United States of America, Plaintiff-appellee, v. Arturo Lopez-vasquez, Defendant-appellant, 1 F.3d 751 (9th Cir. 1993)

ORDER

The opinion in United States v. Lopez-Vasquez, No. 92-50271, slip op. 1043 (9th Cir. Feb. 8, 1993) is amended as follows:

With these amendments the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

PER CURIAM:

Arturo Lopez-Vasquez was deported May 3, 1991. On August 28, 1991, he attempted to enter the United States from Mexico through a border patrol checkpoint. He told border patrol agents he was a United States citizen but had no identification because his wallet had been stolen. Lopez-Vasquez consented to a search of his bag and agents found a card with the name "Arturo Vasquez." A computer search under that name revealed an extensive criminal history and prior deportations, including the deportation of May 3. Lopez-Vasquez was arrested and indicted for reentry after deportation in violation of 8 U.S.C. § 1326. In a pretrial motion, Lopez-Vasquez contended his May 3 deportation could not serve as the basis for a conviction under Sec. 1326 because his waiver of his right to appeal the deportation order was not knowing and intelligent. The court denied the motion. Lopez-Vasquez entered a conditional plea of guilty, preserving his right to appeal the denial of his motion.

A claim that a defect in a prior deportation order precludes reliance on the deportation in a prosecution for violation of 8 U.S.C. § 1326 presents "mixed questions of law and fact requiring us to exercise judgment about legal principles. Accordingly, we review [Lopez-Vasquez's] claims de novo." United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992) (en banc).

Lopez-Vasquez was deported from the United States on May 3, 1991 after a group hearing with at least eleven other aliens. Although the immigration judge spoke to Lopez-Vasquez through an interpreter, he did not ask him, or any other member of the group, personally whether he wished to appeal his deportation.¹  Instead, he addressed them as a group:THE COURT: Please answer together gentlemen, do you all understand the decision in your case?

ANSWER: Yeah!

THE COURT: [If] you accept the decision now, it is final and you will be deported to Mexico tonight. But you do not have to accept deportation. If you think it is wrong or unjust in your case for any reason, you can appeal the case to the higher court. Appeal is the legal way of saying to send the case to the higher court for study and review. Now all of you should have in your possession the Spanish language form I-648A. Regardless of the [inaudible] If you do not have a form please stand now. Let the record show that no one is standing.

Gentlemen, this appeal [form] explains about appeal like I am doing. And [inaudible] to make an appeal that cost money, but forget about that if you have no money; you can file the appeal free of charge. I [will] give you help with the paper work. Even if you do not know at this time if you want to appeal, the law says that you can reserve your right to appeal for the next 10 days and think about it.

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. Let the record show that no one is standing. If any of you want to appeal your case to the higher court, or if you want to reserve your right to appeal for 10 days and think about it, please stand so that I can talk to you about that. Again, let the record reflect that no one is standing.

.... There's no appeal and so the decision [inaudible] is final. I am going to give you and the immigration service attorney a copy of the decision. And I do wish all of you good luck for the future. The hearing for you is finished.

Due process requires that, "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before an administrative order may be used to establish conclusively an element of a criminal offense." United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 2154-55, 95 L. Ed. 2d 772 (1987) (citations omitted) (emphasis in original); see also Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 677, 88 L. Ed. 834 (1944). Although a deportee may waive his right to judicial review of his deportation order, that waiver must be "considered and intelligent." Id. Otherwise, the deportee is deprived of judicial review in violation of due process.²  The government bears the burden of proving the waiver. See Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424 (1977) ("it [is] incumbent upon the State to prove 'an intentional relinquishment or abandonment of a known right or privilege.' ") (citation omitted).³  "Courts should 'indulge every reasonable presumption against waiver,' and they should 'not presume acquiescence in the loss of fundamental rights.' " Barker v. Wingo, 407 U.S. 514, 525, 92 S. Ct. 2182, 2189, 33 L. Ed. 2d 101 (1972) (citations omitted).

Although we have held the government may conduct group deportation hearings if the proceedings comport with due process, United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir. 1985), we have never held that due process is satisfied by a mass silent waiver of the right to appeal a deportation order.

The government argues that requiring a detained alien who wishes to assert his right to appeal to stand for questioning provides sufficient input to ensure the waiver was knowing and intelligent. We disagree. 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.⁴  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 message that appeal was disfavored and contingent upon further discussion with the immigration judge.⁵ 

The government also notes the immigration judge explained the right to appeal, and Lopez-Vasquez was provided with a form explaining his right to an appeal in Spanish. These facts might support an argument that Lopez-Vasquez knew what his right to an appeal was, but they fail to demonstrate that Lopez-Vasquez's silent waiver of the right was itself "considered" and "intelligent." United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S. Ct. 2148, 2156, 95 L. Ed. 2d 772 (1987).⁶ 

We conclude mass silent waiver impermissibly "presume [s] acquiescence" in the loss of the right to appeal and fails to overcome the "presumption against waiver." See Barker, 407 U.S. at 525, 92 S. Ct. at 2189.⁷  We reach the same conclusion in United States v. Gonzalez-Mendoza, 985 F.2d 1014-1017 (9th Cir. 1993).

In reliance upon the panel opinion in United States v. Proa-Tovar, 945 F.2d 1450 (9th Cir. 1991), superseded by 975 F.2d 592 (9th Cir. 1992) (en banc), Lopez-Vasquez made no effort to show prejudice from the failure to appeal or to argue the issue of prejudice in the district court or on appeal. After the parties filed their opening briefs in this case, the en banc court superseded the panel opinion and held that " [a] defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. § 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice." Proa-Tovar, 975 F.2d at 595. We requested supplemental briefs on the impact of the en banc decision on this case.

The government argues Lopez-Vasquez "had no relief available to him from his inevitable deportation" because his prior criminal convictions make him ineligible for suspension of deportation, voluntary departure, or lawful admission for permanent residence.⁸  Lopez-Vasquez argues remand is necessary because he had no reason to present evidence of prejudice to the district court.

Because neither Lopez-Vasquez nor the district court considered the question of prejudice and the record is incomplete, we are unable to determine whether Lopez-Vasquez can provide "some concrete evidence indicating that the violation of [his right to appeal] actually had the potential for affecting the outcome of [the] deportation proceedings." U.S. v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986). Accordingly, we remand to the district court for consideration of this issue.⁹ 

Remanded.

DISSENT FROM THE ORDER

OF DENIAL OF REHEARING

EN BANC

Aug. 10, 1993.

O'SCANNLAIN, Circuit Judge, with whom HALL, WIGGINS, KOZINSKI, TROTT, T.G. NELSON, and KLEINFELD, Circuit Judges join, dissenting from the order of denial of rehearing en banc:

When a panel of this court announces a new per se rule--indeed, one that misreads an en banc decision we rendered less than a year ago, that rests on an empirical foundation consisting entirely of unsubstantiated speculation, and that in any event adds nothing in the way of real protection for the right it is intended to safeguard--reasonably good cause exists to assemble the en banc court. When that new per se rule stands controlling Supreme Court precedent on its head, and introduces the altogether remarkable notion of a fundamental constitutional right to appeal, the case for en banc rehearing becomes overwhelming. Our court has decided otherwise, and from that decision I must respectfully dissent.

* Let us begin where the panel should have, with an examination of the Supreme Court's decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S. Ct. 2148, 95 L. Ed. 2d 772 (1987), and that of our en banc court in United States v. Proa-Tovar, 975 F.2d 592 (9th Cir. 1992) (en banc). For while the panel's opinion indeed quotes the language of Mendoza-Lopez, it fails to follow its reasoning. In particular, the panel ignores the implications of the interpretation of Mendoza-Lopez upon which we settled in Proa-Tovar.

Mendoza-Lopez holds that "where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." 481 U.S. at 838, 107 S. Ct. at 2155. For this reason, a defendant charged with the crime of re-entering this country after deportation under 8 U.S.C. § 1326 who "was effectively denied his right to direct review" must be permitted "to mount a collateral attack on the deportation proceeding when he [is] prosecuted under section 1326." Proa-Tovar, 975 F.2d at 594. So much is clear from Mendoza-Lopez itself.

To succeed in his collateral attack, the section 1326 defendant must show that his prior deportation proceeding violated due process--that is, (1) that the proceeding was marked by "fundamental procedural defects," Mendoza-Lopez, 481 U.S. at 841, 107 S. Ct. at 2157, and (2) that these defects resulted in prejudice to the alien. The prejudice requirement, obscure in Mendoza-Lopez, was made clear in Proa-Tovar. See Proa-Tovar, 975 F.2d at 595 ("the Court has not eliminated prejudice from the equation").

But the panel here misses the point that underlies both Mendoza-Lopez and Proa-Tovar: the section 1326 defendant's entitlement to mount a collateral attack on his prior deportation is one thing, the merits of that collateral attack something entirely different. Perhaps the panel errs because, in this case, whether Lopez-Vasquez validly waived his right to appeal plays a role in both these determinations. Nevertheless, two distinct questions are involved here. First is the question whether Lopez-Vasquez was deprived of his right to direct review, thus entitling him to mount his collateral attack in this proceeding. Second is the (wholly separate) question whether his deportation was in fact fundamentally unfair.

The panel would have done well to seek guidance from the other circuits that have been forced to "unravel the riddle" of Mendoza-Lopez. Proa-Tovar, 975 F.2d at 594. All of these courts have interpreted the Court's decision precisely as outlined above. All agree, that is, that "Mendoza-Lopez presupposes a two-step process for determining when an alien can prevent his deportation from being used as a basis for conviction under 8 U.S.C. § 1326." United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir. 1992). " [T]he alien must show not only that he was effectively deprived of his right to direct appeal, but also that the administrative proceedings were fundamentally unfair in some respect that would have entitled him to relief on appeal." United States v. Fares, 978 F.2d 52, 57 (2d Cir. 1992). Accord United States v. Santos-Vanegas, 878 F.2d 247, 251-52 (8th Cir. 1989); United States v. Holland, 876 F.2d 1533, 1536 (11th Cir. 1989) ("The defendant must show that he was deprived of judicial review of the proceeding and that the proceeding was fundamentally unfair.") (emphasis supplied).

II

Against this backdrop, the shortcomings of the panel's opinion emerge starkly.

Although a deportee may waive his right to judicial review of his deportation order, that waiver must be "considered and intelligent." [Mendoza-Lopez, 481 U.S. at 837-38, 107 S. Ct. at 2154-55] ... The government bears the burden of proving the waiver. See Brewer v. Williams, 430 U.S. 387, 404 [97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424] (1977) ("it is incumbent upon the State to prove 'an intentional relinquishment or abandonment of a known right or privilege.' ") (emphasis supplied, citation omitted).

United States v. Lopez-Vasquez, 1 F.3d 751. With all due respect, this is not merely nonsense. It is nonsense on stilts.

* First, the nonsense. The panel assigns the government the burden of proving that Lopez-Vasquez validly waived his right to appeal his deportation. As explained above, however, the validity of such a waiver goes to two different legal questions. Consequently, when the panel says that the government bears the burden of proving a valid waiver, it is really saying two different things. Neither can withstand scrutiny.

On the one hand, the panel is saying that the government bears the burden of proving that Lopez-Vasquez was not deprived of judicial review of his deportation proceeding, and is therefore not entitled to mount a collateral attack upon that proceeding. In effect, the panel creates a presumption that the defendant was improperly denied review and therefore is entitled to mount a collateral attack, in every section 1326 prosecution. This is simply irrational, and Mendoza-Lopez clearly does not envision any such thing. The Court did not mandate that collateral attacks be entertained as a matter of course, but said rather that they must be permitted in exceptional circumstances, that is, where judicial review is actually foreclosed because of defects in the deportation proceeding. See Mendoza-Lopez, 481 U.S. at 838-40, 107 S. Ct. at 2155-56.

On the other hand, by insisting that the government prove a valid waiver of appeal, the panel is effectively bifurcating the burden of proof as to the fundamental fairness of the underlying deportation proceeding. For Lopez-Vasquez holds that it is up to the government to prove that the defendant's deportation proceeding was not marred by any fundamental procedural defect--here, a defect implicating the defendant's right to appeal. Yet we held in Proa-Tovar that " [t]he defendant ... bears the burden of proving prejudice" from any such defect. 975 F.2d at 595. The result is simply irrational. Nothing can justify carving up the burden of proof on the single issue of fundamental fairness in this ad hoc manner. Because the panel has failed to consider the implications of its decision within the framework provided by Mendoza-Lopez and Proa-Tovar, it makes a hodge-podge of the assignment of burdens of proof.

B

Now the stilts. As authority for the proposition that the government bears the burden of proving waiver here, the panel cites Brewer v. Williams. The citation is obviously intended as more than merely illustrative; the panel clearly regards Brewer as controlling precedent. Thus we are told in a footnote that " [o]ther circuits that may appear to have placed the burden of proof on the defendant did not consider the allocation of burden of proof in Brewer." Lopez-Vasquez, op. at 754 n. 3. (citing cases).

But Brewer controls nothing in this context. At issue in that famous case was a purported waiver of the Sixth Amendment right to counsel. The criminal defendant's right to counsel, of course, is a fundamental constitutional right, "indispensable to the fair administration of our adversary system of criminal justice." Brewer, 430 U.S. at 398, 97 S. Ct. at 1239 (emphasis supplied). Accordingly, the Brewer Court employed the "strict standard" of waiver set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), Brewer, 430 U.S. at 404, 97 S. Ct. at 1242, which is, indeed, " [t]he strictest test of waiver which might be applied." Id. at 433, 97 S. Ct. at 1257 (White, J., dissenting). In this context, it is no surprise that the government "bears a heavy burden" of proof. Id. at 402, 97 S. Ct. at 1241 (citation omitted).

At issue in this case, however, is a waiver of the statutory right to judicial review of the result of a civil deportation proceeding. Such a right is in no sense indispensable to the fair administration of justice--it is not guaranteed as a matter of due process. Indeed, the right to an appeal is simply not protected by the Constitution, in this or any context. So well established is this principle that fully a century ago the Supreme Court could say that " [a] citation of authorities on the point is unnecessary." McKane v. Durston, 153 U.S. 684, 687, 14 S. Ct. 913, 915, 38 L. Ed. 867 (1894).

What, then, justifies the panel's reliance on Brewer? Why must an alien's alleged waiver of the statutory right to appeal a deportation order be tested according to "the strictest possible" standard of waiver, the standard applied by the Court to waivers of fundamental constitutional rights in a criminal context, a standard under which "it is incumbent upon the State" to prove waiver? The panel does not explain.¹ 

C

Under the stilts, we may add a pair of skates:

"Courts should 'indulge every reasonable presumption against waiver,' and they should 'not presume acquiescence in the loss of fundamental rights.' " Barker v. Wingo, 407 U.S. 514, 525 [92 S. Ct. 2182, 2189, 33 L. Ed. 2d 101] (1972) (citations omitted).

Lopez-Vasquez, op. at 754. The problem with this passage is that Barker v. Wingo has no application in this context. Like Brewer, Barker was a case involving a purported waiver of fundamental constitutional rights--here, the right to a speedy trial under the Sixth Amendment. The Supreme Court's injunction to "indulge every reasonable presumption against waiver" was thus premised on fear of "acquiescence in the loss of fundamental rights." Indeed, if we look again to Johnson v. Zerbst, which is the source of the language quoted in Barker and relied upon by the panel here, this very point comes through loud and clear:

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights."

304 U.S. at 464, 58 S. Ct. at 1023 (citations omitted, emphasis supplied).

Let us repeat: the right to an appeal is not protected by the Constitution, even for criminal defendants. The right to an appeal is a statutory right ... period. What is it, then, that justifies "indulging every reasonable presumption against waiver" of the right to appeal, as we would waiver of the right to counsel, or the right to jury trial, or the right to confront one's accusers? Again, the panel does not provide an answer.

D

The panel has imported the strict standard applicable to the waiver of fundamental constitutional rights, and the presumption against waiver of such rights, into a context where the waiver of constitutional rights is not even remotely at issue. Under Mendoza-Lopez, Lopez-Vasquez enjoys three different due process rights: (1) his right as a section 1326 defendant to collateral review of a prior deportation where direct appeal was improperly denied him; (2) his right as a deportation proceeding respondent to a fundamentally fair deportation proceeding; (3) his right as a section 1326 defendant not to be subject to criminal penalties on the basis of a prior deportation that was not fundamentally fair. No one claims that Lopez-Vasquez waived any of these rights, whether validly or invalidly. All of these rights are alive and well in this proceeding, the very point of which is to vindicate those rights if they are indeed at risk. The only right Lopez-Vasquez is alleged to have waived is his unenumerated statutory right to an appeal.

Yet the panel proceeds as if Mendoza-Lopez made the right to appeal a deportation order a necessary aspect of due process, such that a waiver of the right to appeal such an order is a waiver of a due process right. If this were true, it would indeed follow, as the panel seems to think, that the burden of proving waiver should be placed on the government, and that the presumption against such waiver should apply. But it is not true. Mendoza-Lopez does not say that due process guarantees the right to appeal a deportation order; it says that due process guarantees the right to some kind of judicial review of the deportation proceeding before the order may be relied upon to establish an element of a criminal offense. Mendoza-Lopez does not say that an alien who is denied the right to appeal his deportation order is thereby denied due process; it says that an alien who is prejudiced by the denial of his right to appeal in such a way as to render his deportation proceeding fundamentally unfair is denied due process.

Mendoza-Lopez does not, in short, say that the right to an appeal is guaranteed as a matter of due process of law. The waiver of the right to an appeal is not the waiver of a constitutional right. Cases setting forth standards for reviewing waivers of fundamental constitutional rights are not controlling here--indeed, they are not even relevant. The reasoning of Lopez-Vasquez, then, is just plain wrong.

E

This lengthy analysis is necessary because the panel's holding is entirely dependent upon the presumption against waiver: "We conclude mass silent waiver impermissibly 'presume [s] acquiescence' in the loss of the right to appeal and fails to overcome the 'presumption against waiver.' See Barker, 407 U.S. at 525 [92 S. Ct. at 2189]." The presumption indulged in by the panel is the only basis for thinking that a per se rule can or should govern here. That rule is utterly compromised by its reliance on this non-existent presumption, and it should not have been allowed to stand.

III

There's more. The panel has entirely overlooked the significance of the fact that what is involved here is a collateral attack on the constitutionality of a prior adjudication. The government here introduced a facially valid deportation order in an effort to establish one element of the offense defined by section 1326. Lopez-Vasquez "sought to deprive [the order] of [its] normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgment [ ]." Parke v. Raley, --- U.S. ----, ----, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992). " [B]y definition," that is a collateral attack. Id.

This makes a world of difference, as Justice O'Connor recently explained in Parke v. Raley. At issue was a Kentucky sentence enhancement scheme which placed upon the defendant the burden of proving the invalidity of any prior convictions once the state produced a facially valid prior judgment. The Sixth Circuit had held that this scheme was unconstitutional when applied to a defendant who claimed his prior convictions were based on guilty pleas entered in violation of the rule in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

The Sixth Circuit thought rejection of Kentucky's burden-shifting scheme compelled by Boykin 's statement that the waiver of rights resulting from a guilty plea cannot be "presume [d] ... from a silent record." [395 U.S.] at 243 [89 S. Ct. at 1712].

We see no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and now he seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin's presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the "presumption of regularity" that attaches to final judgments, even when the question is waiver of constitutional rights. Although we are perhaps most familiar with this principle in habeas corpus actions, it has long been applied equally to other forms of collateral attack.

Raley, --- U.S. at ----, 113 S. Ct. at 523 (emphasis supplied, citations omitted).

These principles have been unvaryingly followed in our own cases. See, e.g., United States v. Pricepaul, 540 F.2d 417, 423 (9th Cir. 1976) (defendant bears the burden of proving invalidity of guilty plea for purposes of defending against charge of being felon in possession of firearm); United States v. Carroll, 932 F.2d 823, 825 (9th Cir. 1991) (defendant bears burden of proving constitutional invalidity of prior convictions used in sentencing under the Guidelines). The decisions of the other courts of appeals are to the same effect. See Raley, --- U.S. at ----, 113 S. Ct. at 525 (citing examples in different contexts).

The panel has simply ridden roughshod over the "presumption of regularity" that ought to attach to a final, facially valid deportation order. Once the government produced such an order, it was up to Lopez-Vasquez to rebut that presumption, and to prove the existence of fundamental unfairness in the underlying deportation proceeding. The panel, however, has gone in precisely the opposite direction: it has conjured up a presumption of irregularity. This presumption stands in turn upon the "presumption against waiver" of the "fundamental constitutional" right to appeal, which does not exist, and which, even if it did exist, would not justify shifting the entire burden of proof to the government: "even when a collateral attack on a final [adjudication] rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant." Id. at ----, 113 S. Ct. at 524 (citation omitted).

Nonsense on stilts on skates ... and on thin ice to boot.

IV

And there's still more. The panel has crafted a per se rule to govern the question of waiver. Yet the Supreme Court has repeatedly stressed that "inflexible per se rule [s]" are all but entirely out of place in this context, because the question of waiver is inherently fact-specific:

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). Over and over again, the Court has approved this approach, under which the validity of a purported waiver is to be determined "under the totality of the circumstances" bearing on that waiver. See, e.g., Solem v. Stumes, 465 U.S. 638, 647, 104 S. Ct. 1338, 1343, 79 L. Ed. 2d 579 (1984); Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S. Ct. 2830, 2835, 77 L. Ed. 2d 405 (1983) (plurality opinion); Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 2571-72, 61 L. Ed. 2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 1757-58, 60 L. Ed. 2d 286 (1979). This fact specific approach to waiver is the rule " [e]ven when a right so fundamental as that to counsel at trial is involved." Butler, 441 U.S. at 374, 99 S. Ct. at 1758. Indeed, it has been observed that there is but "a solitary exception to [the Court's] waiver jurisprudence," in which the case-by-case approach has been abandoned in favor of a per se rule. Minnick v. Mississippi, 498 U.S. 146, 160-62, 111 S. Ct. 486, 495, 112 L. Ed. 2d 489 (1990) (Scalia, J., dissenting).² 

If the validity of an individual's waiver even of fundamental constitutional rights is all but invariably to be determined according to "the totality of the circumstances," what justifies a per se rule of invalidity here, where the statutory right to appeal is in question? The panel doesn't say.

Indeed, while the panel has gone out of its way to import Zerbst 's strict standard of waiver (by way of Brewer) and its indulgence of every presumption against waiver (by way of Barker), it has gone equally out of its way to ignore Zerbst 's injunction that the validity of a waiver "must depend, in each case, on the particular facts and circumstances surrounding that case." Nonsense on stilts, skating on thin ice ... blindfolded.

V

Teetering awkwardly on such a precarious legal foundation, the panel's per se rule is a bad rule, untenable as a matter of logic and undesirable as a matter of policy.

The panel holds that the procedure employed by the immigration judge, whereby the respondents were invited to stand up if they wished to appeal, always "makes it impossible to determine whether aliens who do not stand have made a voluntary and intelligent decision to waive their right to appeal." Lopez-Vasquez, op. at 754 n. 5. But this is plainly false, as anyone with experience in these kinds of cases must understand. To be sure, the use of this procedure will sometimes prevent a reviewing court from determining that an individual made a considered and intelligent decision not to appeal. But this is by no means invariably the case. In some cases, the record will demonstrate that a particular individual's waiver of appeal is fully informed and eminently rational, even though the transcript does not record him as saying, "I understand that I may appeal, but I do not wish to do so." By the same token, one can easily imagine instances in which the record will contain just such a statement, yet a reviewing court will be firmly convinced that the words did not reflect a voluntary decision intelligently made. The point is simply that it is not always (or even usually) impossible for us to judge the character of a decision not to appeal just because that decision is expressed non-verbally. See United States v. Ortiz-Rivera, 1 F.3d 763 (9th Cir. 1993) (per curiam).³ 

This is a fact we have unambiguously acknowledged in cases treating a criminal defendant's waiver of the right to appeal. Thus we have held that "a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; a finding that the waiver is knowing and voluntary is sufficient." United States v. DeSantiago-Martinez, 980 F.2d 582, 583 (9th Cir. 1992). The panel's decision therefore gives rise to a staggering anomaly whereby, in this circuit, the appeal rights of the respondents in a deportation proceeding, being waivable only by express declaration in open court, are thus subject to greater procedural protections than are the analogous rights of the defendant in a criminal case. Cf. United States v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985) ("Respondents in a civil deportation hearing ... are not entitled to the same ... rights afforded a criminal defendant.").

Moreover, the empirical basis on which the panel erects its rule is dubious at best. The panel assumes that eliciting waiver by inviting an alien to stand if he wishes to appeal "creates a risk that individual detainees will feel coerced by the silence of their fellows," and "tend [s] to stigmatize detainees who wish [ ] to appeal and to convey a message that appeal was disfavored." Lopez-Vasquez, slip op. at 6638. Where do these assumptions come from?

Given the facts of this case, and of the many similar cases we review, it is entirely plausible to indulge a quite different set of assumptions. Lopez-Vasquez surely knew at the time of his deportation hearing that he had "been convicted six times for theft of property, driving under the influence, burglary, and possession of a controlled substance." Id. at 755 n. 8. In addition, "the immigration judge explained the right to appeal, and Lopez-Vasquez was provided with a form explaining his right to appeal in Spanish." Id. at 754. Thus even the panel must admit that "Lopez-Vasquez apparently knew what an appeal was, and was aware he had some right to appeal." Id. at 754 n. 6. It is not at all unreasonable to think that Lopez-Vasquez remained seated when asked if he wished to appeal his deportation because he knew full well that an appeal could not possibly help him, and did not wish to be confined in a detention center for as long as it might take to process such a fruitless effort. If we are to traffic in assumptions, then we might very well assume that an alien's decision not to appeal generally rests on rational self-interest that counsels the hopelessness of an appeal rather than the "coercion" or "stigma" identified by the panel. See Ortiz-Rivera, supra.⁴ 

Even if the panel is right to be concerned about "coercion" and "stigma" in these circumstances, the per se rule it has crafted does precious little to address these concerns. Lopez-Vasquez was one of twelve respondents in the underlying deportation proceeding. The procedure mandated by the panel here would require an immigration judge to ask each respondent individually whether he wished to appeal. Suppose Lopez-Vasquez had been the twelfth respondent so questioned, and suppose (as is not unlikely) that each of his fellows had declined to appeal before him. Now suppose that the immigration judge turns his attention to Lopez-Vasquez: "And you, sir, do you wish to appeal my ruling?" Might this not be even more coercive than the procedure actually employed here, making it even harder for the respondent to assert his desire for review? The coercion and stigma the panel fears is inherent in any group deportation proceeding. Such proceedings, however, unquestionably do not offend due process. See, e.g., Nicholas-Armenta, 763 F.2d at 1091. By its oversolicitous concern for one aspect of these proceedings, the panel may have actually done more harm than good to the rights it means to protect.

In any event, if the panel believed that it could not find a valid waiver on these facts, as it evidently did, then it should have predicated its order of remand on these facts. The general assumptions advanced by the panel in no way support a per se rule that forces us to disregard the specific facts of particular cases. The rule itself, meanwhile, will inevitably foster results that are both silly and unjust. Indeed, it has already happened. See Ortiz-Rivera, supra.

VI

Kersplat! Nonsense on stilts, skating blindfolded on thin ice must topple in the end.

The law of this circuit now states that, in every section 1326 prosecution, the government must rebut the presumption that the defendant was deprived of his right to review of the underlying deportation order. The government must further rebut the presumption that the deportation proceeding was not marred by any fundamental procedural defect. The government's failure to carry its burden as to either of these two presumptions has the absurd consequence of shifting the burden to the defendant, who then, mysteriously, must prove prejudice. The law of this circuit also now holds that a non-verbal waiver of the right to appeal is per se unknowing, unconsidered, and unintelligent, and that reviewing courts lack the means to discern a valid waiver from a record that does not contain some approximation of the verbal ritual, "I do not wish to appeal." To arrive at this weird state of affairs, we have had to suffer one of our three-judge panels to cast aside, wittingly or not, the authority of the Supreme Court and of our own en banc court.

Our law should be otherwise. Our sufferance should not extend so far. We have passed up the opportunity to set things right. I respectfully dissent.