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Full Opinion
FILED
United States Court of Appeals
Tenth Circuit
June 4, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3296
JUAN F. ADAME-OROZCO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:09-CR-10046-WEB-1)
John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for
Defendant-Appellant Juan Adame-Orozco.
Brett I. Anderson, Assistant United States Attorney (Lanny D. Welch, United
States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee
United States of America.
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Juan Adame-Orozco appeals his conviction for illegally reentering the
United States after a prior deportation. The conviction should be overturned, he
submits, because the order that resulted in his deportation from the country was
itself invalid. And this is so, in his view, because the order was premised on state
court felony drug convictions that he didnāt have a sufficient opportunity to attack
in collateral proceedings before he was removed from the country. In pursuing
this line of argument, Mr. Adame-Orozco seeks to rely on 8 U.S.C. Ā§ 1326(d),
which provides a defendant in an illegal reentry case with a means of defense if
he can show, among other things, that the underlying ādeportation proceedings at
which [his deportation] order was issued improperly deprived [him] of the
opportunity of judicial review.ā Id. Ā§ 1326(d)(2).
The problem is that Mr. Adame-Orozco was never improperly deprived of
the opportunity for judicial review in his federal deportation proceedings. He was
able to, and did, appeal his deportation order to the Board of Immigration Appeals
(āBIAā). And he was free, in turn, to appeal the BIAās ruling to a federal court.
Section 1326(d) requires no more. Contrary to Mr. Adame-Orozcoās argument,
the statute doesnāt guarantee judicial review in state court of his underlying state
felony convictions. Neither does it require, as he suggests, a stay of federal
deportation proceedings so long as some appellate or collateral review of his state
felony convictions happens to be ongoing. The plain language and history of
Ā§ 1326(d) preclude such a view and require us to affirm the judgment of the
district court.
-2-
I
In approaching Mr. Adame-Orozcoās appeal, we begin with the facts
underlying his original deportation (Section I.A), and those more immediately
relevant to his current illegal reentry prosecution (Section I.B), before proceeding
to analyze the arguments he presents for our review (Section II).
A
Sometime in the 1980s, Mr. Adame-Orozco entered the United States
without an inspection by or approval from federal immigration officials. By
1990, however, Mr. Adame-Orozco had won lawful permanent resident status, and
he eventually settled in Kansas. While in this country, he amassed convictions
for ānumerousā crimes. See Criminal Complaint, R. Vol. I at 9. Most pertinent
for our purposes, in April 2005 Mr. Adame-Orozco added to this record by
pleading guilty in Kansas state court to two counts of selling cocaine in violation
of state law.
When federal officials received word of these latest convictions, they
initiated deportation proceedings. 1 In their view, Mr. Adame-Orozcoās
1
We recognize that the Illegal Immigration Reform and Responsibility Act
of 1996 replaced ādeportationā with āremovalā as the preferred term of art to
refer to the denial or revocation of admission to the United States. See Zhong v.
U.S. Depāt of Justice, 480 F.3d 104, 108 n.3 (2d Cir. 2007). We use the term
ādeportationā in this opinion, however, to track the language of 8 U.S.C. Ā§ 1326,
the statute thatās the primary focus of our attention here. Courts throughout the
nation often use the terms āremovalā and ādeportationā interchangeably, see, e.g.,
Zhong, 480 F.3d at 108 n.3, and we donāt mean to suggest any substantive
(continued...)
-3-
convictions constituted āaggravated feloniesā sufficient to warrant deportation
under 8 U.S.C. Ā§Ā§ 1227(a)(2)(A)(iii) & 1101(a)(43)(B). 2 On January 18, 2006,
Mr. Adame-Orozco appeared before an immigration judge (āIJā). Because the IJ
agreed that the convictions involved āaggravated felonies,ā he explained that he
didnāt have any discretion to allow Mr. Adame-Orozco to remain in the United
States. The IJ informed Mr. Adame-Orozco that perhaps his best hope for staying
in the country was if he could convince a state court to undo his guilty plea to the
cocaine charges. Though the IJ seemingly had no obligation to do so, he granted
a one-month continuance to afford Mr. Adame-Orozco a chance to pursue relief in
state court.
By the time the deportation proceedings reconvened on February 22,
however, little had changed. Mr. Adame-Orozco hadnāt taken any steps to reopen
his state court conviction until that same day, when he finally filed a motion
before the state trial court to withdraw his guilty plea. In those papers, Mr.
Adame-Orozco argued that his guilty plea was involuntary and invalid because,
1
(...continued)
difference between them for purposes of Ā§ 1326. See United States v. Pena-
Renovato, 168 F.3d 163, 165 (5th Cir. 1999) (ā[R]emoval and deportation are the
same proceeding for purposes of Ā§ 1326 . . . .ā).
2
Section 1227(a)(2)(A)(iii) provides that ā[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable.ā Section
1101(a)(43)(b) defines the term āaggravated felonyā to include āillicit trafficking
in a controlled substance (as defined in section 802 of title 21), including a drug
trafficking crime (as defined in section 924(c) of title 18).ā Mr. Adame-Orozco
concedes that he qualifies as an āalienā for the purposes of Ā§ 1227.
-4-
among other things, his lawyer had rendered constitutionally ineffective
assistance by failing to advise him of the immigration consequences associated
with being convicted of the charges against him. Unsurprisingly, the state trial
court hadnāt yet ruled on Mr. Adame-Orozcoās motion.
Before the IJ on February 22, Mr. Adame-Orozcoās immigration lawyer
didnāt dispute that his drug convictions constituted āaggravated feloniesā for
purpose of the immigration laws. Instead, counsel argued against deportation by
parroting Mr. Adame-Orozcoās state court request for collateral relief, submitting
that the state court guilty plea was invalid by dint of the ineffective assistance
provided by trial counsel in the criminal proceedings.
To this, the IJ replied that āpost-conviction relief is collateral to a removal
hearing.ā R. Vol. I at 72. Unless and until Mr. Adame-Orozcoās state court
convictions were undone by authorized state courts, he explained, deportation
proceedings could and would continue. At the hearingās end, the IJ found that
Mr. Adame-Orozco was, in fact, subject to deportation by virtue of his still-
operative state convictions. The IJ then advised Mr. Adame-Orozco that he could
appeal this deportation order to the BIA, and that any deportation wouldnāt
happen until the BIA ruled. In the meantime, the IJ offered, Mr. Adame-Orozco
might continue to pursue his collateral effort in state court to undo his
convictions.
-5-
The BIA and the Kansas state trial court issued their rulings on the same
day approximately three months later. The BIA denied Mr. Adame-Orozcoās
immigration appeal, finding no defect in the IJās deportation order. And the state
trial court denied Mr. Adame-Orozcoās motion to withdraw his state court guilty
plea. The state court held that Mr. Adame-Orozco knowingly and voluntarily
entered his guilty plea, and that Kansas law didnāt require trial counsel to inform
a criminal defendant of the potential immigration consequences of a guilty plea. 3
Mr. Adame-Orozco was deported on June 3, 2006 and didnāt choose to
pursue an appeal of the BIAās decision in federal court. Ten days after his
deportation, however, on June 13, 2006, Mr. Adame-Orozco did file a notice of
appeal in state court announcing his intention to challenge that courtās rejection
of his collateral attack on his drug convictions. After that filing, though, Mr.
Adame-Orozco apparently allowed his appeal to fall dormant.
3
In reaching this latter holding, the trial court relied on the Kansas
Supreme Courtās decision in State v. Muriithi, 46 P.3d 1145 (Kan. 2002). More
recently, though, the United States Supreme Court has held that an attorneyās
failure to advise a non-citizen defendant of the immigration consequences of
pleading guilty to a crime can, in certain circumstances, constitute ineffective
assistance of counsel under the Sixth Amendment. See Padilla v. Kentucky, 130
S. Ct. 1473, 1480-84 (2010). This case doesnāt call upon us to apply or interpret
Padilla, however. Mr. Adame-Orozco appeals only a question about Ā§ 1326(d)ās
meaning, not Padillaās import. As we explain below, we hold that Ā§ 1326(d)
permits a court in an illegal reentry case to reexamine the validity of the alienās
deportation proceedings ā just not a conviction that mightāve led to those
proceedings. Nothing in this holding precludes Mr. Adame-Orozco from
attempting a collateral attack on his underlying state convictions using Padilla (or
any other line of argument) in some other, appropriate venue.
-6-
B
So things went until April 2009 when federal authorities discovered Mr.
Adame-Orozco again living in Kansas. Another indictment followed, this time
charging Mr. Adame-Orozco with illegally reentering the country subsequent to a
conviction for an aggravated felony. See 8 U.S.C. Ā§Ā§ 1326(a) and 1326(b)(2).
Mr. Adame-Orozco replied with a motion to dismiss the indictment. Once
again, he did not dispute that his Kansas drug convictions qualified as
āaggravated feloniesā for purposes of the immigration laws. Rather, he argued
that the earlier deportation proceedings against him were deficient under 8 U.S.C.
Ā§ 1326(d)(2) because they didnāt afford him sufficient time before deportation to
pursue his collateral attack on those felony convictions in state court.
After the federal district court considered and eventually denied the motion,
Mr. Adame-Orozco pled guilty and was sentenced to 15 months in prison. In
doing so, though, he reserved his right to appeal the denial of his motion to
dismiss, a right he now pursues before us. At the same time, Mr. Adame-Orozco
sought to breathe new life into his state court appeal challenging the validity of
his state guilty plea. In late 2009, he filed a motion to reopen the appeal and, as
best we can tell from the materials submitted to us, that appeal is under
consideration by the Kansas court of appeals. 4
4
To provide details about his ongoing state court efforts, Mr. Adame-
Orozco has twice moved to supplement the record in this appeal. We grant the
(continued...)
-7-
II
A prosecution for illegal reentry under Ā§ 1326(a) generally requires the
government to prove two things: (1) that the alien āhas been denied admission,
excluded, deported, or removed or has departed the United States while an order
of exclusion, deportation, or removal is outstandingā; and (2) that the alien
thereafter has āenter[ed], attempt[ed] to enter, or is at any time found in, the
United States.ā 5 In turn, Ā§ 1326(b)(2) provides that those convicted under
Ā§ 1326(a) āwhose removal was subsequent to a conviction for commission of an
aggravated felonyā may receive a higher sentence. 6
In seeking to satisfy the first element of Ā§ 1326(a), the government may, as
it did here, produce evidence that the alien was deported while a deportation order
4
(...continued)
motions.
5
Certain exceptions to this rule, not pertinent to our case, can be found in
Ā§ 1326(a)(2).
6
In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the
Supreme Court held that Ā§ 1326(b)(2), rather than constituting a distinct element
or separate offense the jury must find, supplies the district judge with a potential
sentencing enhancement to a Ā§ 1326(a) conviction. Whether and to what degree
Almendarez-Torres remains good law after Blakely v. Washington, 542 U.S. 296
(2004), United States v. Booker, 543 U.S. 220 (2005), and their progeny is not
before us. Cf. Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J.,
concurring in part and concurring in the judgment) (suggesting that Almendarez-
Torres āhas been eroded by this Courtās subsequent Sixth Amendment
jurisprudence, and a majority of the Court now recognizes that [it] was wrongly
decidedā). Mr. Adame-Orozco has never raised that question in this case; to the
contrary, he has conceded throughout all the relevant proceedings that his state
court convictions satisfy Ā§ 1326(b)(2)ās requirements.
-8-
was outstanding against him. But what if the defendant-alien seeks to argue that
the deportation order was itself unlawful? May he do so in defense of an illegal
reentry charge, essentially launching a collateral attack on an earlier deportation
proceeding long after the time for appealing that order has passed and the order
has become final?
Section 1326(d) addresses these questions. It permits the defendant-alien
the chance to mount a collateral attack against a prior deportation order in
response to an illegal reentry prosecution ā but only in certain circumstances. A
defendant-alien may challenge the legality of a deportation order if, but only if,
he can show 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
review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. Ā§ 1326(d); see also United States v. Rivera-Nevarez, 418 F.3d 1104,
1107-08 (10th Cir. 2005). Because a final deportation order enjoys a presumption
of regularity, once the government shows that the alien was deported while such
an order was outstanding, the burden shifts to the defendant-alien, and it is he
who must prove each of Ā§ 1326(d)ās elements to overcome the presumed legality
-9-
of the earlier deportation order. See United States v. Arevalo-Tavares, 210 F.3d
1198, 1200 (10th Cir. 2000) (per curiam).
Mr. Adame-Orozco suggests to us, as he did to the district court, that he
can meet this burden. He maintains that he exhausted all administrative relief
available to him before the IJ and BIA. See 8 U.S.C. Ā§ 1326(d)(1). He submits
that his deportation proceedings failed to provide him an opportunity for judicial
review because they failed to afford him enough time to pursue state court efforts
to undo his aggravated felony convictions. Id. Ā§ 1326(d)(2). And this, he says,
rendered his deportation proceedings fundamentally unfair. Id. Ā§ 1326(d)(3).
Because Mr. Adame-Orozcoās argument ultimately presents us with a
purely legal question about the proper construction of Ā§ 1326(d), we review it de
novo. See United States v. Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004). In
doing so, we hold that his challenge fails at the second step of Ā§ 1326(d) because
his federal deportation proceedings did not āimproperly deprive[] [him] of the
opportunity for judicial review.ā 8 U.S.C. Ā§ 1326(d)(2). We reach this holding in
light of the statuteās language and in consonance with its history. 7
7
In coming to this conclusion, we do not mean to imply that Mr. Adame-
Orozco has satisfied the requirements of Ā§Ā§ 1326(d)(1) and (d)(3). It is unclear
with respect to subsection (d)(1), for example, whether Mr. Adame-Orozco
exhausted his available administrative remedies. While the parties before us all
concede that he did appeal the IJās deportation order to the BIA, Mr. Adame-
Orozco does not allege that he sought a stay of deportation until he could finish
his state court collateral attack on his drug convictions ā the same remedy he
now asks us to fault the IJ and BIA for failing to supply. But the government has
(continued...)
- 10 -
By its plain terms, Ā§ 1326(d)(2) provides that an alien prosecuted for illegal
reentry āmay not challenge the validity of the deportation orderā unless the alien
demonstrates that āthe deportation proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial review.ā 8 U.S.C.
Ā§ 1326(d) (emphasis added). In so doing, the statute imposes two significant
limitations. First, the defendant may attack the prior deportation only by
reference to the āproceedings at which the order was issued.ā Second, the
defendant must limit this attack to the argument that those proceedings deprived
him of judicial review of the deportation order itself. Unless the defendantās
challenge fits within these narrow constraints, it isnāt cognizable under
Ā§ 1326(d)(2).
Notably, the statute does not speak of, let alone specify, any right in an
illegal reentry proceeding to pursue a collateral attack on any other orders,
judgments, or proceedings. And it supplies no stay of deportation while appellate
or habeas proceedings may be ongoing in other matters. This doesnāt mean, of
course, that an alien lacks the opportunity to appeal or collaterally attack an
aggravated felony conviction. Of course not. It merely means that he must do so
in the traditional way, pursuant to state and federal laws governing criminal
appeals and collateral review ā and not in an illegal reentry prosecution.
7
(...continued)
decided not to contest this issue, see Answer Br. at 17-18, and we need not pursue
it further in light of our holding under subsection (d)(2).
- 11 -
There can be no genuine dispute that Mr. Adame-Orozco received what
process Ā§ 1326(d)(2) promises. He freely admits that he was able to (and did)
appeal the IJās deportation order to the BIA, and he identifies no impediment to
his ability to appeal the BIAās decision to a federal court. Where, as here, the
statuteās language is plain and plainly satisfied, āthe sole function of the courtsā
can only be āto enforce it according to its terms.ā United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989) (quotation marks omitted); see also
United States v. Saenz-Gomez, 472 F.3d 791, 793 (10th Cir. 2007) (āIf the
statutory language is clear, our analysis ordinarily ends.ā (quotation marks
omitted)).
Still, the statutory language tells us even more. The absence of any link
between an alienās procedurally proper deportation proceedings and his ongoing
challenge to an aggravated felony conviction is reinforced by the plain language
of two more provisions: 8 U.S.C. Ā§Ā§ 1227(a)(2)(A)(iii) and 1101(a)(48)(A).
Under 8 U.S.C. Ā§ 1227(a)(2)(A)(iii), an alien who is āconvicted of an aggravated
felony at any time after admission is deportable.ā And 8 U.S.C.
Ā§ 1101(a)(48)(A), in turn, defines a āconvictionā to mean, among other things, āa
formal judgment of guilt.ā From this, it follows that an alien is lawfully
deportable as soon as a formal judgment of guilt is entered by a trial court.
Indeed, Congress adopted its Ā§ 1101(a)(48)(A) definition of āconvictionā in 1996
specifically to supplant a prior BIA interpretation that had required deportation to
- 12 -
wait until direct appellate review (though never collateral review) of the
conviction was exhausted or waived. See Moosa v. INS, 171 F.3d 994, 1000-02
(5th Cir. 1999).
Sections 1227 and 1101 confirm, then, that while the alien may have the
right to pursue appellate or collateral relief for an aggravated felony conviction
under various provisions of state and federal law, the government need not wait
until all these avenues are exhausted before deporting him. We emphasized just
this point in Saenz-Gomez, where we held that a defendant whose aggravated
felony conviction was entered by a trial court was lawfully deportable nine days
later, even though he had not yet had a chance to appeal ā let alone collaterally
attack ā his conviction. See 472 F.3d at 793-94 (rejecting defendantās argument
that āa judgment does not become a conviction within the meaning of 8 U.S.C.
Ā§ 1326(b) . . . until the direct appeal process has been exhausted or waivedā).
Neither can we conceive any reasonable way to reconcile Congressās
express commands in Ā§Ā§ 1227 and 1101 with Mr. Adame-Orozcoās proposed
reading of Ā§ 1326(d)(2). While Ā§Ā§ 1227 and 1101 authorize deportation
immediately after a trial courtās judgment of guilt, under Mr. Adame-Orozcoās
view of Ā§ 1326(d)(2) the BIA would have to postpone that deportation (at least for
those it prophesies will later be tried for illegal reentry) until after an aggravated
felony conviction can be tested not just through direct appeal but also through
collateral attack. As a formal matter, the government wouldnāt have to wait to
- 13 -
deport convicted aliens until after their convictions had survived direct and
collateral review. But as a practical matter, Mr. Adame-Orozco would have the
government do exactly that ā at least for those who might be able to mount a
meritorious challenge on their underlying criminal convictions ā if it wanted to
maintain the flexibility to prosecute deported aliens who later reentered the
country illegally. In a sort of statutory sleight of hand, then, what Ā§Ā§ 1227 and
1101 give, Mr. Adame-Orozcoās reading of Ā§ 1326(d)(2) would implicitly but
significantly take away. While Mr. Adame-Orozco urges this result with vigor,
he offers no rational explanation for such an unlikely interpretation of the
statuteās terms. 8
If, as Mr. Adame-Orozco seems to imagine, Congress had essentially
wished to take the step of affording aliens convicted of aggravated felonies with
an automatic stay of deportation pending the completion of appellate and
collateral review of their convictions, it knew well how to do so explicitly, rather
than leave the job to judicial implication. Congress, after all, has expressly
provided for stays of deportation elsewhere in the immigration laws. See, e.g.,
8
The implausibility of Mr. Adame-Orozcoās view of the statute may be
further suggested by the fact that, since the enactment of Ā§ 1101(a)(48)(A)ās
definition, the BIA has lawfully interpreted it to allow deportation of convicted
aliens ānotwithstanding a subsequent state action purporting to erase all evidence
of the original determination of guilt through a rehabilitative procedure.ā In re
Roldan-Santoyo, 22 I. & N. Dec. 512, 523 (BIA 1999) (en banc), order vacated
sub nom. on other grounds by Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000); see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005)
(upholding BIAās interpretation).
- 14 -
8 U.S.C. Ā§ 1231(c)(2)(A)(i)-(ii). The fact that it did not do likewise here is a
textual point of comparison we are not entitled to ignore lightly. Cf. Custis v.
United States, 511 U.S. 485, 492 (1994) (ā[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.ā (citation and quotation marks omitted)).
Congress, after all, does not usually āhide [such] elephants in mouseholes.ā
Whitman v. Am. Trucking Assāns, Inc., 531 U.S. 457, 468 (2001).
Then there is also the matter of the statuteās history. Prior to the enactment
of Ā§ 1326(d), the validity of the BIAās administrative deportation order was not
essential to a conviction under Ā§ 1326(a). See United States v. Mendoza-Lopez,
481 U.S. 828, 833-37 (1987). All that was required, at least in certain circuits,
was an administrative deportation order, a deportation, and a subsequent reentry
in defiance of that deportation order. See id. at 833 n.6 (detailing circuit split).
The Supreme Court held, however, that this arrangement violated the
Constitutionās due process guarantee. Id. at 837. The Court explained that the
defendant-alien in a Ā§ 1326(a) prosecution cannot be criminally sanctioned for
defying a deportation order if he was never afforded any means to obtain judicial
review of that deportation order. Id. at 837-39.
Section 1326(d) was enacted in response to Mendoza-Lopez and in an effort
to āincorporate[] [the Courtās judgment] into statutory law.ā Ira J. Kurzban,
- 15 -
Immigration Law Sourcebook 186 (10th ed. 2006); see also United States v.
Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998). The statuteās genesis was
thus all about ensuring some form of judicial review of the administrative
deportation proceedings ā not the underlying criminal convictions for which
other avenues of judicial review had already long existed. When, as here, a
statute āis obviously transplanted from another legal source, whether the common
law or other legislation, it brings the old soil with it.ā Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). And
in this case, the lines in the soil contain no sign of the interpretive path Mr.
Adame-Orozco would have us take. See Mendoza-Lopez, 481 U.S. at 839 n.17
(holding that āpermitting collateral challenge to the validity of deportation orders
in proceedings under Ā§ 1326 does not create an opportunity for aliens to delay
deportation, since the collateral challenge we recognize today is available only in
criminal proceedings instituted after reentryā). 9
9
In response to all the foregoing, Mr. Adame-Orozco seeks to rely on
United States v. Copeland, 376 F.3d 61 (2d Cir. 2004), which he reads to hold
that āa person is deprived of judicial review [under Ā§ 1326(d)] when the time
interval between entry of the final deportation order and physical deportation is
too brief to obtain judicial review.ā Opening Br. at 9. But Copeland is easily
distinguished. For one, that case dealt with an IJ who misinformed the alien
about his right to pursue discretionary relief, and it was seemingly, albeit
implicitly, premised on a belief that an alien has a constitutional right to be
informed about such possibilities. See Copeland, 376 F.3d at 64, 68-70. Mr.
Adame-Orozco, by comparison, does not allege that the IJ provided him with any
misinformation, so Copeland simply does not speak to his case. For another,
unlike the petitioner in Copeland, Mr. Adame-Orozco cannot show prejudice from
(continued...)
- 16 -
Having concluded that Ā§ 1326(d)(2) does not bear the promise of an
automatic stay of deportation for those convicted of aggravated felonies, the
question remains: What if Mr. Adame-Orozco is, at some future point, successful
in his now-renewed effort to overturn his drug convictions in state court? Does
he have some means available to him to seek recourse? The answer is, of course,
that he might seek to petition for habeas relief in the normal course, and āif [he]
is successful, he may then apply for reopening of any federal sentence enhanced
by the stateā conviction. Custis, 511 U.S. at 497; see also United States v.
Garcia, 42 F.3d 573, 581-82 (10th Cir. 1994). What the appropriate outcome of
such a habeas application might be we do not now purport to decide. Cf. Custis,
511 U.S. at 497 (āWe express no opinion on the appropriate disposition of such
an application.ā). For current purposes, it suffices to say that any relief must
come through that traditional process, and not through Ā§ 1326(d). 10
9
(...continued)
the loss of judicial review of his deportation order because he doesnāt offer any
reason to think the BIA erred in issuing such an order in his case. See United
States v. Lopez, 445 F.3d 90, 100-01 (2d Cir. 2006). Beyond and in addition to
all that, this circuit has held that an alien has no constitutional right to be
informed of avenues of discretionary relief. See United States v. Aguirre-Tello,
353 F.3d 1199, 1205 (10th Cir. 2004) (en banc); see also Ali v. Ashcroft, 395 F.3d
722, 732 (7th Cir. 2005) (no right to discretionary relief); Mejia Rodriguez v.
Reno, 178 F.3d 1139, 1146-47 (11th Cir. 1999) (same); cf. Trench v. INS, 783
F.2d 181, 184 (10th Cir. 1986) (holding that due process does not require
allowing a petitioner to ācollaterally attack the legitimacy of [a] state criminal
conviction[] in [a] deportation proceeding[]ā).
10
Had Mr. Adame-Orozco remained abroad after his deportation, a BIA
(continued...)
- 17 -
* * *
We hold that Ā§ 1326(d) does not afford a license to bootstrap separate
criminal proceedings into the process guaranteed to aliens facing deportation.
Mr. Adame-Orozco was not improperly deprived of the opportunity for judicial
review of his federal deportation order within the meaning of Ā§ 1326(d)(2) simply
because the IJ and BIA declined to stay his deportation until he could complete a
collateral attack on his state court aggravated felony convictions. The judgment
of the district court is
Affirmed.
10
(...continued)
regulation would have precluded him from seeking to reopen and undo his
deportation proceedings. See Rosillo-Puga v. Holder, 580 F.3d 1147, 1151 (10th
Cir. 2009) (quoting 8 C.F.R. Ā§ 1003.2(d)). Nonetheless, the Executive can and
sometimes may facilitate the return to the United States of aliens āwho were
removed pending judicial review but then prevailed before the courts.ā Brief for
the Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No. 08-681)
(citing 8 U.S.C. Ā§ 1182(d)(5)).
- 18 -