IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50186
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JORGE HERNANDEZ-AVALOS
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
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May 11, 2001
Before JOLLY, MAGILL* and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Jorge Hernandez-Avalos (“Hernandez”) appeals his conviction
for unlawfully reentering the United States after having been
removed. See 8 U.S.C. § 1326. Hernandez contends that the
unlawful reentry indictment should have been dismissed because the
earlier removal proceeding was fundamentally unfair because he was
incorrectly removed as an “aggravated felon.” He argues that the
unfairness stems from the fact that although his conviction was a
*
Circuit Judge of the Eighth Circuit, sitting by designation.
1
felony under Colorado law, it was not considered a felony under
federal law. Because we do not agree that the removal proceeding
was fundamentally unfair, we affirm his conviction.
I
In February 1999, Hernandez, a citizen of Mexico, pleaded
guilty in a Colorado court to one count of possession of heroin, a
class three felony punishable under the laws of Colorado by up to
twelve years in prison. See COLO. REV. STAT. ANN. §§ 18-18-203, 18-
18-405, 18-1-105. A notation on the judgment of conviction
suggests that one of the terms of the plea agreement was that
Hernandez would “cooperate with [the] INS.” The Colorado state
court sentenced Hernandez to ninety days’ imprisonment followed by
six years’ probation.
On March 24, 1999, the Immigration and Naturalization Service
(“INS”) commenced removal proceedings against Hernandez. The
“Notice of Intent to Issue a Final Administrative Removal Order”
informed Hernandez that his Colorado drug conviction qualified as
an “aggravated felony” under 8 U.S.C. § 1101(a)(43). It further
informed him that because he had been convicted of an aggravated
felony, he was (1) deportable under 8 U.S.C. 1227(a)(2)(A)(iii);
(2) subject to expedited administrative removal proceedings under
8 U.S.C. § 1228(b) without a hearing before an immigration judge;
and (3) ineligible for any discretionary relief from removal
pursuant to 8 U.S.C. § 1228(b)(5). The notice also advised
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Hernandez of his rights to obtain free legal services and to seek
judicial review of a final administrative order within fourteen
days unless he waived his right to appeal. The form indicates that
an interpreter explained these provisions in Spanish.
Also on March 24, Hernandez signed a waiver (written in
Spanish) stating that he did not dispute the INS’s factual
findings, that he waived his right to a hearing, that he consented
to his removal to Mexico, and that he waived his right to seek
judicial review of the removal order. The INS issued a “Final
Administrative Removal Order,” and Hernandez was then removed to
Mexico (through El Paso, Texas) on March 30, 1999.
Three days later, on April 2, Hernandez was arrested in El
Paso by border patrol agents. The instant indictment followed,
which charged him with unlawfully reentering the United States
after previously having been removed, in violation of 8 U.S.C. §
1326(a). Because Hernandez was considered an aggravated felon, the
government sought enhanced penalties under section 1326(b).
Although the maximum length of imprisonment under section 1326(a)
is two years, an alien “whose removal was subsequent to a
conviction for commission of an aggravated felony” may be sentenced
to twenty years in prison. 8 U.S.C. § 1326(b)(2).
Hernandez filed a motion to dismiss the indictment on the
grounds that the earlier removal proceeding upon which the
indictment was predicated violated due process of law.
3
Specifically, Hernandez argued that he had not been deportable
under the aggravated felony provision because his Colorado
conviction for simple heroin possession would not have been
considered a felony under analogous federal drug laws. The
district court denied Hernandez’s motion to dismiss, relying on
this court’s decision in United States v. Hinojosa–Lopez, 130 F.3d
691 (5th Cir. 1997) (holding that a state drug conviction that is
a felony under state law constitutes an “aggravated felony” for the
purpose of the Sentencing Guidelines).
Following a bench trial on stipulated facts, Hernandez was
convicted of unlawfully reentering the United States. The court
granted Hernandez’s request for a downward departure and sentenced
him to thirty months’ imprisonment and three years’ supervised
release. Hernandez now appeals.
II
A
The sole issue before this court is whether Hernandez’s
instant conviction for illegal reentry must be vacated because of
flaws in the earlier removal proceeding.1 We review de novo
1
Hernandez has raised an Apprendi issue with respect to his
sentence, but he does so for the sole purpose of preserving the
question for possible review by the United States Supreme Court.
As noted above, section 1326(b)(2) provides that the maximum prison
term may be increased from two years to twenty years if the alien
has been removed “subsequent to a conviction for commission of an
aggravated felony.” Because the fact of his prior drug conviction
was not alleged in the indictment, Hernandez contends that his
thirty-month prison term exceeded the statutory maximum. Hernandez
concedes (as he must) that his argument is directly contrary to
4
Hernandez’s due process challenge to his conviction. See United
States v. Estrada-Tochez, 66 F.3d 733, 735 (5th Cir. 1995).
To successfully collaterally attack an earlier removal order,
which serves as an element of an offense under 8 U.S.C. § 1326, an
alien must establish that (1) the prior hearing was fundamentally
unfair; (2) the hearing effectively eliminated the alien’s right to
seek judicial review of the removal order; and (3) the procedural
deficiencies caused the alien actual prejudice. See United States
v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000)(citing United
States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d
772 (1987)).
B
Our analysis begins and ends with the question whether the
removal proceeding was fundamentally unfair in the sense that it
resulted in “a denial of justice” or of due process of law.
Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993).
The crux of this case is the meaning of “aggravated felony,”
which is defined in the Immigration and Nationality Act (“INA”) to
include “illicit trafficking in a controlled substance . . . ,
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct.
1219, 1222, 140 L.Ed.2d 350 (1998), which held that a prior
conviction is a mere sentencing factor. While it has been
suggested that Almendarez-Torres may be inconsistent with Apprendi
v. New Jersey, 520 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), Almendarez-Torres is nevertheless binding on the lower
federal courts. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20,
118 S.Ct. 275, 284, 139 L.Ed.2d 199 (1997)(“[I]t is this Court’s
prerogative alone to overrule one of its precedents.”).
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including a drug trafficking crime (as defined in section 924(c) of
Title 18).” 8 U.S.C. § 1101(a)(43)(B). In section 924(c), the
term “drug trafficking crime” includes “any felony punishable under
the Controlled Substances Act (21 U.S.C. § 801 et seq.). . . .” 18
U.S.C. § 924(c)(2)(emphasis added).
In United States v. Hinojosa–Lopez, 130 F.3d 691, 694 (5th
Cir. 1997), we interpreted this definition from section 924(c) to
mean that a state drug conviction is a “drug trafficking crime”
(and thus an aggravated felony) if “(1) the offense was punishable
under the Controlled Substances Act and (2) it was a felony” under
either state or federal law. Five other circuits have reached the
same conclusion. See United States v. Restrepo-Aguilar, 74 F.3d
361, 364-66 (1st Cir. 1996); United States v. Polanco, 29 F.3d 35,
38 (2d Cir. 1994); United States v. Briones-Mata, 116 F.3d 308, 309
(8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000
(10th Cir. 1996); United States v. Simon, 168 F.3d 1271, 1272
(11th Cir. 1999); see also Steele v. Blackman, 236 F.3d 130, 136 &
n.5 (3d Cir. 2001)(dicta).
Applying Hinojosa-Lopez to the facts of this case, we conclude
that Hernandez’s Colorado drug conviction is a “drug trafficking
crime” and, therefore, an “aggravated felony” within the meaning of
the applicable statutes because (1) Hernandez’s heroin possession
offense is clearly punishable under the Controlled Substances Act,
see 21 U.S.C. § 844(a); 21 U.S.C. § 812(c), Schedule I (b)(10); and
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(2) as noted above, possession of heroin is a class three felony
under Colorado law.
In sum, based on our interpretation of the relevant statutes,
we believe Congress intended that state drug convictions such as
Hernandez’s be included in the definition of “aggravated felony”
and that aliens in Hernandez’s situation be expeditiously removed
pursuant to section 1228. Therefore, we cannot say that
Hernandez’s removal through expedited administrative proceedings
constitutes “a denial of justice” or was otherwise unfair.
C
Hernandez, however, has raised two arguments that must be
addressed.
First, Hernandez suggests that the fundamental unfairness
arose when the INS agents failed to follow Board of Immigration
Appeals (“BIA”) precedents interpreting the “aggravated felony”
statutes. The BIA has interpreted the relevant language from
section 924(c) -- “any felony punishable under the Controlled
Substances Act” -- to mean that a drug offense must be punishable
as a felony under the provisions of the Controlled Substances Act
in order to qualify as an aggravated felony. See In re L-G-, 1995
WL 582051 (BIA)(“A federal, not a state, definition applies to
determine whether or not a state drug offense is a ‘felony’ within
the meaning of 18 U.S.C. § 924(c)(2), and therefore is an
‘aggravated felony’ under section 101(a)(43) of the Act.”). If the
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INS officials had properly applied BIA precedent at the time they
removed Hernandez, see 8 C.F.R. § 3.1(g), they would have
determined that Hernandez’s Colorado drug conviction for simple
possession of a small amount of heroin would not have been
considered a felony under analogous provisions of the Controlled
Substances Act, see 21 U.S.C. § 844(a), and they would not have
subjected him to the expedited administrative removal proceedings.2
There can be no doubt that the INS officials who conducted the
removal proceeding did not follow BIA precedent. However, if we
were reviewing Hernandez’s removal order on direct appeal, and if
the issue of statutory interpretation were properly preserved for
review, we would hold that the BIA’s interpretation of section
924(c) is plainly incorrect and that Hernandez was an aggravated
felon. We see no reason why the procedural posture of this case
2
If a circuit court’s interpretation of “aggravated felony” is
different from the BIA’s interpretation, the INS is bound by the
decisions of the circuit court in removal proceedings “arising in”
that circuit. In re L-G, 1995 WL 582051 (BIA). Consequently, the
BIA’s interpretation should have been applied in Hernandez’s case
unless the decisions of the Tenth Circuit (the circuit in which the
removal proceeding arose) had dictated otherwise. At the time of
Hernandez’s removal, the Tenth Circuit (like the Fifth) had held
that a drug conviction is an aggravated felony if the offense was
punishable under federal drug laws and it was considered a felony
under either state or federal law. See Cabrera-Sosa, 81 F.3d at
1000. However, Cabrera-Sosa involved the application of the
Sentencing Guidelines, and the BIA insists that the interpretation
of section 924(c) depends upon whether “aggravated felony” is being
applied in sentencing or in the immigration context. In re K-V-D-,
1999 WL 1186808 (BIA). Thus, the INS agents were not bound to
follow Cabrera-Sosa’s interpretation of “aggravated felony” in
Hernandez’s case. As will be discussed below, we believe the BIA’s
distinction between sentencing and immigration cases is incorrect.
8
requires us to hold that it was fundamentally unfair to treat
Hernandez as an aggravated felon because he should have the benefit
of an agency’s erroneous interpretation of applicable law.3
Second, Hernandez argues that Hinojosa-Lopez and the other
circuits’ decisions interpreting section 924(c) are not relevant
here because they arose under the Sentencing Guidelines. The BIA’s
current rule is that section 924(c) must be interpreted differently
in immigration cases. See In re K-V-D-, 1999 WL 1186808 (BIA).
Only the Second Circuit has addressed this contention, and it
agreed with the BIA. See United States v. Pornes-Garcia, 171 F.3d
142, 147 (2d Cir.), cert. denied, 120 S.Ct. 191 (1999); Aguirre v.
INS, 79 F.3d 315, 317 (2d Cir. 1996).
We fail to see the validity of interpreting this statute
differently based on this distinction between sentencing and
immigration cases; it is, after all, the same words of the same
phrase from the same statute that is being interpreted in each
3
Because the question presented by this appeal relates only to
the fundamental fairness of the proceeding, we need not consider
Hernandez’s argument that we must defer to the BIA’s interpretation
of these general criminal statutes. Cf. Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837, 842-43 & n.9, 104 S.Ct.
2778, 2781-82, 81 L.Ed.2d 694 (1984)(citations omitted)(“If the
intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress. . . . The judiciary is the final
authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear
congressional intent. If a court, employing traditional tools of
statutory construction, ascertains that Congress had an intention
on the precise question at issue, that intention is the law and
must be given effect.”).
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instance. Indeed, the BIA and Second Circuit decisions are
predicated less on their reading of the statutory language than on
the perceived need for a uniform, substantive standard -- at least
in the deportation context -- for determining whether a drug
offense qualifies as an “aggravated felony.” But this argument for
uniformity is not altogether persuasive inasmuch as it creates a
dichotomy -- not uniformity -- between the BIA’s application of
section 924(c) in removal proceedings and the federal courts’
application of section 924(c) in sentencing proceedings, even
though both proceedings serve a parallel purpose of imposing
greater consequences for serious drug offenses.
More important to our decision, however, is that the statutory
language is clear -- and is the same -- whether applied in
sentencing or immigration cases. We agree that the plain language
of the statutes “indicate[s] that Congress made a deliberate policy
decision to include as an ‘aggravated felony’ a drug crime that is
a felony under state law but only a misdemeanor under the
[Controlled Substances Act],” Briones-Mata, 116 F.3d at 310, and
that the lack of a uniform substantive test for determining which
drug offenses qualify as “aggravated felonies” “is the consequence
of a deliberate policy choice by Congress” that the BIA and the
courts cannot disregard. Restrepo-Aguilar, 74 F.3d at 366. We are
therefore unpersuaded by the BIA’s and Second Circuit’s approach to
interpreting the identical statutory term differently depending
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upon whether the case involves sentencing or immigration.
III
Although we recognize that the INS officials may have made
mistakes under BIA rulings in conducting Hernandez’s removal
proceedings, we cannot ignore the fact that the relevant statutes
-- when properly interpreted -- express Congress’s intent that
aliens with drug convictions that are felonies under state law
should be removed under expedited administrative proceedings.
Under these circumstances, we hold that the earlier removal
proceeding was not “fundamentally unfair” and that the indictment
for unlawful reentry should not be dismissed as a violation of due
process of law. The judgment of the district court is therefore
A F F I R M E D .
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