United States v. Lopez-Vasquez ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50918
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL LOPEZ-VASQUEZ, also known as
Carlos Gonzalez-Gonzalez,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Texas
August 16, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Juan Manuel Lopez-Vasquez (Lopez-Vasquez)
appeals his conviction of one count of illegally reentering the United
States without having obtained the Attorney General’s consent, in
violation of 8 U.S.C. § 1326. He challenges the denial of his motion
to dismiss the indictment or to suppress the evidence of his previous
removal from the United States. Concluding that the district court
properly denied Lopez-Vasquez’s motion, we affirm.
Facts and Proceedings Below
On June 6, 1998, Lopez-Vasquez attempted to cross the border from
Mexico into the United States at the Paso del Norte Port of Entry in El
Paso, Texas, by declaring himself to be a United States citizen. When
he was unable to supply proof of United States citizenship, Lopez-
Vasquez was referred to a secondary inspection area for further
interview. There, Lopez-Vasquez admitted to the Immigration and
Naturalization Service (INS) inspectors that he was not a United
States citizen, but rather, a Mexican citizen. The INS inspectors
determined Lopez-Vasquez to be ineligible for admission into the
United States and, pursuant to 8 U.S.C. § 1225(b)(1)(A)(i)1, placed
him in “expedited removal proceedings” and ordered him removed2
1
Because the removal proceedings against Lopez-Vasquez commenced
in June 1998, the permanent provisions of the Illegal Immigration and
Reform and Immigrant Responsibility Act of 1996 (IIRIRA) were in effect,
including IIRIRA § 302(b)(1)(A)(i), now codified at 8 U.S.C. §
1225(b)(1)(A)(i). See Lopez-Elias v. Reno, 209 F.3d 788, 790 n.1 (5th
Cir. 2000) (stating that proceedings commenced after April 1, 1997 are
governed by IIRIRA’s permanent provisions) (citations omitted). Under
§ 1225(b)(1)(A)(i), if an INS inspector determines during secondary
inspection that an alien who is seeking entry into the United States at
a port of entry is inadmissible because the alien has made a false claim
of United States citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), the
inspector “shall order the alien removed from the United States without
further hearing or review unless the alien indicates either an intention
to apply for asylum under [8 U.S.C. §] 1158 . . . or a fear of
prosecution.” 8 U.S.C. § 1225(b)(1)(A)(i). During his secondary
inspection, Lopez-Vasquez declared in a sworn statement that he had no
fear of returning to Mexico and did not seek asylum.
2
Before IIRIRA’s enactment in 1996, individuals such as Lopez-
Vasquez who were ineligible for admission into the United States and
were never admitted into the United States were referred to as
“excludable,” while aliens who had gained admission, but later became
subject to expulsion from the United States, were referred to as
“deportable.” See 8 U.S.C. §§ 1182, 1251 (1994); see also Landon v.
Plasencia, 103 S. Ct. 321, 325 (1982) (“The deportation hearing is the
usual means of proceeding against an alien already physically in the
United States, and the exclusion hearing is the usual means of
2
from the United States that day. Accordingly, Lopez-Vasquez was
never admitted into the United States. Before Lopez-Vasquez’s
departure from the secondary inspection area, the INS inspectors
provided him with a form stating that: (1) he was ineligible for
admission to the United States because he had made a false claim of
United States citizenship; (2) he was prohibited from reentering or
attempting to reenter the United States for a period of five years
without first obtaining the consent of the Attorney General to
reapply for admission; and (3) 8 U.S.C. § 1326 makes it a crime
punishable by a fine and/or imprisonment for a period of up to
twenty years for him to enter, attempt to enter, or be found in the
United States without such consent.
On December 13, 1998, Lopez-Vasquez was found in El Paso,
Texas by United States Border Patrol agents. The agents arrested
Lopez-Vasquez when he could not provide documentation authorizing
him to be present in the United States. It was later discovered
that Lopez-Vasquez had previously been ordered removed from the
proceeding against an alien outside the United States seeking
admission.”). Excludable aliens are now referred to as “inadmissible.”
See 8 U.S.C. § 1182. As many of the cases we discuss in resolving this
appeal were decided before 1996, we will use the terms “inadmissible”
and “excludable” interchangeably. In addition, IIRIRA has “‘d[one] away
with the previous legal distinction among deportation, removal, and
exclusion proceedings.’” United States v. Pena-Renovato, 168 F.3d 163,
164 (5th Cir. 1999) (quoting United States v. Pantin, 155 F.3d 91, 92
(2d Cir. 1998), cert. denied, 119 S. Ct. 835 (1999)); see IIRIRA § 304
(codified at 8 U.S.C. §§ 1229-1229c). Now, the term “removal
proceedings” refers to proceedings applicable to both inadmissible and
deportable aliens. See 8 U.S.C. § 1229a(e)(2).
3
United States and had not received the Attorney General’s consent
to reenter the United States, and he was indicted for illegally
reentering the United States, in violation of 8 U.S.C. § 1326.
Before trial, Lopez-Vasquez moved to dismiss the indictment or to
suppress evidence of his June 1998 removal, based on his assertion
that, because the procedures used to remove him violated due
process and were not subject to judicial review, his June 1998
removal order may not be used as evidence against him in his
criminal prosecution for illegal reentry. In addition, Lopez-
Vasquez contended that if he had been afforded due process, he
could have avoided removal because he would have been informed that
he could have applied for voluntary departure under 8 U.S.C. §
1229c3 or withdrawn his application for admission under 8 U.S.C. §
1225(a)(4)4. Lopez-Vasquez, however, never challenged the INS’s
having found him inadmissible for having falsely claimed to be a
United States citizen in attempting to enter the United States on
June 6, 1998.
3
8 U.S.C. § 1229c(a) states as follows:
“The Attorney General may permit an alien voluntarily
to depart the United States at the alien’s own expense under
this subsection, in lieu of being subject to proceedings
under section 1229a of this title or prior to the completion
of such proceedings, if the alien is not deportable under
section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this
title.”
4
8 U.S.C. § 1225(a)(4) provides that “[a]n alien applying for
admission may, in the discretion of the Attorney General and at any
time, be permitted to withdraw the application for admission and depart
immediately from the United States.”
4
The district court denied Lopez-Vasquez’s motion to dismiss or
to suppress, noting that in order to successfully challenge the use
of his June 1998 removal order in his illegal reentry prosecution,
Lopez-Vasquez must establish that his removal was not subject to
judicial review and was fundamentally unfair causing him prejudice.
In denying Lopez-Vasquez’s motion, the district court focused on
Lopez-Vasquez’s failure to prove prejudice. With regard to Lopez-
Vasquez’s claim that he could have applied for voluntary departure,
the district court found it to be without merit because the
Government had established that such relief is discretionary and
that Lopez-Vasquez would not have been allowed to depart
voluntarily because he had previously been granted a voluntary
departure on March 29, 1997. See 8 U.S.C. § 1229c(c)5. As to
Lopez-Vasquez’s assertion that he could have withdrawn his
application for admission, thereby avoiding removal, the district
court held that this relief was also purely discretionary and that,
under current INS policies, Lopez-Vasquez would not have been
granted such relief because he had previously been convicted of a
criminal offense–unauthorized use of a vehicle6. Based on these
5
8 U.S.C. § 1229c(c) states that “[t]he Attorney General shall
not permit an alien to depart voluntarily under this section if the
alien was previously permitted to so depart after having been found
inadmissible under section 1182(a)(6)(A) of this title.”
6
On November 6, 1997, Lopez-Vasquez pleaded guilty in Texas state
court to the offense of unauthorized use of a vehicle and was sentenced
to two years’ community supervision. Texas law describes unauthorized
use a vehicle as follows:
5
conclusions, the district court determined that because Lopez-
Vasquez could not establish any prejudice that resulted from the
procedures used to remove him, he could not show that his removal
was fundamentally unfair. Therefore, the district court ruled that
Lopez-Vasquez’s June 1998 removal order could serve as an element
of his prosecution for illegal reentry under 8 U.S.C. § 1326.
Lopez-Vasquez then moved for reconsideration of the denial of
his motion, asserting that the case law did not require him to
prove that he probably suffered prejudice, instead claiming only a
showing of prejudice was necessary. He also contended that in June
1998 he was entitled to a future visa based on his having an
immediate relative, his father, who was a lawful permanent resident
of the United States7, and therefore would not have been removed if
the removal procedures were not so lacking in procedural fairness.
Moreover, he maintained that his prior conviction for unauthorized
use of a vehicle was not an aggravated felony or a crime of
violence and thus did not disqualify him from either withdrawing
his application for admission or receiving relief based on his
“(a) A person commits an offense if he intentionally or
knowingly operates another’s boat, airplane, or motor-
propelled vehicle without the effective consent of the owner.
(b) An offense under this section is a state jail
felony.” TEXAS PENAL CODE § 31.07
7
Curiously, in his June 6, 1998 sworn statement to an INS
inspector, Lopez-Vasquez declared that neither of his parents had ever
legally immigrated to the United States. Nor did Lopez-Vasquez inform
the INS inspector that he was entitled to a visa or had a pending visa
application.
6
entitlement to a visa. In response, the Government stated that
Lopez-Vasquez was not eligible for a visa and, even if he had
obtained one, his status as an aggravated felon, based on his
conviction of unauthorized use of a vehicle8, would have precluded
his entry under it. The district court carried Lopez-Vasquez’s
motion for reconsideration to trial.
Lopez-Vasquez waived his right to a jury trial and stipulated
to the following facts: (1) he was an alien; (2) he was removed
from the United States in an INS administrative proceeding on June
6, 1998; (3) he was found in the United States on or about December
13, 1998; and (4) he had not received the Attorney General’s
consent to reapply for admission into the United States since his
June 1998 removal and prior to his having been found in the United
States on or about December 13, 1998. After a bench trial, the
district court denied Lopez-Vasquez’s motion for reconsideration of
his motion to dismiss and/or to suppress and found him guilty of
the offense of illegal reentry. The district court sentenced
Lopez-Vasquez to ten months’ imprisonment and two years’ non-
reporting supervised release. Lopez-Vasquez timely appealed to
8
This Court has held that “the unauthorized use of motor vehicle
. . . qualifies as a crime of violence under 18 U.S.C. § 16” and as an
aggravated felony for purposes of sentencing under U.S.S.G. § 2L.1.2.
United States v. Galvan-Rodriguez, 169 F.3d 217, 220 (5th Cir. 1999)
(per curiam). Moreover, for an offense to be considered an aggravated
felony, it must be punishable by a sentence of at least one year. We
held that Galvan-Rodriguez’s five-year deferred adjudication sentence
satisfied this requirement. See id. at 219-20 & n.4.
7
this Court.
Discussion
Lopez-Vasquez contends that the district court erred in denying his
motion to dismiss or to suppress. Lopez-Vasquez asserts that the
removal procedures did not provide for judicial review of his removal
and, in fact, 8 U.S.C. § 1225(b)(1)(D)9 strips the district court and
this Court of jurisdiction to consider whether his removal violated due
process and caused him prejudice. Lopez-Vasquez argues that this
complete lack of judicial review makes it unconstitutional to permit his
June 1998 removal to be used as an element of his instant conviction for
violating 8 U.S.C. § 132610. We review Lopez-Vasquez’s
9
8 U.S.C. § 1225(b)(1)(D) provides:
“In any action brought against an alien under section
1325(a) of this title or section 1326 of this title, the
court shall not have jurisdiction to hear any claim attacking
the validity of an order of removal entered under
subparagraph (A)(i) or (B)(iii).”
10
8 U.S.C. § 1326 states:
“(a) Subject to subsection (b) of this section, any
alien who–
(1) has been denied admission, excluded, deported,
or removed or has departed the United States while an
order of exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at any time
found in, the United States, unless (A) prior to his
reembarkation at a place outside the United States or
his application for admission from foreign contiguous
territory, the Attorney General has expressly consented
to such alien’s reapplying for admission; or (B) with
respect to an alien previously denied admission and
removed, unless such alien shall establish that he was
not required to obtain such advance consent under this
chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than
8
2 years, or both.
(b) Notwithstanding subsection (a) of this section, in
the case of any alien described in such subsection–
(1) whose removal was subsequent to a conviction
for commission of three or more misdemeanors involving
drugs, crimes against the person, or both, or a felony
(other than an aggravated felony), such alien shall be
fined under Title 18, imprisoned not more than 10
years, or both;
(2) whose removal was subsequent to a conviction
for commission of an aggravated felony, such alien
shall be fined under such Title, imprisoned not more
than 20 years, or both;
(3) who has been excluded from the United States
pursuant to section 1225(c) of this title because the
alien was excludable under section 1182(a)(3)(B) of
this title or who has been removed from the United
States pursuant to the provisions of subchapter V of
this chapter, and who thereafter, without the
permission of the Attorney General, enters the United
States, or attempts to do so, shall be fined under
Title 18 and imprisoned for a period of 10 years, which
sentence shall not run concurrently with any other
sentence[;] or
(4) who was removed from the United States
pursuant to section 1231(a)(4)(B) of this title who
thereafter, without the permission of the Attorney
General, enters, attempts to enter, or is at any time
found in, the United States (unless the Attorney
General has expressly consented to such alien’s
reentry) shall be fined under Title 18, imprisoned for
not more than 10 years, or both.
For the purposes of this subsection, the term ‘removal’
includes any agreement in which an alien stipulates to
removal during (or not during) a criminal trial under either
Federal or State law.
(c) Any alien deported pursuant to section 1252(h)(2)
of this title who enters, attempts to enter, or is at any
time found in, the United States (unless the Attorney General
has expressly consented to such alien’s reentry) shall be
incarcerated for the remainder of the sentence of
imprisonment which was pending at the time of deportation
without any reduction for parole or supervised release. Such
alien shall be subject to such other penalties relating to
the reentry of deported aliens as may be available under this
section or any other provision of law.
(d) In a criminal proceeding under this section, an
9
constitutional challenge de novo. See United States v. Sierra-
Hernandez, 192 F.3d 501, 503 (5th Cir. 1999), cert. denied, 120 S. Ct.
1213 (2000).11
Lopez-Vasquez’s argument principally relies on the Supreme Court’s
decision in United States v. Mendoza-Lopez, 107 S. Ct. 2148 (1987). In
Mendoza-Lopez, the Court considered the use of deportation orders in the
criminal prosecution of two aliens for illegal reentry, in violation of
8 U.S.C. § 1326. See id. at 2150-51. Before the district court, the
alien may not challenge the validity of the deportation order
described in subsection (a)(1) or subsection (b) of this
section 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 reviews and
(3) the entry of the order was fundamentally
unfair.”
11
The Government contends that we should review the district
court’s denial of Lopez-Vasquez’s motion to dismiss for plain error
only, because Lopez-Vasquez did not raise the contention he now urges
in the court below. Despite conceding that he did not cite to the
district court the statute, 8 U.S.C. § 1225(b)(1)(D), Lopez-Vasquez now
claims that it stripped the district court of jurisdiction to review his
removal and that our consideration of this issue is not limited to plain
error. Determining the appropriate standard of review is further
complicated by the fact that Lopez-Vasquez’s argument implicates the
jurisdiction of the federal courts–an issue that “cannot be waived and
can be raised at any time.” Barnes v. Levitt, 118 F.3d 404, 410 (5th
Cir. 1997); see Ruhrgas AG v. Marathon Oil Co., 119 S. Ct. 1563, 1570
(1999) (“[S]ubject-matter delineations must be policed by the courts on
their own initiative even at the highest level.”); 5A CHARLES ALAN WRIGHT
ET AL., FEDERAL PRACTICE AND PROCEDURE § 1393 (2d ed. 1990 & Supp. 2000).
Because we conclude that the district court’s denial of Lopez-Vasquez’s
motion was correct under either standard of review, we decline to choose
between them. We therefore assume, without deciding, that Lopez-Vasquez
adequately preserved this ground of error for appellate review.
10
defendants moved to dismiss the indictment against them on the basis
that their deportation hearing12 was rendered fundamentally unfair by the
immigration judge’s inadequately informing them of their right to
counsel at the hearing and accepting their unknowing waivers of their
right to apply for suspension of deportation. See id. at 2151. The
district court agreed and dismissed the indictments, concluding that
their lack of understanding of their rights to apply for suspension of
deportation or their rights to appeal their deportation orders rendered
their deportation proceeding fundamentally unfair. See id. at 2152.
The Court of Appeals affirmed, determining first that a defendant
prosecuted under section 1326 could collaterally attack a deportation
order and second that these defendants’ deportation hearings were
fundamentally unfair and, thus, the resulting deportation orders could
not form the basis of the section 1326 charges against them. See id.
The Government sought review by the Supreme Court, arguing that a
collateral attack of an underlying deportation order was neither
authorized in a section 1326 prosecution nor required under the
Constitution for the order to serve as an element of a section 1326
prosecution and conviction for illegal reentry. In doing so, the
Government did not challenge the lower courts’ findings “that the
deportation proceeding in th[e] case was fundamentally unfair and that
12
The two defendants, along with eleven other persons, were
deported in the same proceeding.
11
the deportation order was therefore unlawful.” Id. at 2153 n.8; see id.
at 2156 (“The United States has asked this Court to assume that
[defendants’] deportation hearing was fundamentally unfair in
considering whether collateral attack on the hearing may be permitted.
We consequently accept the legal conclusions of the court below that the
deportation hearing violated due process.”) (internal citation omitted).
With regard to the Government’s contention that the underlying
deportation order and proceeding were not subject to collateral attack
in a section 1326 prosecution, the Court agreed. See id. at 2154
(“Congress did not intend the validity of the deportation order to be
contestable in a § 1326 prosecution . . ..”). However, the Court also
concluded that, in the absence of effective judicial review, the
deportation proceeding and order, which suffered from fundamental
unfairness, “may not be used to support a criminal conviction.” Id. at
2157. Accordingly, the Court affirmed the dismissal of the indictments.
This Court, interpreting Mendoza-Lopez, has formulated three
distinct but related requirements that must be met by an alien wishing
to challenge the use of a deportation order, or in this case a removal
order, in a prosecution for illegal reentry under 8 U.S.C. § 1326: (1)
the alien must establish that the hearing was “fundamentally unfair”;
(2) the hearing effectively eliminated the right of the alien to
challenge the hearing by means of judicial review of the order; and (3)
the procedural deficiencies caused him actual prejudice. See United
States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999); United
12
States v. Asibor, 109 F.3d 1023, 1038 (5th Cir. 1997); United States v.
Estada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995); United States v.
Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir. 1992); United States v.
Palacios-Martinez, 845 F.2d 89, 91 (5th Cir. 1988).13 We first consider
whether the procedures employed in Lopez-Vasquez’s removal were
“fundamentally unfair.”
Our decisions considering a collateral attack on an order used an
element of an illegal reentry prosecution have involved deportation
orders as the predicate element of a section 1326 prosecution. See,
e.g., Benitez-Villafuerte, 186 F.3d at 654-55; Estada-Trochez, 66 F.3d
at 734-35; Encarnacion-Galvez, 964 F.2d at 404-05. Although the Supreme
13
The majority of our sister circuits agree with our
interpretation of Lopez-Mendoza. See, e.g., United States v. Lara-
Aceves, 183 F.3d 1007, 1010 (9th Cir. 1999); United States v.
Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998); United States v.
Parades-Batista, 140 F.3d 367, 378 (2d Cir.), cert. denied, 119 S. Ct.
143 (1998); United States v. Loaisiga, 104 F.3d 484, 487 (1st Cir.
1997); United States v. Perez-Ponce, 62 F.3d 1120, 1122 (8th Cir. 1995);
United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994);
Figeroa v. U.S. INS, 886 F.2d 76, 78 (4th Cir. 1989); United States v.
Holland, 876 F.2d 1533, 1537 (11th Cir. 1989).
With AEDPA’s enactment in 1996, Congress effectively codified this
reading of Mendoza-Lopez in 8 U.S.C. § 1326(d), which provides:
“In a criminal proceeding under this section, an alien
may not challenge the validity of the deportation order
described in subsection (a)(1) or subsection (b) of this
section 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 proceeding 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.”
13
Court has not enumerated the procedural protections guaranteed to an
alien in a deportation proceeding, see Mendoza-Lopez, 107 S. Ct. at 2155
n.17, it is well-settled that “aliens in deportation proceedings are to
be ‘accorded due process.’” Lara-Aceves, 183 F.3d at 1011 (quoting
Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995)); see Shaughnessy v.
United States ex rel. Mezei, 73 S. Ct. 625, 629 (1953) (“[A]liens who
have once passed through our gates, even illegally, may be expelled only
after proceedings conforming to traditional standards of fairness
encompassed in due process of law.”); Benitez-Villafuerte, 186 F.3d at
656 (“Aliens who have entered the United States unlawfully are assured
the protection of the Fifth Amendment due process clause.”) (citations
omitted). However, “an alien on the threshold of initial entry stands
on a different footing.” Mezei, 73 S. Ct. at 629. In attempting to
enter the United States on June 6, 1998, Lopez-Vasquez was never
admitted into the United States; instead, the INS inspectors prevented
him from doing so at the border and later founnd him inadmissible or
excludable. In determining whether Lopez-Vasquez’s removal procedures
violated due process, we must first address what process is due an alien
seeking admission into the United States who has not gained entry into
the United States and remains subject to being found inadmissible.
An alien “seek[ing] admission to this country may not do so under
any claim of right.” United States ex rel. Knauff v. Shaughnessy, 70
S. Ct. 309, 312 (1950); see Kleindeinst v. Mandel, 92 S. Ct. 2576, 2581
(1972) (“[A]n unadmitted and nonresident alien[] ha[s] no constitutional
14
right of entry to this country as a nonimmigrant or otherwise.”)
(citations omitted). “An attempt to enter this country is a request for
a privilege rather than an assertion of right.” Zadvydas v. Underdown,
185 F.3d 279, 294 (5th Cir. 1999), petition for cert. filed, No. 99-7791
(Jan. 11, 2000) (citing Landon, 103 S. Ct. at 328). In the exclusion or
inadmissibility context, only the process afforded by the Congress and
the Executive is required. See id. at 294-95; see also Landon, 103
S. Ct. at 329 (“This Court has long held that an alien seeking initial
admission to the United States requests a privilege and has no
constitutional rights regarding his application, for the power to admit
or exclude aliens is a sovereign prerogative.”); Kleindienst, 92 S. Ct.
at 2585 (“[P]lenary congressional power to make policies and rules for
exclusion of aliens has long been firmly established.”); Boutilier v.
INS, 87 S. Ct. 1563, 1567 (1967) (“It has long been held that the
Congress has plenary power to make rules for the admission of aliens and
to exclude those who possess those characteristics which Congress has
forbidden.”) (citation omitted); Knauff, 70 S. Ct. at 313 (“Whatever the
procedure authorized by Congress is, it is due process as far as an
alien denied entry is concerned.”) (citations omitted); Ekiu v. United
States, 12 S. Ct. 336, 339 (1892) (“As to such persons, the decisions of
executive or administrative officers, acting within powers expressly
conferred by congress, are due process of law.”) (citations omitted);
Hernandez v. Cremer, 913 F.2d 230, 236 (5th Cir. 1990) (“The Supreme
Court has long recognized that the political branches of government have
15
plenary authority to make rules for the admission and exclusion of
aliens as an inherent concomitant of national sovereignty.”) (citations
omitted); cf. Doe v. Plyler, 628 F.2d 448, 455 n.17 (5th Cir. 1980),
aff’d, 102 S. Ct. 2382 (1982) (“Aliens who seek entry to the United
States are not guaranteed Fourteenth Amendment due process rights.”).
On June 6, 1998, the INS inspectors found Lopez-Vasquez to be
inadmissible, or excludable under the pre-IIRIRA terminology.
Accordingly, he did not enter into the United States on that occasion.
See Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1440 (5th Cir.
1993) (“Although aliens seeking admission into the United States may
physically be allowed within its borders pending a determination of
admissibility, such aliens are legally considered to be detained at the
border and hence as never having effected entry into this country.”)
(citations omitted). Therefore, in his removal, Lopez-Vasquez was
entitled only to the process provided by Congress.14
On June 6, 1998, Lopez-Vasquez was placed in expedited removal
14
In Landon, the Court considered what process is due a permanent
resident alien seeking admission to the United States following a two-
day visit abroad. See Landon, 103 S. Ct. at 324. Although the Court
rejected Plasencia’s argument that she was entitled to a deportation
hearing, the Court also determined that, even though she was an alien
seeking admission into the United States, she was entitled to due
process, because of her having previously gained admission into the
United States, maintained residency in the country for five years, and
“develop[ed] the ties that go with permanent residence . . ..” Id. at
329. Moreover, the United States conceded that Plasencia “ha[d] a right
to due process.” Id. at 330 (citations omitted). In the present case,
the Government does not make such a concession and argues that Lopez-
Vasquez is due only the process provided under the immigration statutes
and regulations. In addition, Lopez-Vasquez does not contend, nor does
the record suggest, that his status is analogous to Plasencia’s.
16
proceedings for attempting to enter the United States by falsely
declaring himself to be a United States citizen. See 8 U.S.C. §
1225(b)(1)(A)(i)15. Federal regulations exist that set forth explicitly
the procedures for the expedited removal of inadmissible aliens. See
8 C.F.R. § 235.3. Lopez-Vasquez does not contend that these procedures
were not followed. Therefore, we hold that Lopez-Vasquez was not denied
procedural due process and that his removal was not fundamentally
unfair.
Because Lopez-Vasquez’s removal proceedings did not violate due
process, we need not address whether he suffered any prejudice16 or
15
8 U.S.C. § 1225(b)(1)(A)(i) provides as follows:
“If an immigration officer determines that an alien
(other than an alien described in subparagraph (F)) who is
arriving in the United States or is described in clause (iii)
is inadmissable under section 1182(a)(6)(C) or 1182(a)(7) of
this title, the officer shall order the alien removed from
the United States without further hearing or review unless
the alien indicates either an intention to apply for asylum
under section 1158 of this title or a fear of persecution.”
16
“A showing of prejudice means ‘there was a reasonable
likelihood that but for the errors complained of the defendant would not
have been deported’ [or removed].” Benitez-Villafuerte, 186 F.3d at
658-59 (quoting Estrada-Trochez, 66 F.3d at 735). “In short, ‘[i]f the
defendant was legally deportable and, despite the INS’s errors, the
proceeding could not have yielded a different result, the deportation
is valid for purposes of section 1326.’” Id. (quoting United States v.
Galicia-Gonzalez, 997 F.2d 602, 603 (9th Cir. 1993)) (internal quotation
omitted and alteration in original). Although we need not and do not
address this element, we note that, on appeal, Lopez-Vasquez does not
contest the district court’s finding that, even if his removal order
violated his due process rights, he suffered no prejudice and could not
have avoided removal on June 6, 1998.
17
whether he was denied judicial review of the hearing and order17. See
Encarnacion-Galvez, 964 F.2d at 406 (stating that, if the alien fails
to establish one element of his challenge, a court need not consider the
others) (citing Palacios-Martinez, 845 F.2d at 92; United States v.
Saucedo-Velasquez, 843 F.2d 832, 836 & n.6 (5th Cir. 1988)).18 Because
17
Lopez-Vasquez maintains that 8 U.S.C. § 1225(b)(1)(D) precludes
judicial review of the INS inspector’s finding that Lopez-Vasquez
claimed to be a United States citizen when he attempted to enter the
United States on June 6, 1998. Lopez-Vasquez raises an interesting
issue, particularly in light of the provision for judicial review of
removal orders issued under 8 U.S.C. § 1225(b)(1), see 8 U.S.C. §
1252(e), and the opportunity for a collateral attack of an underlying
deportation order in a section 1326 prosecution, see 8 U.S.C. § 1326(d).
Moreover, Lopez-Vasquez’s argument implicates Mendoza-Lopez’s
requirement that an alien be allowed to collateral attack a
fundamentally unfair removal proceeding and order irrespective of the
lack of a statutory mechanism to permit judicial review in a § 1326
prosecution. See Mendoza-Lopez, 107 S. Ct. at 2156 (“[A] collateral
challenge to the use of a deportation proceeding as an element of a
criminal offense must be permitted where the deportation proceeding
effectively eliminates the right of the alien to obtain judicial
review.”). Because Lopez-Vasquez fails to establish that the procedures
used to deport him violated due process, we need not and do not decide
what judicial review, if any, is available to consider challenges to an
expedited removal order that is used as an element of a § 1326
prosecution.
18
We reached an analogous conclusion, albeit in a different
context–a 28 U.S.C. § 2241 habeas corpus petition challenging the use
of a prior deportation order in a later deportation proceeding. Lara
v. Trominski, ___ F.3d ____, No. 98-41434 (5th Cir. July 10, 2000).
After having been deported from the United States in February 1993
(after convicted of conspiracy to make a machine gun), Lara reentered
the United States and was charged with unlawful reentry after
deportation, in violation of 8 U.S.C. § 1326. After serving a fifteen-
month term of imprisonment, the INS instituted deportation proceedings
against Lara. In these proceedings, Lara attempted to collaterally
attack his February 1993 deportation, asserting that the offense
leading to his deportation, conspiracy to make a machine gun, was not
a ground for deportation. The IJ ruled that it lacked jurisdiction to
consider Lara’s collateral challenge. The BIA found that it lacked
jurisdiction because Lara could not establish that his prior deportation
18
he cannot show that his removal proceeding was fundamentally unfair,
Lopez-Vasquez’s June 1998 removal order may permissibly serve as a basis
for his conviction under 8 U.S.C. § 1326. Therefore, the district court
did not err in denying Lopez-Vasquez’s motion to dismiss the indictment
or to suppress.
Conclusion
For the reasons stated, the judgment of the district court is
AFFIRMED.
was a gross miscarriage of justice. Although Lara did not file a
petition for review of the BIA’s decision, he did file a § 2241 petition
in federal district court, which granted Lara’s petition. We reversed
the grant of habeas relief and ordered Lara’s petition to be dismissed,
concluding that, because the BIA did not err in finding Lara had not
established that his prior deportation involved a gross miscarriage of
justice, the district court lacked jurisdiction to consider Lara’s §
2241 petition. Our resolution of Lopez-Vazquez’s contentions is
similar: because he cannot establish that his June 1998 removal was
fundamentally unfair and violated due process, he cannot sustain a
collateral attack on its use in his instant § 1326 prosecution and
conviction for illegal reentry.
19