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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
99-50566 01/03/01 



Plaintiff-Appellee,                                   No. 99-50566

v.                                                    D.C. No.
Medina,                                               OPINION

Appeal from the United States District Court
for the Central District of California
Edward Rafeedie, District Judge, Presiding

Submitted December 7, 20001
Pasadena, California

Filed January 3, 2001

Before: Dorothy W. Nelson, Melvin Brunetti, and
Alex Kozinski, Circuit Judges.

Opinion by Judge Brunetti
1 The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).


George Siddell, San Diego, California, for the defendant-


Nancy B. Spiegel, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.

BRUNETTI, Circuit Judge:

Appellant Rogelio Medina appeals the denial of his motion
to dismiss the indictment charging him with being an illegal
alien found in the United States following deportation, in vio-
lation of 8 U.S.C. S 1326. Medina entered a conditional plea
of guilty to the indictment. We have jurisdiction pursuant to
28 U.S.C. S 1291, and we affirm.

Medina contends that the indictment should have been dis-
missed because the audiotape from his prior deportation pro-
ceeding was blank. He argues that the absence of a tape or
transcript requires dismissal for two reasons: first, the govern-
ment cannot prove the element of deportation, and second, his
due process rights have been violated because he is unable to
collaterally attack the prior proceeding. The district court
rejected these arguments, holding that the government is not
required to prove the element of deportation with a tape
recording and that the lack of a tape or transcript does not
deprive Medina of the opportunity to collaterally attack the
deportation. We agree with the district court's conclusions
and affirm.


[1] Although the government has the burden of proving the
element of a prior deportation,2"the lawfulness of the prior
2 In order to prove a violation of 8 U.S.C. S 1326, the government must
prove that the defendant (1) is an alien; (2) was deported from the United
States; and (3) reentered the United States without the consent of the
Immigration and Naturalization Service. See 9th Cir. Crim. Jury Instr. 9.5


deportation is not an element of the offense underS 1326."
United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.
1996). The government merely needs to prove that Medina
was in fact previously deported. Medina argues that, to satisfy
this burden, the government must provide a tape recording or
a transcript as proof of the prior deportation. To buttress this
argument, he relies on two previous opinions by this court,
United States v. Ortiz-Lopez, 24 F.3d 53 (9th Cir. 1994) and
United States v. Bejar-Matrecios, 618 F.2d 81 (9th Cir. 1980).
However, these cases do not address the sufficiency of evi-
dence necessary to prove prior deportation; instead, they go
to the separate and distinct element of alienage. In Bejar-
Matrecios, we held that the government actually had to prove
the element of alienage to obtain a conviction for a violation
of section 1326. See 618 F.2d at 83. And in Ortiz-Lopez, we
held that factual findings in a defendant's prior deportation
hearing, where the burden of proof was clear and convincing
evidence, could not be used to establish the alienage element
in a later criminal prosecution. See 24 F.3d at 55-56.

Clearly it would be improper for the government to rely on
factual findings from a deportation hearing to prove an ele-
ment of the crime of illegal reentry, as the burden of proof in
a criminal proceeding requires a greater showing by the gov-
ernment than in an administrative hearing. The use of a depor-
tation order to prove the element of alienage would allow the
government to skirt around the more stringent requirements of
a criminal proceeding by relying on that factual finding from
the INS proceeding. To put it more simply, the government
would demonstrate that Medina is an alien by showing that
the INS found that he was an alien.

[2] With regard to the element of prior deportation, the
government merely needs to prove that a deportation proceed-
ing actually occurred with the end result of Medina being
deported. The use of a deportation order or warrant in those
circumstances does not require the inappropriate and
improper reliance on a factual finding from a prior adminis-


trative proceeding. Instead, it merely shows that the proceed-
ing actually occurred. No factual inferences or findings need
be drawn from that warrant or order. There is no reason to
require the government to produce further evidence, such as
transcripts or tape recordings, in proving this element.

[3] The Fifth Circuit has held similarly in a case concerning
the absence of a transcript of the prior deportation proceeding.
See United States v. Palacios-Martinez, 845 F.2d 89, 91 n.4
(5th Cir.), cert. denied 488 U.S. 844 (1988). We agree with
that Court's reasoning and apply it to audio tape recordings.
"[T]he lack of transcript availability clearly does not invali-
date use of a prior deportation to establish the deportation as
an element necessary to prove the crime." Id.  The various
avenues of proof should be left open for the government to
prove the prior deportation, and we reject Medina's first argu-


[4] However, "[d]efendants charged under S 1326 can pre-
clude the government from relying on a prior deportation if
the deportation proceeding was so procedurally flawed that it
`effectively eliminate[d] the right of the alien to obtain judi-
cial review.' " Alvarado-Delgado, 98 F.3d at 493 (quoting
United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987)).
In order to collaterally attack his prior deportation, Medina
must show that the deportation hearing was fundamentally
unfair and that he was prejudiced by the error. Mendoza-
Lopez, 481 U.S. at 838 39; see also United States v. Proa-
Tovar, 975 F.2d 592, 594-95 (9th Cir. 1992). Medina does not
satisfy either requirement.

[5] First, he argues that the mere absence of a tape record-
ing or transcript of his deportation proceeding satisfies the
fundamental unfairness requirement. We do not agree, as
Medina was not deprived of any procedural right during the
proceeding nor was he deprived of the right of appeal because


of the absence of a tape or transcript. In Mendoza-Lopez, the
Supreme Court "declined . . . to enumerate which procedural
errors are so fundamental that they may functionally deprive
the alien of judicial review, requiring that the result of the
hearing in which they took place not be used to support a
criminal conviction." Id. at 839 n.17. However, the Court
analogized to abuses in the context of criminal proceedings
which had been recognized as "render[ing] a trial fundamen-
tally unfair," such as the use of a coerced confession, adjudi-
cation by a biased judge, and knowing use of perjured
testimony. Id. (internal quotation marks omitted). We find this
analogy helpful in guiding our analysis of whether Medina
has been functionally deprived of judicial review by the
absence of a tape recording or transcript, as both the severity
of the examples cited by the Court and their intentional nature
are notable in comparison with the mistake that occurred here.

[6] After Mendoza-Lopez, this court has only found errors
in deportation hearings to be fundamentally unfair, and there-
fore a deprivation of the right to judicial review, in instances
involving the waiver of direct review during a deportation
hearing or the denial of an opportunity for the alien to show
why he should not be deported. See United States v. Zarate-
Martinez, 133 F.3d 1194, 1197-98 (9th Cir. 1998); United
States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994);
Proa-Tovar, 975 F.2d at 594. The inquiry has focused on
whether the waiver was knowing and intelligent or whether
the judge deprived the alien of the ability to explain himself.
See Zarate-Martinez, 133 F.3d at 1197-98; see also Leon-
Leon, 35 F.3d at 1431.

[7] The absence of a tape recording or transcript surely
affects judicial review of a deportation hearing. Without a
contemporaneous recording, the hearing lacks a key element
of an adjudicatory proceeding: a means to preserve a record
for later appellate review. See Cortez-Acosta v. INS, No. 97-
71033, 2000 WL 1800100, at *5 (9th Cir. Dec. 8, 2000).
When "an adjudicator acts without the minimal trappings of


an adjudicatory proceeding, such as in the absence of a con-
temporaneous recording," we no longer owe him the defer-
ence normally given to an adjudicator. Id. at *6. On review,
we would treat the IJ's findings as "the observations of an
ordinary witness," rather than as findings of fact. Id. The
absence of a recording thus alters the nature of judicial
review; it does not, however, "effectively eliminate[ ] the
right of the alien to obtain judicial review." Mendoza-Lopez,
481 U.S. at 839. As the district court noted at the hearing on
his motion to dismiss, other means were available for Medina
to challenge the validity of his prior deportation hearing, such
as his own memory, witnesses, and the information within his
INS file. This reasoning is in accord with that of the Fifth Cir-
cuit in Palacios-Martinez, 845 F.2d at 91 n.4, which held that,
in the absence of a transcript of a deportation proceeding,
"[w]hatever papers and oral testimony exist may well serve
adequately to accomplish the collateral review." We therefore
hold that Medina was not deprived of his due process rights
because of the absence of a tape recording of his prior depor-
tation proceeding.

[8] Secondly, if Medina's due process rights had been vio-
lated, he must prove "prejudice as a result of the error."
Alvarado-Delgado, 98 F.3d at 493. To do so, he must show
"plausible grounds of relief which might have been available
to him but for the deprivation of rights." Id. at 494 (internal
quotation marks omitted). However, Medina does not offer
any evidence or argument that he was prejudiced."[W]e have
clearly held the alien has the burden of proving prejudice in
such circumstances." Leon-Leon, 35 F.3d at 1432. Medina
offers only the vague assertion that, if a tape recording was
available, he might be able to locate some defect in the pro-
ceeding. But this is "no more than speculation to support his
assertion of prejudice, and [he has] fail[ed] to set forth any
plausible argument or factual basis" that would support his
position. United States v. Corrales-Beltran, 192 F.3d 1311,


1318-1319 (9th Cir. 1999). The record here does not establish


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