United States v. Encarnacion Gonzalez-Villalobo , 724 F.3d 1125 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-30150
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-02095-
RMP-1
ENCARNACION GONZALEZ-
VILLALOBOS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding
Argued and Submitted
February 8, 2013—Seattle, Washington
Filed July 26, 2013
Before: Raymond C. Fisher, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
2 UNITED STATES V . GONZALEZ-VILLALOBOS
SUMMARY*
Criminal Law
The panel affirmed the district court’s denial of a motion
to dismiss an indictment charging illegal reentry after a prior
deportation without addressing the merits of the defendant’s
argument that the alleged prior deportation proceeding was
fundamentally unfair.
The panel held that the defendant, who exhausted his
administrative remedies by appealing the Immigration
Judge’s adverse ruling to the Board of Immigration Appeals,
failed to show that an error or obstacle related to his
deportation proceedings improperly deprived him of the
opportunity for judicial review, as required for a collateral
attack on the deportation order under 8 U.S.C. § 1326(d).
The panel explained that the IJ’s denial of an evidentiary
hearing is not an error that, by its nature, affected the
defendant’s awareness of or ability to seek judicial review.
COUNSEL
Nicholas Marchi (argued), Carney & Marchi, P.S., Seattle,
Washington, for Defendant-Appellant.
Alexander C. Ekstrom, Assistant United States Attorney
(argued), and Michael C. Ormsby, United States Attorney,
Yakima, Washington, for Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . GONZALEZ-VILLALOBOS 3
OPINION
PAEZ, Circuit Judge:
Defendant Encarnacion Gonzalez-Villalobos appeals his
conviction for illegal reentry after a prior deportation in
violation of 8 U.S.C. § 1326. In the district court he moved
to dismiss the indictment on the ground that the prior
deportation order was fundamentally unfair. See 8 U.S.C.
§ 1326(d). After the district court denied his motion,
Gonzalez-Villalobos entered a conditional guilty plea,
preserving his right to appeal the denial of the motion. On
appeal, he renews his challenge to the prior deportation order.
When a defendant collaterally attacks the validity of a
prior deportation order in a § 1326 prosecution, he must show
that he exhausted his administrative remedies, that the
deportation proceedings improperly deprived him of the
opportunity for judicial review, and that entry of the prior
deportation order was fundamentally unfair. See 8 U.S.C.
§ 1326(d)(1)–(3). As we explain below, we have generally
found that where an alien was deprived of the opportunity to
exhaust his administrative remedies, satisfying § 1326(d)(1),
he also has shown that he was deprived of the opportunity to
seek judicial review, satisfying § 1326(d)(2). Here,
Gonzalez-Villalobos has shown that he exhausted his
administrative remedies by appealing the Immigration Judge
(“IJ”)’s adverse ruling to the Board of Immigration Appeals
(“BIA”). However, he has failed to show that an error or
obstacle related to his deportation proceedings improperly
deprived him of the opportunity for judicial review, as
required by 8 U.S.C. § 1326(d)(2). Because subsections
(d)(1), (d)(2), and (d)(3) must all be satisfied either directly
or constructively, we affirm the denial of Gonzalez-
4 UNITED STATES V . GONZALEZ-VILLALOBOS
Villalobos’s motion to dismiss and his conviction without
addressing the merits of his argument that the alleged prior
deportation proceeding was fundamentally unfair.
I.
FACTUAL AND PROCEDURAL HISTORY
A.
The events surrounding the underlying deportation in this
case occurred more than twenty years ago.1 In March 1986,
Gonzalez-Villalobos was arrested in Yakima, Washington,
for possession of a controlled substance (cocaine) with intent
to deliver. He was eventually convicted of this offense in the
Superior Court of Washington, County of Yakima, in July
1986. In connection with Gonzalez-Villalobos’s arrest,
agents from the Immigration and Naturalization Service
(“INS”) assisted the local police with the service and
execution of a search warrant at his house.2 A few days after
1
W e have recognized that “the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (‘IIRIRA’) amended the
immigration statutes so as to eliminate the previous legal distinction
between deportation, removal and exclusion, merging all of these
proceedings into a broader category entitled ‘removal proceedings.’”
United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir. 1999). W e
continue to use the term “deportation” in this opinion, however, to track
the language of 8 U.S.C. § 1326. See id. at 935 (concluding that “any
distinction between deportation and removal is legally insignificant for
purposes of § 1326”).
2
“As of March 2003, INS became United States Citizenship and
Immigration Services, an agency within the Department of Homeland
Security.” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1013 n.1 (9th
Cir. 2008).
UNITED STATES V . GONZALEZ-VILLALOBOS 5
the arrest, an INS agent prepared form I-213, “Record of
Deportable Alien,” in which he recorded Gonzalez-
Villalobos’s immigration status and the events surrounding
his arrest. The I-213 contained an A-file number ending in
“910.” The next day, INS served Gonzalez-Villalobos with
an order to show cause, alleging that he was deportable as an
alien in the United States who entered without inspection.
When INS could not locate Gonzalez-Villalobos, it
administratively closed the deportation proceeding in January
1987. As it turned out, Gonzalez-Villalobos was incarcerated
in federal prison, where he was serving a sentence for being
an alien in possession of a firearm.3 Gonzalez-Villalobos
completed his federal sentence in December 1987 and upon
his release he was taken into custody by INS. A few weeks
later, INS released him from custody because it determined
that he was a class member in a pending class action. The
agency then cancelled the pending order to show cause.
After his release from INS custody, Gonzalez-Villalobos
applied for legal status through the “special agricultural
worker” (“SAW”) program in May 1988. See 8 U.S.C.
§ 1160; 8 C.F.R. § 210.3.4 INS assigned Gonzalez-
Villalobos’s SAW application a different A-file number,
ending in “678.” It denied his SAW application in November
3
This conviction arose from the same incident as his state drug
conviction.
4
The SAW program was a program through which certain aliens who
had resided in the United States and “performed seasonal agricultural
services in the United States for at least 90 man-days, during the 12-month
period ending on May 1, 1986” could obtain temporary legal status, which
would automatically adjust to permanent resident status after a period of
time. 8 U.S.C. § 1160(a); see also Soriano-Vino v. Holder, 653 F.3d
1096, 1099 (9th Cir. 2011); 8 C.F.R. § 210.5(a).
6 UNITED STATES V . GONZALEZ-VILLALOBOS
1989 on the ground that his state drug conviction rendered
him ineligible for the program. Gonzalez-Villalobos
appealed, and the INS Legalization Appeals Unit affirmed the
denial of his application in February 1991. Apparently
unaware of the Appeals Unit’s ruling, Gonzalez-Villalobos
visited an INS office in November 1991 to inquire about the
status of his SAW application. While there, he was detained
by INS agents, who immediately completed a second I-213,
reciting Gonzalez-Villalobos’s conviction record and
detention history. This I-213 had the same A-file number as
the one prepared in 1986, ending in “910.” The next day, INS
issued an order to show cause, alleging that Gonzalez-
Villalobos was deportable as an alien who had been convicted
of a controlled substance offense.
At a deportation hearing in April 1992, Gonzalez-
Villalobos argued that INS agents wrongfully discovered his
conviction record by looking through the SAW file. He
argued that “when he went to check on his legalization
application and the current status of it, they reviewed the
computer and the file and asked him to wait there. They
made a phone call and subsequently, from across the hall,
where the deportation section and the legalization office are
in the same building across the hall, came the agent from
INS.”
Gonzalez-Villalobos requested a suppression hearing so
that he could question the INS agents on how they obtained
his criminal history record. In response, the IJ asked the
government’s attorney to “assure [him] as an officer of the
Court that [the evidence] did not result from a sting operation
being operated by the investigative arm of the Service in
conjunction with the legalization office.” The government’s
attorney informed the court that he was not offering any
UNITED STATES V . GONZALEZ-VILLALOBOS 7
evidence that came from the SAW legalization file. The IJ
then denied the request for a suppression hearing, stating that
“the evidence submitted by the Service was totally
independent of the legalization process.” She further
concluded that Gonzalez-Villalobos was not eligible for any
relief and accordingly entered a deportation order. The IJ
also informed Gonzalez-Villalobos and his attorney of the
right to appeal her ruling to the BIA. Gonzalez-Villalobos
timely appealed, primarily challenging the IJ’s denial of his
request for a suppression hearing.
The BIA subsequently dismissed Gonzalez-Villalobos’s
appeal, finding that he had not carried his burden of justifying
the need for a suppression hearing. Gonzalez-Villalobos then
applied for a stay of deportation, which INS denied in April
1999. The record does not reflect whether he filed a petition
for review in the Ninth Circuit, but it does reflect that he filed
a petition for a writ of habeas corpus in the United States
District Court for the Western District of Washington. Upon
filing the petition, he sought a temporary restraining order
enjoining his deportation. He was deported to Mexico,
however, on April 13, 1999. Shortly afterwards, Gonzalez-
Villalobos agreed to dismiss the petition and withdraw the
motion.
B.
The events leading to Gonzalez-Villalobos’s current
prosecution are fairly straightforward. At some point after
being deported, Gonzalez-Villalobos returned to the United
States. He was located in Yakima County in July 2011, and
a few weeks later, he was arrested and charged with being an
alien in the United States after deportation, in violation of
8 U.S.C. § 1326. The parties agree that the 1992 deportation
8 UNITED STATES V . GONZALEZ-VILLALOBOS
order, affirmed by the BIA in 1999, was the alleged prior
deportation. Gonzalez-Villalobos moved to dismiss the
indictment on the ground that the 1992 deportation order was
invalid because the IJ had erred in denying his motion for a
suppression hearing. The district court denied the motion,
finding that even if the IJ had erred in denying Gonzalez-
Villalobos’s motion, he could not establish prejudice.
Gonzalez-Villalobos then entered a conditional guilty plea,
preserving his right to appeal the district court’s denial of his
motion to dismiss. Following entry of the judgment and
commitment order, Gonzalez-Villalobos timely appealed. He
argues that the underlying deportation order was
fundamentally unfair, and therefore invalid, because it was
based on conviction records that the INS agents unlawfully
discovered in his SAW file, and because the IJ did not grant
an evidentiary hearing on how the agents obtained those
records.5
5
Gonzalez-Villalobos argues that the conviction records should have
been suppressed. Although the exclusionary rule generally does not apply
in civil deportation proceedings, Martinez-Medina v. Holder, 673 F.3d
1029, 1033 (9th Cir. 2011), it does apply where the immigration agency
violates its own rules if (1) “the regulation serves a purpose of benefit to
the alien,” and (2) “the violation prejudiced interests of the alien which
were protected by the regulation,” United States v. Calderon-Medina,
591 F.2d 529, 531 (9th Cir. 1979); see also Hong v. Mukasey, 518 F.3d
1030, 1035 (9th Cir. 2008). Here, Gonzalez-Villalobos argues that his
conviction records should have been suppressed because the INS agents
violated 8 U.S.C. § 1160(b)(6)(A), a statutory confidentiality guarantee for
SAW applicants. At the time of the alleged violation, this provision
prohibited officials from using information provided in a SAW application
“for any purpose other than to make a determination on the application.”
8 U.S.C. § 1160(b)(6)(A) (1991).
UNITED STATES V . GONZALEZ-VILLALOBOS 9
II.
STANDARD OF REVIEW
We review de novo the denial of a motion to dismiss an
indictment alleging a violation of 8 U.S.C. § 1326 when the
basis for the motion is an alleged due process violation in the
underlying deportation proceeding. United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We review
for clear error the district court’s factual findings. United
States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006).
III.
ANALYSIS
In a prosecution for illegal reentry under 8 U.S.C.
§ 1326(a), the government must prove, inter alia, that the
defendant was previously “denied admission, excluded,
deported, or removed or has departed the United States while
an order of exclusion, deportation, or removal [wa]s
outstanding.” 8 U.S.C. § 1326(a)(1); see also 9th Cir. Model
Crim. Jury Instr. 9.8 (2010). The defendant, in turn, has a due
process right to collaterally attack the underlying deportation
order, because it serves as a predicate element of the crime
for which he is charged. United States v. Mendoza-Lopez,
481 U.S. 828, 837–38 (1987) (“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.”). Thus, “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
10 UNITED STATES V . GONZALEZ-VILLALOBOS
be used to establish conclusively an element of a criminal
offense.” Id. at 838; see also United States v. Zarate-
Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), overruled on
other grounds by United States v. Corona-Sanchez, 291 F.3d
1201 (9th Cir. 2012) (en banc) (“In a criminal prosecution
under § 1326, the Due Process Clause of the Fifth
Amendment requires a meaningful opportunity for judicial
review of the underlying deportation. If the defendant’s
deportation proceedings fail to provide this opportunity, the
validity of the deportation may be collaterally attacked in the
criminal proceeding.” (citation omitted)).
A defendant who collaterally challenges the alleged
deportation order must establish the following:
(1) [he] 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 [him] of
the opportunity for judicial review; and
(3) the entry of the order was fundamentally
unfair.
8 U.S.C. § 1326(d) (emphasis added); see also United States
v. Reyes-Bonilla, 671 F.3d 1036, 1043 n.4 (9th Cir. 2012),
cert. denied, 133 S. Ct. 322 (2012) (“Through the addition of
subsection (d) to [8 U.S.C. § 1326] in 1996, Congress
partially codified the Court’s decision in Mendoza–Lopez.”).
We conclude that Gonzalez-Villalobos has failed to show that
the deportation proceeding at which his deportation order was
issued improperly deprived him of the opportunity for
UNITED STATES V . GONZALEZ-VILLALOBOS 11
judicial review, as required by 8 U.S.C. § 1326(d)(2), and
therefore has not met his burden under § 1326(d).6
A.
Although 8 U.S.C. § 1326(d)(1) and (d)(2) are separate
requirements, we have generally held that where an alien is
deprived of his right to appeal to the BIA, he satisfies both
(d)(1) and (d)(2). This makes sense, because an alien who
fails to exhaust his administrative remedies due to an error in
the underlying proceedings, satisfying (d)(1), will typically
also be deprived of the opportunity for judicial review,
satisfying (d)(2).7 See United States v. Pallares-Galan,
359 F.3d 1088, 1096 (9th Cir. 2004) (“Effective deprivation
of an alien’s administrative appeal serves to deprive him of
the opportunity for judicial review as well.”).
The cases in which we have determined that § 1326(d)(1)
and (d)(2) were satisfied can be divided into three
overlapping categories. First, we have held that § 1326(d)(1)
and (d)(2) are satisfied when the IJ failed to inform the alien
6
Because we conclude that Gonzalez-Villalobos failed to carry his
burden with respect to 8 U.S.C. § 1326(d)(2), we do not reach his
argument that the IJ’s denial of an evidentiary hearing and failure to
suppress his conviction records resulted in the entry of an order that was
“fundamentally unfair.” See 8 U.S.C. § 1326(d)(3); see also supra note 5.
7
Put another way, in such cases the defendant is excused from satisfying
(d)(1) and satisfies (d)(2). See, e.g., Ubaldo-Figueroa, 364 F.3d at 1050
(concluding that “although Ubaldo-Figueroa did not exhaust his
administrative remedies by appealing his removal order to the BIA in
1998, he is exempted from the exhaustion bar because his waiver of his
right to appeal was not sufficiently considered and intelligent,” and as a
result, he was “deprived of the opportunity for meaningful judicial
review” (internal quotation marks omitted)).
12 UNITED STATES V . GONZALEZ-VILLALOBOS
that he had a right to appeal his deportation order to the BIA.
See Ubaldo-Figueroa, 364 F.3d at 1050 (“Ubaldo-Figueroa
was deprived of the opportunity for meaningful judicial
review because the IJ did not inform him of his right to
appeal his deportation order.”); Reyes-Bonilla, 671 F.3d at
1045 (same).
Second, we have held that an IJ’s failure to inform the
alien that he is eligible for a certain type of relief also
satisfies § 1326(d)(1) and (d)(2), because “an alien who is not
made aware of ‘his or her apparent eligibility’ for relief has
had no ‘meaningful opportunity to appeal’ the removal and
seek such relief.” United States v. Vidal-Mendoza, 705 F.3d
1012, 1015 (9th Cir. 2013) (citations omitted); see also
United States v. Lopez-Velasquez, 629 F.3d 894, 901 (9th Cir.
2010) (en banc) (holding that an IJ must “inform the alien of
a reasonable possibility that the petitioner may be eligible for
relief” (internal quotation marks omitted)).8 Thus, we held
that § 1326(d)(1) and (d)(2) were satisfied when the IJ
improperly characterized a prior conviction as an aggravated
felony and erroneously informed the alien that he was
ineligible for discretionary relief, Camacho-Lopez, 450 F.3d
at 930; Pallares-Galan, 359 F.3d at 1103; United States v.
Leon-Paz, 340 F.3d 1003, 1005–06 (9th Cir. 2003); when the
IJ did not inform the alien that he was eligible for voluntary
departure or failed to give him an opportunity to apply for
8
W e also have held that § 1326(d)(1) and (d)(2) are satisfied when the
government, rather than the IJ, misinforms an alien that he is ineligible for
relief. United States v. Arias-Ordonez, 597 F.3d 972, 977 (9th Cir. 2010)
(considering an order to report for removal that erroneously informed the
alien that “no administrative relief” was available to him, and noting that
it is “well established that § 1326(d)’s requirements of exhaustion and
deprivation of judicial review are satisfied when the government
misinforms an alien that he is ineligible for relief”).
UNITED STATES V . GONZALEZ-VILLALOBOS 13
such relief, United States v. Melendez-Castro, 671 F.3d 950,
954 (9th Cir. 2012); United States v. Ortiz-Lopez, 385 F.3d
1202, 1204 n.2 (9th Cir. 2004); and when the IJ did not
inform the alien that he was eligible for relief under INA
§ 212(c), Ubaldo-Figueroa, 364 F.3d at 1049–50, or INA
§ 212(h), United States v. Arrieta, 224 F.3d 1076, 1079 (9th
Cir. 2000) (not discussing (d)(1) or (d)(2) specifically, but
concluding that because Arrieta was not informed of his
eligibility for a § 212(h) waiver, he was denied due process
and a meaningful opportunity for judicial review).
Third, when an alien has waived his right to appeal to the
BIA, he can nevertheless satisfy § 1326(d)(1) and (d)(2) by
showing that his waiver was not “considered and intelligent.”
Reyes-Bonilla, 671 F.3d at 1043; see also United States v.
Ramos, 623 F.3d 672, 682 (9th Cir. 2010) (concluding that
alien’s “waiver of his right to appeal . . . was procedurally
defective and deprived him of the opportunity for meaningful
judicial review,” thereby meeting his burden under 8 U.S.C.
§ 1326(d)(1) and (d)(2)). This category of cases often
overlaps with the prior two categories, since the IJ’s failure
to inform an alien of his right to appeal, or his eligibility for
relief, can form the basis of an invalid waiver of the right to
appeal. See, e.g., Ubaldo-Figueroa, 364 F.3d at 1048
(“Ubaldo-Figueroa’s waiver of his right to appeal his removal
order was not sufficiently ‘considered and intelligent’
because the IJ presiding over the removal proceeding failed
to inform him that he had the right to appeal his removal
order to the BIA.”); Pallares-Galan, 359 F.3d at 1096
(holding that an alien’s waiver of his right to appeal was not
“considered and intelligent” because the IJ erroneously told
him that he was ineligible for relief); Arrieta, 224 F.3d at
1079 (“Mr. Arrieta argues persuasively that he could not
make a considered and intelligent decision about his right to
14 UNITED STATES V . GONZALEZ-VILLALOBOS
appeal because the IJ never informed him of his eligibility for
a § 212(h) waiver.”).9
B.
Against this legal backdrop, we turn to Gonzalez-
Villalobos’s challenge to the validity of the 1992 deportation
order. Here, unlike in the cases discussed above, we cannot
resolve 8 U.S.C. § 1326(d)(1) and (d)(2) in the same stroke.
Gonzalez-Villalobos has clearly satisfied 8 U.S.C.
§ 1326(d)(1) by showing that he appealed the IJ’s decision to
the BIA. But he has failed to show that “the deportation
proceedings at which the order was issued improperly
deprived [him] of the opportunity for judicial review,” as
required by 8 U.S.C. § 1326(d)(2). Unlike the errors
discussed above, the error that Gonzalez-Villalobos
alleges—the denial of an evidentiary hearing—is not an error
9
W e do not suggest that these are the only situations in which an alien
can satisfy the requirements of 8 U.S.C. § 1326(d)(2). See, e.g., United
States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003) (“Deprivation of the
opportunity for judicial review can be established by demonstrating
ineffective assistance of counsel, and the failure of counsel to file a
§ 212(c) application can constitute ineffective assistance of counsel.”). Cf.
United States v. Villavicencio-Burruel, 608 F.3d 556, 560 n.2 (9th Cir.
2010) (finding that 8 U.S.C. § 1326(d)(1) was not satisfied, and
distinguishing Perez on the ground that “counsel [in Perez] stated at the
deportation hearing that he ‘would file’ an application for relief and then
failed to do so in a timely fashion without informing his client, thus failing
to act as competent counsel,” whereas in Villavicencio-Burruel, the court
could not “conclude that the attorney exceeded her authority or failed to
act as competent counsel by not pursuing an appeal,” because the alien’s
attorney “reserved a right of appeal on his client’s behalf, but did not state
that she would file an appeal” and the record was “silent on whether
Villavicencio authorized or directed his attorney to file an appeal”).
UNITED STATES V . GONZALEZ-VILLALOBOS 15
that, by its nature, affected his awareness of or ability to seek
judicial review.
Nor does Gonzalez-Villalobos allege an error so harmful
or pervasive that it altered the course of his deportation
proceedings such that he was effectively deprived of the
opportunity for judicial review. This is perhaps unsurprising,
given that Gonzalez-Villalobos did, in fact, seek judicial
review. After appealing the IJ’s decision to the BIA, he filed
a petition for a writ of habeas corpus in the United States
District Court for the Western District of Washington, which
he later dismissed. He does not argue that his ability to file
the habeas petition was constrained by the alleged error at his
deportation proceeding, nor does he argue that the error
caused him to raise inapposite arguments in the petition or
affected his decision to voluntarily withdraw the petition.
Instead, Gonzalez-Villalobos asks the court to find that he
was deprived of judicial review on the ground that he has a
right to “meaningful review of the underlying deportation,”
and in the absence of prior judicial review, is entitled to it
now.10
10
In response to the court’s request for supplemental briefing on whether
Gonzalez-Villalobos had satisfied 8 U.S.C. § 1326(d)(2), Gonzalez-
Villalobos also argued that he “[h]ypothetically . . . might have been
eligible for § 212(c) relief at the time of his immigration proceedings,”
and the IJ’s failure to advise him of such relief “may have” improperly
deprived him of the opportunity for judicial review. This argument was
not raised in Gonzalez-Villalobos’s opening brief and is therefore waived.
Even if it were not waived, Gonzalez-Villalobos has failed to identify any
facts that should have alerted the IJ to the possibility that he was eligible
for such relief. See Lopez-Velasquez, 629 F.3d at 900 (“[T]he IJ is not
required to advise an alien of possible relief when there is no factual basis
for relief in the record.”).
16 UNITED STATES V . GONZALEZ-VILLALOBOS
We decline to adopt Gonzalez-Villalobos’s argument,
which is based on a misreading of Mendoza-Lopez and
8 U.S.C. § 1326(d)(2). In Mendoza-Lopez, the Supreme
Court held 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 (emphasis added). And the requirements of
8 U.S.C. § 1326(d) likewise make clear that it is not enough
for the defendant to show that “the entry of the order was
fundamentally unfair,” as required by (d)(3), and that he
exhausted his administrative remedies, as required by (d)(1);
he must also show that “the deportation proceedings at which
the order was issued improperly deprived [him] of the
opportunity for judicial review.” See 8 U.S.C. § 1326(d)(2).
In other words, where the defendant has failed to identify
any obstacle that prevented him from obtaining judicial
review of a deportation order, he is not entitled to such review
as part of a collateral attack under 8 U.S.C. § 1326(d). See
United States v. Adame-Orozco, 607 F.3d 647, 652 (10th Cir.
2010) (“There can be no genuine dispute that [the defendant]
received what process § 1326(d)(2) promises. He freely
admits that he was able to (and did) appeal the IJ’s
deportation order to the BIA, and he identifies no impediment
to his ability to appeal the BIA’s decision to a federal
court.”); see also United States v. Hinojosa-Perez, 206 F.3d
832, 836 (9th Cir. 2000) (holding that § 1326(d)(2) was not
satisfied where the defendant alleged a failure to provide
notice of his deportation hearing, because “the doors to the
courts were open to [the defendant’s] lack of notice due
process argument”).
UNITED STATES V . GONZALEZ-VILLALOBOS 17
Although we have “interpreted [the] narrow criteria [of
§ 1326(d)] broadly,” Vidal-Mendoza, 705 F.3d at 1015, where
a defendant has fully exhausted his administrative remedies,
we conclude that the defendant must show an actual or
constructive inability to seek judicial review, related to an
alleged error or obstacle in the deportation proceedings, to
satisfy § 1326(d)(2).11 Gonzalez-Villalobos has failed to do
so here, and therefore has not met his burden pursuant to
8 U.S.C. § 1326(d)(2).
IV.
CONCLUSION
We conclude that Gonzalez-Villalobos failed to carry his
burden of showing that “the deportation proceedings at which
the [deportation] order was issued improperly deprived [him]
of the opportunity for judicial review,” and therefore his
collateral attack on the underlying deportation order cannot
be sustained. 8 U.S.C. § 1326(d)(2).
AFFIRMED.
11
W e do not suggest that the alleged error or obstacle in the deportation
proceedings that deprived a defendant of judicial review must be the same
as the alleged error or obstacle that made entry of the deportation order
fundamentally unfair. A defendant could conceivably collaterally attack
a prior deportation order by asserting that one defect in the prior
deportation proceedings made entry of the deportation order unfair (e.g.,
that he was unfairly precluded from presenting evidence demonstrating his
entitlement to relief) and a different obstacle or defect in the deportation
proceedings deprived him of judicial review (e.g., ineffective assistance
of counsel).