D.C. No. CR-95-00339-1-TSZ. Before: SCHROEDER, Chief Judge, ALARCÓN, and KLEINFELD, Circuit Judges. Opinion by Judge ALARCÓN; Dissent by Judge KLEINFELD. ALARCÓN, Circuit Judge. 1 Ricardo Ahumada-Aguilar appeals from his conviction pursuant to 8 U.S.C. § 1326 (a) and (b) of two counts of reentering the United States, without the consent of the Attorney General, after being deported as an alien following his conviction in a state court of the crimes of residential burglary and possession of cocaine. We reverse the judgment of conviction because we conclude…