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                           United States Court of Appeals
                                    Tenth Circuit
                                     OCT 16 2001
                                   PATRICK FISHER
                                   TENTH CIRCUIT
         UNITED STATES OF AMERICA,                   No. 00-3305
                                              (D.C. No. 00-CR-10073-01)
               Plaintiff - Appellee,                  (District of Kansas)


         Before EBEL, HOLLOWAY and LUCERO, Circuit Judges.
              In this direct criminal appeal, Alejandro Zalazar-Torres seeks reversal of his 

         conviction under 8 U.S.C. . 1326 for illegal re-entry into the United States after having 

         been deported.  Because he had a prior conviction for an aggravated felony, Mr. Zalazar 

         was subject to the penalty provisions of subsection 1326(b)(2).  On appeal, Mr. Zalazar 

         challenges the 1997 deportation proceeding which underlies his present conviction, 

         contending the proceeding was fundamentally unfair, depriving him of due process.  We

         (1)     This order and judgment is not binding precedent, except under the doctrines of 
         law of the case, res judicata, and collateral estoppel.  This court generally disfavors the 
         citation of orders and judgments; nevertheless, an order and judgment may be cited under 
         the terms and conditions of 10th Cir. R. 36.3.
         conclude that he has failed to establish that the 1997 INS proceeding was fundamentally 

         unfair, depriving him of due process.  We accordingly affirm his conviction.


              In 1997, Mr. Zalazar was convicted in Harvey County District Court, State of 

         Kansas, of the felony offense of possession of cocaine with intent to distribute. 

         Following that conviction, Mr. Zalazar was deported from the United States on December 

         17, 1997.  Defendant again came to the attention of the INS in November 1999, when he 

         was in the custody of the Wichita Police Department on charges of burglary and theft. 

         The instant prosecution commenced on April 19, 2000, when Defendant was charged by 

         criminal complaint in federal court with illegal reentry in violation of 8 U.S.C. . 1326, 

         and a grand jury indictment on the same charge followed on May 2, 2000.  After a motion 

         to dismiss the indictment had been denied by the district judge, Defendant entered into a 

         conditional plea agreement, reserving the right to appeal the denial of his motion to 

         dismiss.  Defendant was sentenced to imprisonment of 36 months, to be followed by a 

         term of supervised release of three years, and he was ordered to pay a special assessment 

         of $100.00.



              Mr. Zalazar argues that his Fifth Amendment right to due process of law was
         violated in his 1997 removal(1) proceeding and that his conviction therefore should be 

         reversed.  Mr. Zalazar presents his challenge to the 1997 proceeding in a framework 

         provided by statute:

              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 proceedings at [sic] 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.
         8 U.S.C. . 1326(d).  We have recognized that "[t]his section comports with the 

         constitutional standard for due process" set forth in United States v. Mendoza-Lopez, 481 

         U.S. 828, 837-39 (1987).  United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 

         1998), cert. denied, 527 U.S. 1012 (1999).  A removal proceeding is a civil proceeding, 

         not a criminal one, and the demands of due process are accordingly less strict.  See United 

         States v. Valdez, 917 F.2d 466, 469 (10th Cir. 1990). 

              Mr. Zalazar contends that the first requirement of exhaustion of administrative 

         remedies should be excused because the INS could not have decided his claims of 

         deprivation of his constitutional rights.  He cites, inter alia, Rabang v. INS, 35 F.3d 1449,

         (1)     The statutory scheme now uses the term "removal" instead of "deportation."  See 
         Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1140 n.2 (10th Cir. 1999), cert. denied sub 
         nom. Palaganas-Suarez v. Greene, 529 U.S. 1041 (2000).
         1451 (9th Cir. 1994) (Board of Immigration Appeals would not have had jurisdiction to 

         decide claim that plaintiffs were citizens under the Fourteenth Amendment; a civil action 

         for declaratory judgment therefore was not barred by failure to exhaust); and Dastmalchi 

         v. INS, 660 F.2d 880, 886 (3d Cir. 1981) (dictum that "[n]either an Immigration Judge nor 

         the Board of Immigration Appeals, in the course of a deportation proceeding, can enter an 

         order voiding an alien's deportation in response to a constitutional objection").  The 

         Government does not argue that Defendant's appeal should be barred for failure to pursue 

         administrative remedies.  Consequently, we will proceed in our consideration of 

         Defendant's argument, but we express no opinion on whether his failure to exhaust 

         administrative remedies is justified.(2)



               Thus we move to Defendant's attempts to show that he was improperly deprived of 

         the opportunity for judicial review and that the entry of the order was fundamentally 

         unfair, the second and third requirements under . 1326(d).  We review de novo the mixed 

         question of law and fact raised by a collateral attack on the constitutional validity of 

         removal proceedings underlying a prosecution for illegal reentry under 8 U.S.C. . 1326. 

         United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994).  We have held that in 

         order to show that the underlying order was fundamentally unfair, the alien must show 

         prejudice.  Id. at 998.

              Mr. Zalazar contends that decision by an unbiased arbiter is one of the 

         fundamental attributes of due process, the absence of which renders an adjudication 

         constitutionally infirm even in the absence of prejudice.  The underlying principle has 

         long been recognized: "Concededly, a `fair trial in a fair tribunal is a basic requirement of 

         due process.' In re Murchison, 349 U.S. 133, 136 (1955)." Withrow v. Larkin, 421 U.S. 

         35, 46 (1975).  Mr. Zalazar cites the Supreme Court's observation in Mendoza-Lopez that 

         some procedural errors may be "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."  481 U.S. at 839 n.17.  Although the Court 

         in Mendoza-Lopez declined to enumerate what errors might fall into this category, the 

         opinion cited Rose v. Clark, 478 U.S. 570, 577 (1986), and its reference to use of coerced 

         confessions and, significantly for our case, adjudication by a biased judge.  Id.

         (2)     It is clear that an agency does not have authority to determine the constitutionality 
         of a statute.  We have said, however, that "`[A] fundamental distinction must be 
         recognized between constitutional applicability of legislation to particular facts and 
         constitutionality of the legislation.  . . . .  We commit to administrative agencies the power 
         to determine constitutional applicability, but we do not commit to administrative agencies 
         the power to determine constitutionality of legislation.'"  McGrath v. Weinberger, 541 
         F.2d 249, 251 (10th Cir. 1976) (quoting 3 Kenneth Culp Davis, Administrative Law 
         Treatise  20.04, at 74 (1958)).
              Defendant here does not contend that the statute is unconstitutional, only that its 
         application in his case was unconstitutional.   Moreover, as discussed below, Defendant's 
         argument in this case is focused on procedural protections which are mandated by statute, 
         whether or not they are constitutionally required.  Thus, we do not endorse Defendant's 
         contention that exhaustion of administrative remedies would have been futile in this case. 
         Instead, in the absence of an argument by the Government on the point, we simply 
         proceed to decide the appeal on other grounds.
              We find it unnecessary to decide whether our rule requiring prejudice affords an 

         exception in circumstances establishing a violation of a right so fundamental as to be 

         comparable to the concept of structural error in criminal law.  This is so because we 

         conclude that Defendant has failed to establish the predicate for his argument.

              As the factual basis for his claim that his 1997 removal was flawed because the 

         decision was not made by a neutral arbiter, Mr. Zalazar relies on the contention that the 

         same official both brought the charges against him and decided that removal was 

         warranted.  Review of the record regarding the 1997 removal proceeding is necessary for 

         consideration of this issue.  We note first, however, that Mr. Zalazar failed to make this 

         argument in the district court so that our review is for plain error only.(3)

              An INS form called "Notice of Intent to Issue a Final Administrative Removal 

         Order" was issued by Ted K. Moss, shown as Assistant District Director, Investigations,
		  and was served on Defendant by Immigration Agent Mark S. Larkin on November 25, 

         1997.  This document bears the signature of Mr. Zalazar, acknowledging service of the 

         document at 1:16 p.m. on November 25, 1997.  Agent Larkin also signed the form as 

         interpreter, indicating that he gave the notice in Spanish.  In a section of that document 

         provided for the response of the person charged, Defendant admitted that he was 

         deportable, and that he was not eligible for relief from deportation, and that he waived his 

         right to contest the charge and his right to file a petition for review of the Final Removal 

         Order.  He also waived the usual fourteen day waiting period for execution of the Final 

         Removal Order.  The document shows that Mr. Zalazar signed this section of the notice at 

         1:18 p.m. on November 25, 1997, some two minutes after he acknowledged that it had 

         been served on him.

              Deportation Officer Paul L. Mitchell prepared a memorandum for the file dated 

         December 15, 1997, recommending that a Warrant of Removal/Deportation be issued 

         "For the Respondent" Zalazar.  In this memorandum, Officer Mitchell makes this 

         statement on which Mr. Zalazar focuses in this appeal:  "The Assistant District Director 

         of Investigations ordered the Respondent [i.e., Mr. Zalazar] removed from the United 

         States based on the charge(s) contained on the Notice to Issue a Final Administrative 

         Removal Order (Form I  851)."  The memo also states:  "The Assistant District Director 

         of Deportation ordered that a Final Administrative Removal Order (Form I851A) be 

         issued to the Respondent based on the charges contained on the Notice of Intent to Issue a
         (3)     We reject the contention that this issue was properly raised in the district court. 
         Mr. Zalazar argued below only that the INS as an institution was not a neutral arbiter 
         since the INS both brought the charges and determined their disposition.  That argument 
         fails under Withrow v. Larkin and its progeny, including Harline v. Drug Enforcement 
         Admin., 148 F.3d 1199, 1204 (10th Cir. 1998), cert. denied, 525 U.S. 1068 (1999); Hicks 
         v. City of Watonga, 942 F.2d 737, 746-47 (10th Cir. 1991); and Mangels v. Pena, 789 
         F.2d 836, 838 (10th Cir. 1986).  "It is not surprising, therefore, to find that `[t]he case 
         law, both federal and state, generally rejects the idea that the combination [of] judging 
         [and] investigating functions is a denial of due process . . . .'  2 K. Davis, Administrative 
         Law Treatise  1302, p. 175 (1958)."
              Defendant's mere unsubstantiated allegations of bias fail to meet the standards set 
         by the precedents.  The present, more specific argument is that the same individual 
         brought and decided the charge against defendant in violation of 8 U.S.C.  1228 (b) (4) 
         (F), and due process.  See Brief For The Appellant, at 13-15.  We conclude this issue was 
         not fairly presented in the district court.
         Final Administrative Removal Order (Form I  851)."  Our record does not reveal 

         whether the Form I  851A was issued.  On December 17, 1997, a "Warrant of 

         Removal/Deportation" was issued, but the signature of the official is illegible.  That 

         signature was entered "for District Director" the document states.  This document shows 

         that defendant departed on December 19, 1997.

              We conclude that the record is insufficient to support the contention  most 

         emphasized by Defendant  that he was deprived of the right to a neutral decision maker 

         in the 1997 INS proceedings.  Defendant focuses on the statement in the memorandum by 

         Officer Mitchell that "the Assistant Director of Investigations ordered the  Respondent 

         removed from the United States based on the charge(s) contained on the Notice to Issue a 

         Final Administrative Removal Order (Form I - 851)."  Because the charging officer was 

         the Assistant Director of Investigations, Moss, on the "Warrant for Arrest of Alien" dated 

         November 25, 1997,  Defendant contends that the statement in the Mitchell memo shows 

         that the same person brought the charges against him and decided those charges, in 

         violation of due process as well as in violation of the applicable statute, 8 U.S.C. . 

         1228(b)(4),(4) and regulation, 8 C.F.R. . 238.1 (1998).

         (4)     This statute provides:
              Proceedings before the Attorney General under this subsection shall 
         be in accordance with such regulations as the Attorney General shall 
         prescribe. The Attorney General shall provide that - 
         (A) the alien is given reasonable notice of the charges and of theopportunity described in subparagraph (C);
         (B) the alien shall have the privilege of being represented (at no expense to 
         the government) by such counsel, authorized to practice in such 
         proceedings, as the alien shall choose;
         (C) the alien has a reasonable opportunity to inspect the evidence and rebut 
         the charges;
         (D) a determination is made for the record that the individual upon whom 
         the notice for the proceeding under this section is served (either in person or 
         by mail) is, in fact, the alien named in such notice;
         (E) a record is maintained for judicial review; and
         (F) the final order of removal is not adjudicated by the same person who 
         issues the charges.
         8 U.S.C.  1228(b)(4).
              Mr. Zalazar's argument ignores an equally pertinent portion of the Mitchell 

         memorandum which indicates that "[t]he Assistant District Director of Deportation 

         ordered that a Final Administrative Removal Order (Form I - 851A) be issued to the 

         Respondent . . . ." (emphasis added).  That statement suggests that it was not Mr. Moss, 

         the "Assistant District Director, Investigations" (emphasis added) who made the final 

         decision.  As noted, our record does not include the Final Administrative Removal Order, 

         only the Notice of Intent to Issue a Final Administrative Removal Order.  Moreover, the 

         Warrant of Removal/Deportation was not signed by Moss (although we cannot determine 

         by whom it was signed).  Mr. Zalazar argues that the unidentified signatories of the 

         Warrant and of the Final Administrative Removal Order (which Order we presume exists
		  because it is required by regulation) were merely performing the ministerial duty of 

         executing documents under the command of Moss.  We cannot agree that the single 

         statement in the memo by Officer Mitchell, relied on by Defendant Zalazar, compels this 

         conclusion.  The scenario of the operative documents being signed by officials taking 

         their orders from the charging officer, Moss, is possible, but it is far from proven by this 

         one statement.  The burden of proof is on Mr. Zalazar in this collateral attack on the 1997 

         removal order.  United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000) 

         ("the burden of proof in a collateral attack on a deportation order is on a defendant based 

         on the presumption of regularity that attaches to a final deportation order"). Defendant 

         Zalazar has not succeeded in meeting that burden.

              We also find unpersuasive Defendant's contention that his waiver of rights, 

         including his right of direct review of the removal order, should be deemed invalid. 

         Defendant contends that the waiver itself violated due process.  In support of this 

         argument, Defendant points to his lack of education, his limited ability to speak English, 

         and the fact that the waiver was signed only two minutes after he acknowledged service 

         of the Notice of Intent accompanied by a statement, in Spanish, of his rights.

              We are not persuaded by Defendant's arguments that his waiver of rights should be 

         deemed invalid.  In the district court the judge inquired of the parties whether they desired 

         to present evidence.  The Defendant declined to do so, asserting that the matter was 

         essentially a legal question.  Memorandum and Order, 1 R. Doc. 27 at p.3.  Aside from
         the documents attached to its response, the Government also declined to present any 

         evidence.  The trial judge noted the Defendant Zalazar's apparent acknowledgment of 

         execution of his written waiver of his right of judicial review, which the statute focuses 

         on in 8 U.S.C. . 1326 (d) (2).  The judge said that Zalazar contends the waiver was 

         invalid because his rights were not explained to him by an immigration judge and the 

         waiver was not taken in the presence of a judge.

              The judge rejected the contentions of invalidity of waiver and stated that on the 

         evidence presented, and the absence of any evidence to suggest otherwise, the court 

         concluded that the defendant's waiver of his right to judicial review was knowing and 

         voluntary.  Id. at 4.  We agree.


              As for Defendant's other contentions, we are not willing to assume that he failed to 

         comprehend the significance of the waiver of rights because of his limited education, 

         especially when the statement of rights was provided in Spanish.  Defendant complains 

         that the INS failed to preserve an adequate record, in violation of 8 U.S.C. . 

         1228(b)(4)(E).  We hold that the record, although sparse, is adequate even without the 

         Final Administrative Removal Order which should have been included.

              In sum, we hold that Mr. Zalazar has failed to show that the 1997 deportation 

         proceeding was fundamentally unfair, failed to show that he was prejudiced by any 

         procedural infirmities, and failed to show that he was improperly deprived of his right of
         judicial review, particularly in light of the presumption of regularity which attaches to a 

         final deportation order.  United States v. Arevalo-Tavares, 210 F.3d at 1200.  The record 

         amply supports the trial judge's conclusions, and Mr. Zalazar's challenge to the 

         underlying removal order fails.



              Mr. Zalazar also challenges his sentence, contending that the enhancement of the 

         sentence on the basis that he had formerly been convicted of an "aggravated felony" as 

         that term is used in 8 U.S.C. . 1326 violated the principle enunciated by the Supreme 

         Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the existence of the prior 

         felony conviction was not alleged in the indictment.  Counsel acknowledges that this 

         argument is foreclosed in this circuit by United States v. Martinez-Villalva, 232 F.3d 

         1329, 1331-32 (10th Cir. 2000); he is asserting this claim of error to preserve it for 

         Supreme Court review.  In view of our precedent on the issue, we need not address the 

         argument further.


              The judgment of the district court is AFFIRMED.

                                                 Entered for the Court
                                                 William J. Holloway, Jr.
                                                 Circuit Judge

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