In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2368
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIO A RITA-C AMPOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:05-CR-48—Philip P. Simon, Chief Judge.
A RGUED A PRIL 6, 2010—D ECIDED JUNE 8, 2010
Before K ANNE, R OVNER, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. In September 1993, fourteen-year-
old Mario Arita-Campos was apprehended by immigra-
tion officials. Because he had entered the United States
illegally without inspection, immigration officials deter-
mined that he was deportable.1 When Arita-Campos
1
In 1997, after Arita-Campos had been ordered deported,
Congress changed the nomenclature of immigration law,
electing to use the term “removal” instead of the previously
(continued...)
2 No. 09-2368
subsequently failed to appear at his scheduled deportation
hearing in February 1994, he was ordered deported in
absentia. That order was never executed, however,
because Arita-Campos never appeared for deportation.
After being apprehended again nearly ten years later in
Illinois, in 2004 the government finally deported Arita-
Campos per the original order of deportation.
Not to be deterred, Arita-Campos re-entered the
country sometime during the following year, 2005. This
time he was caught and charged with illegal re-entry after
being deported in violation of 8 U.S.C. § 1326(a). But
because the 1994 order of deportation, which is the under-
lying basis for the current offense, was entered in absentia,
Arita-Campos moved to dismiss the 2005 indictment,
alleging that he never received notice of the 1994 deporta-
tion hearing. After the district court denied Arita-Campos’s
motion to dismiss the indictment, he pled guilty to the
charged conduct but reserved his right to appeal the
denial of his motion to dismiss. We now affirm.
I. B ACKGROUND
Mario Arita-Campos was fourteen years old when he
first entered the country in 1993. After immigration
1
(...continued)
used “deportation.” Calcano-Martinez v. INS, 533 U.S. 348, 350
n.1 (2001); Peralta-Cabrera v. Gonzales, 501 F.3d 837, 839 n.1 (7th
Cir. 2007). Because the challenged order underlying this
case was for “deportation,” we will continue to use that termi-
nology throughout this opinion.
No. 09-2368 3
officials discovered that Arita-Campos was not properly
inspected upon entry, they deemed him deportable.
In October of the same year, Arita-Campos was per-
sonally served with an Order to Show Cause and Notice
of Hearing (“OSC”), informing him of the allegations
supporting the charge of deportation and ordering him
to appear before an immigration judge at a later, unspeci-
fied date. Arita-Campos provided a physical mailing
address as required by the OSC and he was then
released into his brother’s custody pending his deporta-
tion hearing.
In February 1994, a deportation hearing was held in
Arita-Campos’s case. The proceeding actually involved
ten aliens, none of whom were present. The immigration
judge called all ten individuals’ names, and when none
appeared, he indicated that he would proceed in absentia.
The immigration judge proceeded to admit exhibits
consisting of the Orders to Show Cause and Certified
Written Notices pertaining to and provided to each
individual absent from the day’s proceedings.
After marking the exhibits, the judge made the following
findings: the evidence proffered by the government
was uncontroverted; the aliens failed to appear for their
scheduled hearings, even though all had received
proper notice by certified mail; and the aliens therefore
abandoned any relief in defense of deportability. Based
on the foregoing, the judge ordered all of the aliens de-
ported to their respective countries. A warrant was then
issued ordering Arita-Campos to appear for deportation
in September 1994. Arita-Campos never appeared.
4 No. 09-2368
Nearly ten years later, in May 2004, Arita-Campos was
arrested in Illinois on the 1994 order of deportation. After
a Warrant for Deportation was issued in June 2004 , Arita-
Campos was at last deported. But at some point during
the following year, Arita-Campos re-entered the United
States illegally.
In March 2005, Arita-Campos was once again appre-
hended, this time by local authorities in Indiana who
believed that Arita-Campos had violated state law. Al-
though he was never charged with a state-law crime, his
arrest alerted federal officials to his presence in the coun-
try. This time, federal immigration officials indicted
and charged Arita-Campos with re-entry after deporta-
tion in violation of 8 U.S.C. § 1326(a). But Arita-Campos
again evaded arrest. He was finally discovered in Con-
necticut more than three years later, where in 2008
he was arrested on the grounds charged in the federal
indictment.
Arita-Campos was detained and a hearing was set in
his case. Prior to his hearing, the government filed a
motion in limine regarding anticipated litigation of the
1994 order of deportation, which served as the basis for
the charged conduct. That same day, Arita-Campos filed
a motion to dismiss the indictment, challenging the
validity of the previous deportation order upon which
the government was relying to prove its case. Because
he claimed never to have received notice of the hearing,
Arita-Campos argued that the original order was con-
stitutionally infirm and could not serve as the basis for
the underlying offense.
No. 09-2368 5
After a hearing and numerous briefings, the district
court found that because Arita-Campos failed to exhaust
his administrative remedies or show that the hearing was
fundamentally unfair, he was unable to challenge the
validity of the original deportation order. The district
court therefore denied Arita-Campos’s motion to
dismiss and granted the government’s motion in limine.
In March 2009, the parties filed a plea agreement in
which Arita-Campos pled guilty to violating 8 U.S.C.
§ 1326(a). He was sentenced to six months in custody, and
the court declared his sentence “time served.” But Arita-
Campos reserved his right to appeal the district
court’s denial of his motion to dismiss. That issue is now
before us.
II. A NALYSIS
Title 8, section 1326 of the United States Code makes it
an offense to re-enter the United States illegally after
having been deported. Because an original order of depor-
tation is a condition precedent to the operation of § 1326,
the Supreme Court has held that a defendant may col-
laterally attack the deportation order underlying the
offense. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38
(1987). The flip side of this principle, of course, is that the
government may only “rely on a prior deportation as an
element of the crime of unlawful re-entry, [if]
the proceedings leading up to the deportation . . .
comport[ed] with principles of due process.” United States
v. Roque-Espinoza, 338 F.3d 724, 727 (7th Cir. 2003).
6 No. 09-2368
But it is the defendant’s burden if he wishes to col-
laterally attack an underlying deportation order. See, e.g.,
United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th
Cir. 2000) (“[T]he burden of proof in a collateral attack on
a deportation order is on a defendant based on the pre-
sumption of regularity that attaches to a final deportation
order.”). Our case law therefore traditionally required a
defendant to make two showings in order to mount a
successful collateral attack: “the defendant must first
show that the underlying order was the result of a ‘deporta-
tion hearing [that] effectively foreclosed his right to
direct judicial review of the deportation order,’ and then
establish that ‘the deportation hearing was fundamentally
unfair.’ ” Roque-Espinoza, 338 F.3d at 727 (quoting United
States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994))
(alteration in original).
Then in 1996, Congress amended § 1326, adding a third
prong to the proof required:
In a criminal proceeding under this section, an
alien may not challenge the validity of the deporta-
tion order described in subsection (a)(1) of this
section 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 which
the order was issued improperly deprived
the alien of the opportunity for judicial
review; and
No. 09-2368 7
(3) the entry of the order was fundamen-
tally unfair.
8 U.S.C. § 1326(d).
Several circuits have held that because the three require-
ments are stated in the conjunctive, a defendant must
satisfy all three prongs to prevail in his collateral attack.
See United States v. Torres, 383 F.3d 92, 98-99 (3d Cir.
2004); United States v. Wilson, 316 F.3d 506, 509 (4th Cir.
2003), abrogated on other grounds by Lopez v. Gonzales, 549
U.S. 47 (2006); United States v. Zelaya, 293 F.3d 1294, 1297
(11th Cir. 2002); United States v. Fernandez-Antonia, 278
F.3d 150, 157 (2d Cir. 2002). The Ninth Circuit, however,
qualified that position in United States v. Muro-Inclan,
when it held that “[t]he exhaustion requirement of
8 U.S.C. § 1326(d) cannot bar collateral review of a de-
portation proceeding when the waiver of right to an
administrative appeal did not comport with due process.”
249 F.3d 1180, 1183 (9th Cir. 2001).
For our part, we have yet to remark on the distinction,
if any, between the circuits’ approaches. Nor have we
held expressly that all three requirements must be met,
although we have certainly implied that this is the case
on a few recent occasions. See, e.g., United States v. De Horta
Garcia, 519 F.3d 658, 661 (7th Cir. 2008), cert. denied, 129
S. Ct. 489 (2008); United States v. Santiago-Ochoa, 447
F.3d 1015, 1019-20 (7th Cir. 2006); Roque-Espinoza, 338
F.3d at 728.
We need not resolve either of those questions now,
however, because Arita-Campos fails to satisfy any of the
8 No. 09-2368
three requirements contained in § 1326. To illustrate the
shortcomings in Arita-Campos’s position, we now turn
to the merits, reviewing the denial of his motion to
dismiss de novo. Santiago-Ochoa, 447 F.3d at 1019.
A. Exhaustion
To satisfy the exhaustion prong of § 1326, an alien
must have filed a motion to reopen, appealed to the
Board of Immigration Appeals, and pursued all other
administrative remedies available to him. See Roque-
Espinoza, 338 F.3d at 728-29. For purposes of § 1326, a
failure to follow these procedures, including a failure to
file a motion to reopen, will result in the inability to
challenge the deportation order. United States v.
Hinojosa-Perez, 206 F.3d 832, 836 (9th Cir. 2000).
Ordinarily an alien has ninety days from the entry of the
final decision within which to file a motion to reopen.
8 U.S.C. § 1229a(c)(7)(C), 8 C.F.R. § 1003.23(b)(1). But this
time constraint is inapplicable when the underlying
order was made in absentia and the alien either received
no notice of the proceeding or exceptional circumstances
kept him from appearing. Id. § 1229a(b)(5)(C), 8 C.F.R.
§ 1003.23(b)(4)(ii). In fact, if an alien can demonstrate
that he was never notified of the proceeding, a
motion to reopen may be filed “at any time.” Id.
§ 1229a(b)(5)(C)(ii), 8 C.F.R. § 1003.23(b)(4)(ii).
In this case, Arita-Campos never filed a motion to
reopen. He argues that this failure resulted from his
never receiving notice of the first hearing, and therefore
No. 09-2368 9
being unaware of this remedy. Under different circum-
stances, we might agree. There are, however, several
factors that cut against Arita-Campos’s position.
Assuming without deciding that he did not receive
notice of his original hearing,2 then Arita-Campos had
the ability to file his motion to reopen at any time. But
he has not availed himself of this remedy. And although
Arita-Campos argues that he was unaware of the avail-
ability of a motion to reopen, we are not persuaded.
When Arita-Campos was first apprehended in 1994, he
was personally served with the OSC. The OSC informed
him of the availability of the motion to reopen, so even
without notice of the hearing, Arita-Campos was made
aware of available post-hearing procedures.
Of course, we are cognizant of the fact that Arita-Campos
received the OSC when he was only fourteen years old.
We realize that a fourteen-year-old is unlikely to recog-
nize the significance of the OSC and the procedures
detailed in that order. But Arita-Campos was not arrested
on the order of deportation until ten years later, at
which point he was no longer a teenager. He certainly
could have discovered his rights within that ten-year
2
Although Arita-Campos vehemently maintains that he never
received notice, and the government ardently disputes this
contention, we need not resolve this issue to dispose of the
case before us. Because the outcome of this case is the same
whether or not Arita-Campos received notice of his deporta-
tion hearing, we will assume only for the sake of argument that
the government failed to provide him with the required notice.
10 No. 09-2368
period, especially considering the fact that he has demon-
strated at least some acumen with regard to seeking
legal protection. In 2003, for instance, he submitted ap-
plications for Temporary Protected Status and Employ-
ment Authorization, in which he admitted his illegal
entry into the country. These filings show that Arita-
Campos was not entirely oblivious to legal procedures,
and likely could have discovered his rights with regard
to a motion to reopen.
But even if this is not the case, thirty-nine days elapsed
between Arita-Campos’s 2004 arrest and his deportation.
Again, assuming without deciding that he is correct in
his assertion that he never received notice, Arita-Campos
could have filed a motion to reopen during those thirty-
nine days. See, e.g., Hinojosa-Perez, 206 F.3d at 836 (finding
that eight days between arrest and deportation was
sufficient time to file a motion to reopen). He did not.
Because Arita-Campos never filed a motion to re-
open—within ninety days, ten years, or even after
his arrest—he failed to exhaust his administrative reme-
dies. Consequently, he fails to satisfy § 1326’s first prong.
B. Judicial Review
Nor can Arita-Campos satisfy the second prong of
§ 1326’s requirements—he is unable to show that he was
deprived of the opportunity for judicial review of the
immigration judge’s legal interpretations. The habeas
corpus statute, 28 U.S.C. § 2241, is written broadly enough
to allow an alien in custody to petition the federal courts
for habeas corpus relief. See INS v. St. Cyr, 533 U.S. 289,
No. 09-2368 11
312-13 (2001). As such, we have held that “an alien is not
deprived of judicial review for purposes of [§] 1326(d)(2)
as long as he has recourse to relief through a petition
for habeas corpus.” Santiago-Ochoa, 447 F.3d at 1019 (citing
Roque-Espinoza, 338 F.3d at 729). If a defendant fails to
show that he was unable to petition for relief under § 2241,
he consequently fails to show that he was deprived
of judicial review. Id.
In this case, Arita-Campos did not demonstrate that
he was deprived of the opportunity for judicial review.
He made no attempt to demonstrate that habeas relief
was unavailable to him. “The fact that [Arita-Campos]
chose not to make the attempt does not mean that he
was deprived of all avenues of judicial review of his
[deportation] order.” Roque-Espinoza, 338 F.3d at 729.
Therefore, Arita-Campos has also failed to satisfy the
second element of § 1326.
C. Fundamental Unfairness
Finally, we turn to the third showing required under
§ 1326, fundamental unfairness. To establish funda-
mental unfairness, a defendant must show both that his
due process rights were violated and that he suffered
prejudice from the deportation proceedings. De Horta
Garcia, 519 F.3d at 661; Santiago-Ochoa, 447 F.3d at 1019.
We first take up the issue of due process.
The unavailability of discretionary relief does not
amount to a deprivation of due process. Khan v. Mukasey,
517 F.3d 513, 518 (7th Cir. 2008) (“[W]e have repeatedly
12 No. 09-2368
held that an alien’s right to due process does not extend
to proceedings that provide only such discretionary
relief because an appeal to discretion is not a substantive
entitlement.” (internal quotation marks omitted)). In
fact, the majority of circuits, including our own, have
held that “due process does not [even] encompass a
‘right to be informed of eligibility for—or to be considered
for—discretionary relief.’ ” De Horta Garcia, 519 F.3d at
661 (quoting Santiago-Ochoa, 447 F.3d at 1020). Yet the
only deprivation of due process alleged by Arita-Campos
is that he was unable to seek voluntary departure.
Because availability of voluntary departure is a discre-
tionary decision, id. at 662, Arita-Campos has not shown
a due process violation.
Nor has Arita-Campos shown that he was prejudiced
by the deportation proceedings. In order to establish
that he was prejudiced by a deportation proceeding, a
defendant must prove that “judicial review ‘would have
yielded him relief from deportation.’ ” Id. at 661 (quoting
Espinoza-Farlo, 34 F.3d at 471). Again, the only relief Arita-
Campos claims to have been deprived of is voluntary
departure. Not only does he fail to satisfy his burden,
but also he fails to even attempt to demonstrate that,
with notice, he would have been granted relief from
deportation. As a result, Arita-Campos has failed to
satisfy § 1326’s third requirement.
III. C ONCLUSION
Because Arita-Campos cannot establish any of the
elements required by 8 U.S.C. § 1326, his motion to
No. 09-2368 13
dismiss was properly denied. The district court’s decision
is therefore A FFIRMED.
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