F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 12, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-3093
JOSE ADRIAN CHAVEZ-ALONSO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 04-CR-10153-01-MLB)
Before McCONNELL and BALDOCK, Circuit Judges and ARMIJO, District
Judge. *
McCONNELL, Circuit Judge.
John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for
Defendant-Appellant.
Eric F. Melgren, United States Attorney, and Brent I. Anderson, Assistant United
States Attorney, Wichita, Kansas, for Plaintiff-Appellee.
*
The Honorable M. Christina Armijo, United States District Judge for the
District of New Mexico, sitting by designation.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Jose Adrian Chavez-Alonso was charged with illegally reentering the
United States after having been deported subsequent to a conviction for an
aggravated felony. Mr. Chavez-Alonso filed a motion to dismiss the indictment,
challenging the validity of his underlying deportation in 1995. Specifically, he
claims that the 1995 deportation proceeding was fundamentally unfair because the
immigration judge failed to inform him of his eligibility for relief from
deportation, despite promises to the contrary. The district court denied the
motion to dismiss and Mr. Chavez-Alonso entered a conditional plea of guilty.
We AFFIRM.
I.
Mr. Chavez-Alonso, a citizen of Mexico, first entered the United States
without inspection in 1980. He was granted permanent resident status in February
1990. On August 7, 1992, Mr. Chavez-Alonso was convicted of felony
possession of a deadly weapon, a sawed-off shotgun, and was sentenced to three
years in prison. Upon his release from prison in 1995, Mr. Chavez-Alonso was
released to the custody of the Immigration and Naturalization Service (INS).
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On November 7, 1994, Mr. Chavez-Alonso was ordered to show cause why
he should not be deported from the United States. The Order to Show Cause
stated:
The immigration judge will advise you regarding relief from
deportation for which you may be eligible. You will be given a
reasonable opportunity to make an application for any such relief. If
you are not satisfied with the decision of the immigration judge, you
have the right to appeal. The immigration judge will provide you
with your appeal rights.
The deportation hearing was held on July 31, 1995, and the immigration judge
entered an order of deportation. The order of deportation indicates that Mr.
Chavez-Alonso waived his right to appeal the order. The INS issued a warrant of
deportation, which was executed on August 31, 1995, at Calexio, California.
Mr. Chavez-Alonso was charged with illegally re-entering the United States
in 1997, but the charges were dismissed and he was deported in 1998. He was
also deported in 2001 and 2003.
In May 2004, Mr. Chavez-Alonso was found in McPherson, Kansas without
having obtained permission to re-enter the United States. He was indicted, under
8 U.S.C. § 1326, for re-entry after deportation subsequent to a conviction for the
commission of an aggravated felony. Mr. Chavez-Alonso filed a motion to
dismiss, challenging the underlying 1995 deportation order. He claimed that the
deportation hearing violated his due process right to apply for residency prior to
deportation because both the immigration judge and the Order to Show Cause
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stated that he would be informed of any relief for which he may have been
eligible, but the immigration judge never informed him that he was eligible for
relief under Section 212(c) of the Immigration and Nationality Act. The district
court denied the motion, finding that Mr. Chavez-Alonso’s position was
foreclosed by United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.
2004) (en banc), in which this Court held that a potential deportee has no
constitutional right to be informed of the existence of discretionary relief. Mr.
Chavez-Alonso entered a conditional plea of guilty and was sentenced to 48
months in prison. He now appeals the district court’s denial of his motion to
dismiss.
II.
On appeal, Mr. Chavez-Alonso contends that our decision in Aguirre-Tello
does not control the disposition of this case because the immigration judge
expressly stated that all potential deportees, including Mr. Chavez-Alonso, would
be informed as to whether they were eligible for discretionary relief. According
to Mr. Chavez-Alonso, the immigration judge never informed him that he was
eligible for relief, even though, as a legal permanent resident, he may have been
eligible for relief under § 212(c) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(c) (repealed Sept. 30, 1996). Mr. Chavez-Alonso claims that the
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immigration judge’s affirmative misrepresentation constituted a denial of due
process distinct from the one we rejected in Aguirre-Tello.
We review de novo constitutional challenges to an underlying deportation
order. Aguirre-Tello, 353 F.3d at 1204. Congress has imposed specific
limitations on an alien’s right to collaterally attack an underlying deportation
order for charges of illegal reentry. United States v. Sandoval, 390 F.3d 1294,
1298 (10th Cir. 2004). To collaterally attack a deportation order, an alien must
demonstrate 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. § 1326(d). The defendant bears the burden of proof. Aguirre-
Tello, 353 F.3d at 1204.
Mr. Chavez-Alonso cannot collaterally attack his underlying deportation
order because he failed to exhaust his administrative remedies. The record
indicates that he waived his right to appeal the 1995 deportation order to the
Board of Immigration Appeals. Mr. Chavez-Alonso presents no explanation for
his failure to appeal and does not even address the exhaustion requirement. An
alien who knowingly waives the right to appeal an immigration judge’s order of
deportation fails to exhaust administrative remedies under § 1326(d)(1). See
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United States v. Esparza-Aguilar, No. 03-4017, 2004 WL 1157832, at *1 (10th
Cir. May 25, 2004); United States v. Johnson, 391 F.3d 67, 77 (2d Cir. 2004);
United States v. Muro-Inclan, 249 F.3d 1180, 1182-83 (9th Cir. 2001). Mr.
Chavez-Alonso has not argued that he agreed to the waiver unknowingly. Indeed,
the Order to Show Cause he cites in support of his argument that the immigration
judge was under an obligation to inform him of discretionary relief specifically
informs him of his right to appeal. Accordingly, we find that by knowingly
waiving his right to appeal, Mr. Chavez-Alonso failed to exhaust his
administrative remedies and cannot collaterally attack his 1995 deportation order.
At least one circuit has held that an alien’s failure to exhaust administrative
remedies under § 1326(d)(1) may be excusable where the waiver of appeal is
premised on constitutionally relevant misinformation conveyed by the
immigration judge. See Johnson, 391 F.3d at 74-75. That decision, however, was
premised on that Circuit’s position – contrary to Aguirre-Tello – that an alien
facing deportation has a constitutional right to be informed of eligibility for
discretionary relief. See United States v. Copeland, 376 F.3d 61, 72 (2d Cir.
2004). Because that premise is contrary to this Court’s en banc holding in
Aguirre-Tello, we do not adopt it.
In Aguirre-Tello, the immigration judge informed all potential deportees at
an August 1994 deportation hearing that “you might be eligible for some pardon
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or for asylum. If you are eligible for a pardon, I will tell you.” Aguirre-Tello,
353 F.3d at 1201. Despite the representation that the immigration judge would
inform deportees if they were eligible for a “pardon,” this Court held that “there
is no constitutional right to be informed of the existence of discretionary relief for
which a potential deportee might be eligible.” Id. at 1205. Thus, our holding in
Aguirre-Tello applies even to those cases in which the immigration judge (or
Order to Show Cause) states that the immigration judge will inform potential
deportees of their eligibility for relief. Because the immigration judge was under
no legal obligation to inform Mr. Chavez-Alonso of his eligibility for relief from
deportation under § 212(c), Mr. Chavez-Alonso’s wavier was not premised on
constitutionally relevant misinformation. Cf. Aguirre-Tello, 353 F.3d at 1210 n.9
(immigration judge’s failure to inform alien of eligibility for discretionary relief
did not deprive the alien of the opportunity for judicial review or affect the
voluntariness of the alien’s waiver of appeal because the deportation proceeding
was not fundamentally unfair). Mr. Chavez-Alonso has therefore failed to
exhaust his administrative remedies and cannot collaterally attack his underlying
deportation order.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court
denying Mr. Chavez-Alonso’s motion to dismiss, and uphold his conviction.
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