REVISED DECEMBER 13, 2002

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-21264

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

JOEL LOPEZ-ORTIZ,

Defendant-Appellee.

Appeal from the United States District Court For the Southern District of Texas

November 18, 2002

Before JOLLY, DUHÉ and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:

The United States appeals the district court’s order

suppressing Joel Lopez-Ortiz’s prior removal and dismissing the

indictment against him for illegal reentry in violation of

(a) and (b)(2). We hold that the hearing at which Lopez-

Ortiz’s removal order was issued was not fundamentally unfair.

Because, under 8 U.S.C. 1326(d) and United States v. Mendoza-

Lopez,

,

(1987), fundamental unfairness

is necessary for collateral challenge of a removal order, we

REVERSE and remand for trial. I. BACKGROUND

Joel Lopez-Ortiz is a citizen of Mexico who obtained permanent

resident alien status in the United States in 1990. In 1995,

Lopez-Ortiz, who previously had been convicted twice of misdemeanor

driving while intoxicated (DWI), pleaded guilty to felony

possession of cocaine.

After Lopez-Ortiz’s cocaine possession plea, Congress changed

immigration law with the Antiterrorism and Effective Death Penalty

Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”). Among the changes was abolition of

discretionary waiver of removal, formerly available under §212(c)

of the Immigration and Nationality Act (“§ 212(c) relief”), for

aliens convicted of aggravated felonies.

In 1998, Lopez-Ortiz was arrested for felony third-offense

DWI. Before the felony DWI could be adjudicated, the INS

discovered Lopez-Ortiz in the Tarrant County Jail. Lopez-Ortiz was

served with a Notice to Appear, the INS having determined based on

the 1995 cocaine conviction that he was removable as an aggravated

felon.

At the removal hearing, the Immigration Judge advised Lopez-

Ortiz to obtain counsel. Lopez-Ortiz waived counsel, admitted the

factual allegations in the Notice to Appear, and conceded that he

was removable as an aggravated felon. Neither the Immigration

Judge nor anyone at the INS told Lopez-Ortiz that he was eligible

to apply for § 212 (c) relief. The Immigration Judge told Lopez-

2 Ortiz that he had the right to appeal, but that he would have to

remain in detention pending appeal and pay for an attorney. When

Lopez-Ortiz asked if an appeal would enable him to get his green

card back, the Immigration Judge answered that such an outcome was

unlikely. Lopez-Ortiz waived administrative appeal and was

deported.

Lopez-Ortiz reentered the United States and was convicted of

the felony DWI in 2000. He was discovered by the INS while serving

his sentence, and this prosecution for illegal reentry under

(a) and (b)(2) followed.1 Lopez-Ortiz moved for

suppression of his prior removal, an essential element of the

1 In relevant part, 8 U.S.C. 1326 provides: (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 2 years, or both.

(b) Criminal penalties for reentry of certain removed aliens. Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection--

(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 illegal reentry offense, arguing that his removal hearing failed to

afford due process. His due process challenge was based on the

Immigration Judge’s failure to inform him of the possibility of §

212(c) relief as well as the judge’s advice that Lopez-Ortiz had

the right to appeal but would likely be unsuccessful.2

The district court granted Lopez-Ortiz’s motion to suppress

the removal order and dismissed the indictment. The United States

filed this expedited appeal.

II. STANDARD OF REVIEW

When considering the district court’s ruling on a motion to

suppress, we review conclusions of law de novo and findings of fact

for clear error. United States v. Hernandez,

(5th Cir. 2002). We view the evidence in a light most favorable to

the party who prevailed in the district court.

.

III. COLLATERAL CHALLENGE OF THE PRIOR REMOVAL

Lopez-Ortiz’s motion to suppress is a collateral challenge

governed by 8 U.S.C. 1326(d) and the Supreme Court’s decision in

United States v. Mendoza-Lopez,

,

(1987). See, e.g., United States v. Benitez-Villafuerte,

, (5th Cir. 1999). In Mendoza-Lopez, the district court

2 Lopez-Ortiz argued also that the removal hearing was fundamentally unfair because his 1995 conviction was not an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(B). Lopez- Ortiz concedes that this argument is foreclosed by our holding in United States v. Hernandez-Avalos,

(5th Cir.), cert. denied,

(2001), but raises the issue to preserve it for further appeals in his case.

4 dismissed indictments against defendants charged with illegal

reentry under

. The Immigration Judge who presided

over the defendants’ deportation hearing had not explained

adequately their eligibility to apply for suspension from

deportation and had accepted their unconsidered waivers of appeal.3

The district court held, and the Eighth Circuit affirmed, that the

deportation hearing violated due process. The United States

appealed, arguing that collateral review of a final deportation

order was neither authorized by

nor required by the

Constitution. The United States did not seek, and the Supreme

Court did not provide, review of the conclusion that the

deportation hearing was fundamentally unfair.4 The Court held that

due process requires collateral review of deportation orders used

in § 1326 prosecutions, explaining 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.” Id. at

2155.

3 What was called “deportation” in pre-IIRIRA terminology is now referred to as “removal.” 4 The Court wrote: “The United States has asked this Court to assume that respondents’ 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.” U.S. v. Mendoza-Lopez,

(1987).

5 Following Mendoza-Lopez, this court developed a three-part test

for challenge of a prior removal to be used in a § 1326

prosecution. Our interpretation of Mendoza-Lopez required an alien

challenging a prior removal to establish that (1) the removal

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 the alien actual prejudice. See United States

v. Lopez-Vasquez,

(5th Cir. 2000). This

interpretation of Mendoza-Lopez effectively was codified, See

Lopez-Vasquez,

, in

(d), which

provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in section (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.

In asserting that the district court was correct to suppress

his prior removal, Lopez-Ortiz emphasizes the similarities between

his removal hearing and the one at issue in Mendoza-Lopez.

Mendoza-Lopez is instructive on the issue whether Lopez-Ortiz was

deprived of judicial review. Mendoza-Lopez,

.

However, deprivation of judicial review is only one element of the

6 collateral attack. See Lopez-Vasquez,

; United States

v. Palacios-Martinez,

(5th Cir. 1988)(explaining

that Mendoza-Lopez “established the second requirement which is

that a collateral attack on a deportation hearing should be allowed

if, in addition to being fundamentally unfair, the hearing

effectively eliminated the right of the alien to challenge the

hearing by means of review of the deportation order”)(emphasis

added); 8 U.S.C. 1336(d). We still must determine whether Lopez-

Ortiz’s hearing was fundamentally unfair.5

Lopez-Ortiz asserts that the Immigration Judge’s failure to

inform him of the possibility of § 212(c) relief rendered his

removal hearing fundamentally unfair. At the time of Lopez-Ortiz’s

hearing, the Board of Immigration Appeals had decided that the

abolition of §212(c)relief was applicable to aliens, such as Lopez-

Ortiz, who had been convicted of aggravated felonies and whose

removal proceedings commenced after the effective date of IIRIRA.

5 Lopez-Ortiz argues that this court interpreted Mendoza-Lopez as holding that failure to advise of discretionary relief and acceptance of unconsidered waiver of appeal violate due process, citing United States v. Saucedo-Velasquez,

(5th Cir. 1988). In its discussion of Mendoza-Lopez, this court stated: “The Court then went on to hold that due process requires the right to a collateral challenge to the deportation proceeding as an element of a criminal offense at least when there was a failure to explain either the right to judicial review of the deportation proceeding or a relevant right to apply for suspension of deportation.” Id at 832. Saucedo-Velasquez notes only that collateral challenge must be available to an alien charged with illegal reentry who was effectively deprived of judicial review of his removal proceeding. Id at 834. However, demonstration of effective deprivation of judicial review is only one step toward success in the collateral attack.

7 In Re Soriano, 21 I.& N. Dec 516, 519 (1996).6 After In Re

Soriano, Immigration Judges conducted removal proceedings with the

understanding that aliens with aggravated felony convictions were

ineligible for § 212(c) relief. Thus, it is no surprise that

Lopez-Ortiz was not told about § 212(c) relief during his removal

proceeding.

In 2001, three years after Lopez-Ortiz’s removal was final,

the Supreme Court held that § 212(c) relief “remains available for

aliens ... whose convictions were obtained through plea agreements

and who, notwithstanding those convictions, would have been

eligible for section 212(c) relief at the time of their plea under

the law then in effect.” INS v. St. Cyr,

,

(2001). Thus, contrary to the understanding of the INS

and the Immigration Judge who conducted his hearing, Lopez-Ortiz

was eligible for § 212(c) relief.

The government argues that St. Cyr should not affect our

evaluation of Lopez-Ortiz’s removal hearing because the Supreme

Court has held that new rules of civil law do not apply

retroactively to cases not on direct review. Harper v. Virginia

Department of Taxation,

.,

. The

government’s error is in its view of St. Cyr as announcing a new

rule. St. Cyr was a case of statutory interpretation.

This circuit later affirmed the position taken by the BIA. See Requena-Rodriguez v. Pasquarell,

(5th Cir. 1999); Alfarache v. Cravener,

(5th Cir. 2000).

8 at 2278. As such, its holding did not change the law. See Rivers

v. Roadway Express, Inc.,

,

(1994).

Rather, St. Cyr “finally decided what [IIRIRA] had always meant and

explained why the [BIA and the] Courts of Appeals had

misinterpreted the will of the enacting Congress.”

n.12 (emphasis in original). Therefore, St. Cyr established Lopez-

Ortiz’s eligibility for § 212(c) relief at the time of his removal,

and the Immigration Judge’s contrary understanding, although in

compliance with BIA precedent, was an erroneous application of the

law. This error informs our evaluation of the fundamental fairness

of the removal hearing.

Fundamental fairness is a question of procedure. Lopez-

Vasquez,

. Removal hearings are civil proceedings,

not criminal; therefore, procedural protections accorded an alien

in a removal proceeding are less stringent than those available to

a criminal defendant. Benitz-Villafuerte,

.

(citing Ramirez-Osorio,

). The Supreme Court has

stated that due process requires that an alien who faces

deportation be provided (1) notice of the charges against him, (2)

a hearing before an executive or administrative tribunal, and (3)

a fair opportunity to be heard. Kwong Hai Chew v. Colding,

,

, 97 L. Ed 576 (1953). The record

establishes, and Lopez-Ortiz does not contest, that he was provided

with these protections. Because he was provided with the

9 protections mandated by the Supreme Court, Lopez-Ortiz’s challenge

of the fundamental fairness of his removal hearing rests on the

Immigration Judge’s error in not explaining his eligibility for §

212(c) relief.

Lopez-Ortiz presupposes that eligibility for discretionary

relief under § 212(c) is an interest warranting constitutional due

process protection. We disagree. St. Cyr’s holding was not

grounded in § 212(c) relief having the status of a constitutionally

protected interest; rather, it was based on the Court’s

interpretation of IIRIRA. In fact, § 212(c) relief, because it is

available within the broad discretion of the Attorney General, is

not a right protected by due process.

This circuit has noted that § 212(c) relief “‘was couched in

conditional and permissive terms. As a piece of legislative grace,

it conveyed no rights, it conferred no status’”, and its denial

does not implicate the Due Process clause. Alfarache v. Cravener,

(2000)(quoting Cadby v. Savoretti,

, 443

(5th Cir. 1956).7 See also Gonzalez-Torres v. INS,

(5th Cir. 1999)(alien has no constitutional right to

7 Alfarache was decided before St. Cyr and incorrectly treated the petitioner as ineligible for § 212(c) relief. The petitioner in Alfarache argued that the INS’s delay of deportation proceedings resulted in their commencement after IIRIRA ostensibly eliminated his eligibility for § 212(c) relief. Our holding that the petitioner had no constitutional entitlement to eligibility for discretionary relief is predicated on the nature of discretionary relief, not on our understanding that abolishment of § 212(c) was retroactive.

10 discretionary relief over which the Attorney General exercises

“unfettered discretion”.) (citing Tefel v. Reno,

(11th Cir. 1999), cert. denied,

,

,

(2000)). Other circuits considering the

effect of St. Cyr likewise have held that discretionary relief is

not a vested right meriting due process protection. See

Oguejiofor v. Attorney General,

(11th Cir.

2002)(“[A]n alien has no constitutionally protected right to

discretionary relief or to be eligible for discretionary relief.”);

Smith v. Ashcroft,

(4th Cir. 2002)(§ 1326 defendant

had no liberty or property interest in § 212(c) relief).

Because eligibility for § 212(c) relief is not a liberty or

property interest warranting due process protection, we hold that

the Immigration Judge’s error in failing to explain Lopez-Ortiz’s

eligibility does not rise to the level of fundamental unfairness.

Having determined that Lopez-Ortiz’s removal hearing did not

violate his right to due process, we need not reach the remaining

requirements of our precedents and 8 U.S.C. 1326(d), namely

exhaustion of administrative remedies and actual prejudice. We

reverse the order of the district court and remand the case for

trial.

REVERSED and REMANDED.

11