United States v. Jose Mendez-Morales ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-3477
    ___________
    United States of America,                *
    *
    Plaintiff - Appellee,              *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of Nebraska.
    Jose Mendez-Morales,                     *
    *
    Defendant - Appellant.             *
    ___________
    Submitted: May 13, 2004
    Filed: October 6, 2004
    ___________
    Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,* District Judge.
    ___________
    LOKEN, Chief Judge.
    In 1992, a state court jury convicted Jose Mendez-Morales of first degree
    sexual assault of a minor. At subsequent deportation proceedings, Mendez-Morales
    conceded deportability and sought adjustment of status and a waiver of
    inadmissibility. See 8 U.S.C. §§ 1182(h), 1255(a) (1994). The immigration judge
    ruled that Mendez-Morales was eligible for this relief but the equities did not merit
    a favorable exercise of the agency’s discretion. The Board of Immigration Appeals
    dismissed an administrative appeal, and Mendez-Morales petitioned this court for
    *
    The HONORABLE RICHARD E. DORR, United States District Judge for the
    Western District of Missouri, sitting by designation.
    judicial review. We dismissed the appeal because his offense was an “aggravated
    felony” for purposes of 8 U.S.C. § 1101(a)(43) and 8 U.S.C. § 1251(a)(2)(A)(iii), and
    therefore 8 U.S.C. § 1105a deprived us of jurisdiction. Mendez-Morales v. INS, 
    119 F.3d 738
    , 739 (8th Cir. 1997). Mendez-Morales did not seek certiorari review of our
    decision nor petition the appropriate district court for habeas corpus relief.
    After his removal to Mexico, Mendez-Morales returned to this country without
    permission and was charged with illegal reentry following deportation in violation of
    8 U.S.C. § 1326(a) and (b)(2). He moved to dismiss the indictment. Relying on
    United States v. Mendoza-Lopez, 
    481 U.S. 828
    (1987), and the statute that essentially
    codified that decision, 8 U.S.C. § 1326(d), Mendez-Morales argued that the
    government could not base a § 1326 conviction on the administrative deportation
    order because our court refused to review the merits of that order. The district court1
    denied the motion, concluding that no procedural defect in the administrative
    proceedings deprived Mendez-Morales of judicial review, our dismissal of the prior
    appeal was not part of “the deportation proceedings,” and entry of the deportation
    order was not “fundamentally unfair” as Mendez-Morales failed to establish the
    requisite prejudice. A jury then convicted Mendez-Morales of illegal reentry, and the
    court sentenced him to 57 months in prison. He appeals, renewing his attack on the
    government’s use of the underlying deportation order. We affirm.
    In an illegal reentry prosecution, the government must prove that the alien was
    removed or departed the United States “while an order of exclusion, deportation, or
    removal is outstanding.” 8 U.S.C. § 1326(a)(1). A deportation order is the product
    of a civil administrative proceeding. In Mendoza-Lopez, this court affirmed the
    dismissal of a § 1326 indictment because the defendants “were not accorded due
    process at the deportation hearing.” 
    781 F.2d 111
    , 113 (8th Cir. 1985). A sharply
    1
    The HONORABLE WARREN K. URBOM, United States District Judge for
    the District of Nebraska.
    -2-
    divided Supreme Court affirmed on a somewhat different ground. Noting that § 1326
    does not require proof that a deportation order was lawfully entered, the Court
    nonetheless held that the government may not rely on the order to support a § 1326
    conviction if “fundamental procedural defects of the deportation hearing” deprived
    the aliens of “their rights to appeal.” 
    Mendoza-Lopez, 481 U.S. at 841-42
    . The Court
    declined “to enumerate which procedural errors are so fundamental that they may
    functionally deprive the alien of judicial review.” 
    Id. at 839
    n.17. Following this
    decision, Congress amended the statute to define when a prior deportation order may
    be collaterally attacked in a § 1326 prosecution:
    (d) Limitation on collateral attack on underlying deportation order
    In a criminal proceeding under this section, an alien may not
    challenge the validity of the deportation order . . . unless the alien
    demonstrates that —
    (1) the alien exhausted any administrative remedies that may
    have been available to seek relief against the order;
    (2) the deportation proceedings at which the order was issued
    improperly deprived the alien of the opportunity for judicial
    review; and
    (3) the entry of the order was fundamentally unfair.
    Consistent with the limitations in § 1326(d), we construe Mendoza-Lopez as barring
    use of a prior deportation order in a § 1326 prosecution when “(1) an error in the
    deportation proceedings rendered the proceedings fundamentally unfair in violation
    of due process, and (2) the error functionally deprived the alien of the right to judicial
    review.” United States v. Torres-Sanchez, 
    68 F.3d 227
    , 230 (8th Cir. 1995).
    -3-
    1. On appeal, Mendez-Morales first raises a contention not clearly presented
    to the district court. Recognizing that Mendoza-Lopez is “not exactly on point”
    because in this case the statute, not a defect in the administrative proceedings,
    deprived him of judicial review of the deportation order, Mendez-Morales argues that
    the absence of judicial review precludes the government from relying on the
    deportation order in this prosecution, regardless of prejudice. The argument is based
    upon a literal reading of broad dicta that preceded the majority’s analysis in
    Mendoza-Lopez:
    Our cases establish 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. See Estep v. United States, 
    327 U.S. 114
    , 121-22 (1946); Yakus v. United States, 
    321 U.S. 414
    , 444 (1944);
    cf. McKart v. United States, 
    395 U.S. 185
    , 196-97 
    (1969). 481 U.S. at 837-38
    . However, the cases cited in this passage do not support Mendez-
    Morales’s argument. In Estep, though the statute provided that draft board orders
    “are final even though they may be erroneous,” the Court held that an order could be
    collaterally attacked if the board acted beyond its 
    jurisdiction. 327 U.S. at 122-23
    .
    Here, on the other hand, the BIA clearly acted within its authority in denying
    Mendez-Morales discretionary relief from deportation. Yakus cuts against Mendez-
    Morales’s argument: the Court held that Congress may “mak[e] criminal the violation
    of an administrative regulation . . . [and] commit[] the determination of the issue of
    its validity to the agency which created 
    it.” 321 U.S. at 444
    . And McKart is off point
    -- the Court excused a failure to exhaust administrative remedies that ended with
    judicial 
    review. 395 U.S. at 187
    , 203. Failure to exhaust is not an issue in this case.
    We share the Supreme Court’s concern with a regulatory regime that makes an
    administrative order not subject to judicial review conclusive proof of an element of
    the crime in a subsequent criminal prosecution. See generally United States v.
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    Spector, 
    343 U.S. 169
    , 177-79 (1952) (Jackson, J., dissenting). Here, Congress has
    eliminated direct judicial review of some deportation orders entered after civil
    administrative proceedings; the Due Process Clause does not bar that. See INS v. St.
    Cyr, 
    533 U.S. 289
    , 345-46 (2001) (Scalia, J., dissenting). The criminal statute then
    allows a collateral attack on only some of the deportation orders not subject to
    judicial review, those orders resulting from “deportation proceedings [that]
    improperly deprived the alien of the opportunity for judicial review.” 8 U.S.C.
    § 1326(d)(2). Though that limitation tracks the Supreme Court’s decision in
    Mendoza-Lopez, we think the Court might well extend the constitutional principle
    recognized in Mendoza-Lopez to § 1326 prosecutions in which judicial review of the
    deportation order was barred by statute. However, absent a due process deprivation
    by the agency,2 we conclude the Court would not automatically bar the § 1326
    prosecution. Rather, it would require that “an alternative means of obtaining judicial
    review must be made available before the [deportation] order may be used to establish
    conclusively an element of a [§ 1326] criminal offense.” 
    Mendoza-Lopez, 481 U.S. at 838
    .
    One such alternative means would be a petition for a writ of habeas corpus, a
    remedy Mendez-Morales did not pursue. See Calcano-Martinez v. INS, 
    533 U.S. 348
    , 351-52 (2001). Assuming his failure to seek habeas relief does not give rise to
    a procedural bar, the district court in the subsequent § 1326 prosecution may cure any
    due process concern over the lack of direct judicial review by reviewing the merits
    of the deportation order prior to its use in the criminal trial, adopting the standard of
    review applied by this court when we review a comparable deportation order. See
    
    Mendoza-Lopez, 481 U.S. at 839
    .
    2
    “Deprivation of judicial review does not equate to a fundamentally unfair
    administrative hearing. Rather . . . fundamental fairness and judicial review are
    separate elements under Mendoza-Lopez and § 1326(d).” United States v. Wilson,
    
    316 F.3d 506
    , 515 (4th Cir. 2003) (Motz, J., concurring).
    -5-
    When the statute provides for judicial review, we review the BIA’s
    discretionary denial of a waiver of inadmissibility for abuse of discretion. “The BIA
    has abused its discretion if the decision is without rational explanation, departs from
    established policies, or individually discriminates against a particular race or group.”
    Izedonmwen v. INS, 
    37 F.3d 416
    , 418 (8th Cir. 1994) (quotation omitted). In this
    case, Mendez-Morales was convicted by a Nebraska jury of first degree sexual assault
    of a thirteen-year-old victim. During a pretrial polygraph examination, he admitted
    having sexual intercourse with the victim. But at his deportation hearing, he denied
    having sexual intercourse, asserting that the polygraph examiner had moved the
    polygraph needles with his fingers to compel incriminating responses. The
    immigration judge found this testimony not credible. Though the immigration judge
    and the BIA found that Mendez-Morales was eligible for adjustment of status and a
    waiver of inadmissibility because deportation would cause extreme hardship to his
    family, they denied this discretionary relief because the crime was serious and
    Mendez-Morales appeared to blame the victim instead of showing remorse and
    rehabilitation. Mendez-Morales asserts that the BIA gave too much weight to the
    seriousness of his crime and his lack of remorse and rehabilitation. But it is the BIA’s
    task to weigh the relevant factors and exercise its discretion. The reviewing court’s
    task is only to ensure that discretion was in fact exercised and was not exercised in
    an arbitrary and capricious manner. See 
    Izedonmwen, 37 F.3d at 418
    ; Palmer v. INS,
    
    4 F.3d 482
    , 486 (7th Cir. 1993). Thus, affording Mendez-Morales a belated appeal
    from the BIA’s deportation order that now underlies his § 1326 prosecution, we
    conclude that he cannot show an abuse of the BIA’s discretion and thus is entitled to
    no relief from his § 1326 conviction.
    2. Alternatively, returning to the Mendoza-Lopez analysis, Mendez-Morales
    next argues that his deportation proceedings were fundamentally unfair because the
    immigration judge and the BIA improperly weighed the equities of his claim for
    discretionary relief, and we denied him judicial review of the merits of that claim. He
    argues that, if he must show prejudice from the absence of judicial review, he need
    -6-
    only show that he “might have won” his prior appeal. He further argues that the
    absence of judicial review of the deportation order may not be cured in a § 1326
    criminal proceeding. His brief succinctly summarizes the contention: “No judicial
    review, no prosecution.”
    Like other circuits, we have consistently held that “an error cannot render a
    proceeding fundamentally unfair unless that error resulted in prejudice.” Torres-
    
    Sanchez, 68 F.3d at 230
    , citing United States v. Polanco-Gomez, 
    841 F.2d 235
    , 237
    (8th Cir. 1988); see United States v. Loaisiga, 
    104 F.3d 484
    , 487 & n.2 (1st Cir.)
    (collecting cases), cert. denied, 
    520 U.S. 1271
    (1997). Prejudice in this context
    means “a reasonable likelihood that but for the errors complained of the defendant
    would not have been deported.” United States v. Perez-Ponce, 
    62 F.3d 1120
    , 1122
    (8th Cir. 1995) (quotation omitted). Thus, we reject Mendez-Morales’s contentions
    that prejudice need not be shown or may be presumed because he might have won his
    prior appeal had we considered the deportation order on the merits. Rather, as the
    district court recognized, under the prejudice component of the Mendoza-Lopez
    doctrine we must look at the probable merit of that prior appeal. As we have
    explained, Mendez-Morales cannot show that the BIA abused its discretion in
    entering the deportation order. Therefore, he “would have had no chance of winning
    an appeal” and cannot demonstrate the prejudice required to prove that the
    deportation proceedings were fundamentally unfair under Mendoza-Lopez. Perez-
    
    Ponce, 62 F.3d at 1122
    (quotation omitted).
    The judgment of the district court is affirmed.
    ______________________________
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