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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  

Case Name:
Case Number: Date Filed: 
98-30342 11/14/00 


                                                     No. 98-30342
                                                     D.C. No.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding

Argued and Submitted
October 3, 2000--Seattle, Washington

Filed November 14, 2000

Before: Alfred T. Goodwin, Arthur L. Alarcon, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge Alarcon



Shelley K. Chaffin, Law Office of Lance C. Wells, P.C.,
Anchorage, Alaska, for the defendant-appellant.

William C. Brown, United States Attorney, United States
Department of Justice, Washington, District of Columbia, for
the plaintiff-appellee.



ALARCON, Circuit Judge:

Juan Carlos Herrera-Blanco ("Herrera-Blanco") appeals
from the judgment of conviction of the crime of unlawful
reentry into the United States by a previously deported alien
without the express consent of the Attorney General of the
United States in violation of 8 U.S.C. S 1326(a) and
S 1326(b)(2). He seeks reversal of his conviction on two dis-
crete grounds:

One: The Anti-Terrorism and Effective Death Penalty Act
("AEDPA") is unconstitutional because it denies the right to
a direct appeal from a deportation order to an alien if he has
previously suffered a conviction for an aggravated felony.

Two: The immigration judge deprived him of his right to
due process by inducing him to give up his right to file an
appeal from the deportation order by erroneously informing
him that he was ineligible for relief from deportation. Herrera-
Blanco asserts that the provisions of AEDPA denying relief
from deportation do not apply to an alien whose conviction of
an aggravated felony occurred prior to the effective date of
1 Prior to the enactment of AEDPA, an alien previously convicted of an
aggravated felony was eligible for discretionary relief pursuant to 8 U.S.C.


We affirm because we conclude that there is no merit to
these contentions.


Herrera-Blanco, a citizen of Mexico, entered the United
States on October 27, 1988. He was granted lawful permanent
resident status on December 1, 1990. On August 31, 1994, he
was charged in an Alaska state court with one count of first
degree burglary and one count of second degree sexual
assault. He was convicted following a trial by jury on both
counts. Judgment was entered on January 4, 1996.

Herrera-Blanco filed an appeal from the Alaska state
court's judgment. He was released on bail pending the deter-
mination of his appeal. The judgment was affirmed on August
4, 1997. Herrera-Blanco began serving his state prison sen-
tence on September 24, 1997.

The Immigration and Naturalization Service ("INS") served
Herrera-Blanco with a notice of hearing and an order to show
cause dated April 8, 1998 while he was still incarcerated. He
was released from prison on May 10, 1998. Shortly thereafter
he appeared without counsel before an immigration judge
("IJ"). In response to the IJ's questions, Herrera-Blanco stated
that he should be removed from the United States because of
his conviction of two aggravated felonies.
S 1182(c) (1994). In AEDPA, Congress amendedS 1182(c) to provide that
an alien is ineligible to seek a waiver of deportation if he or she is "deport-
able by reason of having committed any criminal offense covered in 8
U.S.C. S 1251(a)(2)(A)(iii), (B), (C), or (D). Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132,S 440(d), 110 Stat. 1214,
1277 (1996) (codified as amended in scattered sections of 8, 15, 18, 22,
28, 40, 42, 50 U.S.C.). The content of 8 U.S.C.S 1251 was later trans-
ferred to 8 U.S.C. S 1227. See 8 U.S.C. S 1251 (1999). Under 8 U.S.C.
S 1227 (a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated fel-
ony at any time after admission is deportable."


The IJ found that Herrera-Blanco was deportable from the
United States. The IJ then informed Herrera-Blanco that "due
to the nature of your conviction you are not eligible for any
relief." Herrera-Blanco waived his right to appeal from the
deportation order. He was deported on May 13, 1998.

Herrera-Blanco was arrested in Alaska on June 3, 1998. On
June 16, 1998, he was indicted for unlawful reentry of an
alien previously deported following conviction of a felony in
violation of 8 U.S.C. SS 1326(a), (b)(2). On July 29, 1998,
Herrera-Blanco moved to dismiss the indictment. In his
motion, he collaterally attacked the validity of the deportation
order. He argued that AEDPA is unconstitutional because it
precludes judicial review of deportation orders. He also
asserted that AEDPA cannot be applied retroactively to deny
discretionary relief to an alien who was eligible for such relief
when the prior felony was committed before AEDPA's effec-
tive date. He further maintained that the IJ failed to inform
him that he was eligible for discretionary relief from deporta-
tion. The district court denied the motion to dismiss the

Herrera-Blanco pled guilty as charged in the indictment but
reserved the right to appeal from the denial of his motion to
dismiss the indictment. On November 13, 1998, the district
court entered its judgment sentencing Herrera-Blanco to serve
41 months in prison and two years of supervised release for
violating SS 1326(a), (b)(2). We have jurisdiction over this
timely appeal pursuant to 28 U.S.C. S 1291.


Herrera-Blanco initially challenges the order of deportation
"[b]ecause meaningful judicial review [of a deportation order]
was absolutely foreclosed by the Anti-Terrorism and Effec-
tive Death Penalty Act of 1996 in violation of the Fifth
Amendment Due Process Clause." Appellant's Opening Brief
at 17. We review de novo a district court's order denying a


collateral attack on a deportation proceeding. See United
States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992) (en

[1] In 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act ("IIRIRA"). It pro-
vides that federal courts lack subject matter jurisdiction to
review a final order of removal predicated upon the convic-
tion of an aggravated felony. See 8 U.S.C.S 1252(a)(2)(C).
Section 1252(a)(2)(C) reads in pertinent part as follows: "Not-
withstanding any other provision of law, no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a
criminal offense, covered in . . . [S]1227(a)(2)(A)(iii) . . . ."
Section 1227 (a)(2)(A)(iii) provides that "[a]ny alien who is
convicted of an aggravated felony at any time after admission
is deportable."

[2] The Supreme Court instructed in United States v.
Mendoza-Lopez, 481 U.S. 828 (1987), that an alien must be
afforded the opportunity to attack collaterally a deportation
order that constituted an element of a criminal offense. See id.
at 837-39. The Court explained this requirement in the follow-
ing words:

      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 sanc-
      tion, there must be some meaningful review of the
      administrative proceeding. This principle means at
      the very least that where the defects in an adminis-
      trative proceeding foreclose judicial review of that
      proceeding, an alternative means of obtaining judi-
      cial review must be made available before the
      administrative order may be used to establish con-
      clusively an element of a criminal offense. The result
      of those proceedings may subsequently be used to
      convert the misdemeanor of unlawful entry into the


      felony of unlawful entry after a deportation. Depriv-
      ing an alien of the right to have the disposition in a
      deportation hearing reviewed in a judicial forum
      requires, at a minimum, that review be made avail-
      able in any subsequent proceeding in which the
      result of the deportation proceeding is used to estab-
      lish an element of a criminal offense.

Id. (citations and footnotes omitted).

[3] Where direct judicial review of a deportation order is
unavailable, "the validity of the deportation order may be col-
laterally attacked in the criminal proceeding." United States v.
Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). An alien may
collaterally attack the validity of a deportation order if he or
she demonstrates that "(1) the alien exhausted any administra-
tive 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 oppor-
tunity for judicial review; and (3) the entry of the order was
fundamentally unfair." 8 U.S.C. S 1326(d)(1)-(3).

[4] Herrera-Blanco collaterally attacked the validity of the
deportation order in the district court in his motion to dismiss
the indictment. Thus, he has availed himself of an alternative
means of judicial review. See United States v. Mendoza-
Lopez, 481 U.S. at 838. The question whether the IJ deprived
Herrera-Blanco of his right to judicial review by advising him
that he was ineligible for discretionary relief from the depor-
tation order is squarely before us in this appeal. Accordingly,
we reject Herrera-Blanco's contention that AEDPA and
IIRIRA violated his constitutional right to meaningful appel-
late review of his due process claim.


[5] Herrera-Blanco maintains that the waiver of his right to
appeal the deportation order was not "considered and intelli-


gent" because the IJ erroneously informed him that he was
ineligible for any form of relief from deportation. He argues
that the AEDPA S 440(d)'s amendment to former 8 U.S.C.
S 1182(c) cannot be applied retroactively to an alien who was
convicted of an aggravated felony prior to the April 24, 1996
effective date of ADEPA.2 He maintains that he "should not
be punished because the INS failed to initiate deportation pro-
ceedings at the time he entered his plea/and or at the time of
sentencing." Appellant's Opening Brief at 24. We rejected a
similar argument in Magana-Pizano v. INS, 200 F.3d 603 (9th
Cir. 1999). We held in Magana-Pizano that:

      AEDPA S 440(d)'s bar of discretionary relief previ-
      ously afforded by INA S 212(c) should not apply to
      aliens whose deportation proceedings were pending
      when AEDPA became law and to those who can
      demonstrate that they entered guilty or nolo con-
      tendere pleas in reliance upon the relief afforded by
      INA S 212(c). However, we also hold that, absent a
      showing of specific reliance, AEDPA applies to
      those aliens who were convicted of crimes prior to
      the enactment of AEDPA, but who were not placed
      in deportation or exclusion proceedings until after
      AEDPA's effective date.
2 Prior to its repeal, S 1182(c) provided:

       Aliens lawfully admitted for permanent residence who tempo-
      rarily proceeded abroad voluntarily and not under an order of
      deportation, and who are returning to a lawful unrelinquished
      domicile of seven consecutive years, may be admitted in the dis-
      cretion of the Attorney General without regard to the provisions
      of subsection (a) of this section (other than paragraphs (3) and
      ((9)(C)). Nothing contained in this subsection shall limit the
      authority of the Attorney General to exercise the discretion
      vested in him under section 1181(b) of this title. The first sen-
      tence of this subsection shall not apply to an alien who has been
      convicted of one or more aggravated felonies and has served for
      such felony or felonies a term of imprisonment of at least 5 years.


Id. at 614.

[6] Herrera-Blanco was not placed in deportation proceed-
ings until after April 24, 1996. The record shows that he pled
not guilty and exercised his right to trial by jury. Thus, he
does not come within the exception to the retroactive applica-
tion of S 440(d) for persons who pled guilty or nolo con-
tendere in reliance upon INA S 212(c). Under the law of this
circuit, Herrera-Blanco was not entitled to apply for a waiver
of deportation because his deportation proceedings did not
occur until after April 24, 1996, the effective date of AEDPA.
The IJ did not err in informing Herrera-Blanco that he was not
eligible for discretionary relief from deportation. Since he
admitted to the IJ that he was subject to deportation because
he had been convicted of two aggravated offenses, he was not
improperly deprived of the opportunity for judicial review by
the IJ's statement that he was not eligible for discretionary
relief. He has failed to demonstrate that the entry of the depor-
tation order was fundamentally unfair. See 8 U.S.C.
S 1326(d)(1)-(3).


The district court did not err in denying the motion to sup-
press the indictment. The judgment of conviction is
AFFIRMED. This matter is REMANDED to the district court
with directions to correct the judgment of conviction to
exclude the reference to 8 U.S.C. S 1326(b)(2). See United
States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000).