United States v. Gomez-Lira , 75 F. App'x 979 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2003
Charles R. Fulbruge III
Clerk
No. 02-51330
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ENRIQUE GOMEZ-LIRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-85-ALL-H
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Before DAVIS, EMILIO M. GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Luis Enrique Gomez-Lira appeals his conviction for illegal
reentry following deportation. He argues that the district court
erred in denying his motion to dismiss the indictment, in which
he collaterally challenged his removal proceedings. He
additionally contends that his indictment was fatally defective.
An alien seeking to collaterally challenge an order of
removal in an 8 U.S.C. § 1326 prosecution must establish (1) that
the removal proceeding was “‘fundamentally unfair’”; (2) that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-51330
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proceeding “effectively eliminated” his right to challenge the
proceeding by means of judicial review; and (3) that “procedural
deficiencies” actually prejudiced him. United States v. Mendoza-
Mata, 322 F.3d 829, 832 (5th Cir. 2003) (citation omitted); see
also 8 U.S.C. § 1326(d). If the alien fails to establish one
prong of the test, the others need not be considered. Mendoza-
Mata, 322 F.3d at 832.
We reject Gomez’s contention that his ability to obtain
judicial review was effectively eliminated by his failure to be
released on bond and by an involuntary waiver of his appellate
rights. An alien’s detention during removal proceedings is
constitutionally permissible. See Demore v. Kim, 123 S. Ct.
1708, 1721-22 (2003). Moreover, the district court’s finding
that Gomez knowingly waived his appellate rights was not clearly
erroneous. See United States v. Encarnacion-Galvez, 964 F.2d
402, 409 (5th Cir. 1992).
Gomez’s contention that his order of removal was exclusively
based on the immigration judge’s erroneous determination that he
was an aggravated felon is unsupported by the record, which
indicates that both the notice to appear and the order of removal
additionally cited to the fact that he had been convicted of a
crime of child abuse as grounds for his removal. Gomez has not
challenged that additional finding, and, therefore, he can show
no prejudice.
No. 02-51330
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The immigration judge’s determination that Gomez was
statutorily ineligible for cancellation of removal and,
therefore, § 212(c) discretionary relief did not rise to the
level of a due process violation such that his removal proceeding
was rendered fundamentally unfair. See United States v. Lopez,
313 F.3d 225, 228 (5th Cir. 2002), cert. denied, 123 S. Ct. 922(2003). Finally, Gomez’s contention that the indictment was
fatally defective is inadequately briefed and is therefore
waived. See United States v. Green, 964 F.2d 365, 371 (5th Cir.
1992).
AFFIRMED.