United States v. Adame-Orozco

Filing 1018434676

[9768896] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Hartz, Baldock, and Gorsuch (authoring judge). Mandate to issue.

United States v. Adame-Orozco

Case: 09-3296

Document: 01018434676

FILED Date Filed: U n i t e d States Court 1 Appeals 06/04/2010 Page: of T e n t h Circuit

Doc. 1018434676

J u n e 4, 2010
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

U N I T E D STATES OF AMERICA, Plaintiff-Appellee, v. J U A N F. ADAME-OROZCO, Defendant-Appellant. N o . 09-3296

A p p e a l from the United States District Court f o r the District of Kansas ( D . C . No. 6:09-CR-10046-WEB-1) J o h n K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for D e f e n d a n t - A p p e l l a n t Juan Adame-Orozco. B r e n t I. Anderson, Assistant United States Attorney (Lanny D. Welch, United S t a t e s Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee U n i t e d States of America. B e f o r e HARTZ, BALDOCK, and GORSUCH, Circuit Judges. G O R S U C H , Circuit Judge. J u a n Adame-Orozco appeals his conviction for illegally reentering the U n i t e d States after a prior deportation. The conviction should be overturned, he s u b mi t s , because the order that resulted in his deportation from the country was

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i t s e l f invalid. And this is so, in his view, because the order was premised on state c o u r t felony drug convictions that he didn't have a sufficient opportunity to attack i n collateral proceedings before he was removed from the country. In pursuing t h i s line of argument, Mr. Adame-Orozco seeks to rely on 8 U.S.C. § 1326(d), w h i c h provides a defendant in an illegal reentry case with a means of defense if h e can show, among other things, that the underlying "deportation proceedings at w h i c h [his deportation] order was issued improperly deprived [him] of the o p p o r t u n i t y of judicial review." Id. § 1326(d)(2). T h e problem is that Mr. Adame-Orozco was never improperly deprived of t h e opportunity for judicial review in his federal deportation proceedings. He was a b l e to, and did, appeal his deportation order to the Board of Immigration Appeals ( " B I A " ) . And he was free, in turn, to appeal the BIA's ruling to a federal court. Section 1326(d) requires no more. Contrary to Mr. Adame-Orozco's argument, t h e statute doesn't guarantee judicial review in state court of his underlying state f e l o n y convictions. Neither does it require, as he suggests, a stay of federal d e p o r t a t i o n proceedings so long as some appellate or collateral review of his state f e l o n y convictions happens to be ongoing. The plain language and history of § 1326(d) preclude such a view and require us to affirm the judgment of the d i s t r i c t court.

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I I n approaching Mr. Adame-Orozco's appeal, we begin with the facts u n d e r l y i n g his original deportation (Section I.A), and those more immediately r e l e v a n t to his current illegal reentry prosecution (Section I.B), before proceeding t o analyze the arguments he presents for our review (Section II). A S o me t i me in the 1980s, Mr. Adame-Orozco entered the United States w i t h o u t an inspection by or approval from federal immigration officials. By 1 9 9 0 , however, Mr. Adame-Orozco had won lawful permanent resident status, and h e eventually settled in Kansas. While in this country, he amassed convictions f o r "numerous" crimes. See Criminal Complaint, R. Vol. I at 9. Most pertinent f o r our purposes, in April 2005 Mr. Adame-Orozco added to this record by p l e a d i n g guilty in Kansas state court to two counts of selling cocaine in violation o f state law. W h e n federal officials received word of these latest convictions, they i n i t i a t e d deportation proceedings. 1 In their view, Mr. Adame-Orozco's We recognize that the Illegal Immigration Reform and Responsibility Act o f 1996 replaced "deportation" with "removal" as the preferred term of art to r e f e r to the denial or revocation of admission to the United States. See Zhong v. U . S . Dep't of Justice, 480 F.3d 104, 108 n.3 (2d Cir. 2007). We use the term " d e p o r t a t i o n " in this opinion, however, to track the language of 8 U.S.C. § 1326, t h e statute that's the primary focus of our attention here. Courts throughout the n a t i o n often use the terms "removal" and "deportation" interchangeably, see, e.g., Z h o n g , 480 F.3d at 108 n.3, and we don't mean to suggest any substantive (continued...)
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c o n v i c t i o n s constituted "aggravated felonies" sufficient to warrant deportation u n d e r 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1101(a)(43)(B). 2 On January 18, 2006, M r . Adame-Orozco appeared before an immigration judge ("IJ"). Because the IJ a g r e e d that the convictions involved "aggravated felonies," he explained that he d i d n ' t have any discretion to allow Mr. Adame-Orozco to remain in the United S t a t e s . The IJ informed Mr. Adame-Orozco that perhaps his best hope for staying i n the country was if he could convince a state court to undo his guilty plea to the c o c a i n e 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 s t a t e court. B y the time the deportation proceedings reconvened on February 22, h o w e v e r , little had changed. Mr. Adame-Orozco hadn't taken any steps to reopen h i s state court conviction until that same day, when he finally filed a motion b e f o r e the state trial court to withdraw his guilty plea. In those papers, Mr. A d a me - O r o z c o argued that his guilty plea was involuntary and invalid because, (...continued) d i f f e r e n c e between them for purposes of § 1326. See United States v. PenaR e n o v a t o , 168 F.3d 163, 165 (5th Cir. 1999) ("[R]emoval and deportation are the s a me proceeding for purposes of § 1326 . . . ."). Section 1227(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of a n aggravated felony at any time after admission is deportable." Section 1 1 0 1 ( a ) ( 4 3 ) ( b ) defines the term "aggravated felony" to include "illicit trafficking i n a controlled substance (as defined in section 802 of title 21), including a drug t r a f f i c k i n g crime (as defined in section 924(c) of title 18)." Mr. Adame-Orozco c o n c e d e s that he qualifies as an "alien" for the purposes of § 1227.
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a mo n g other things, his lawyer had rendered constitutionally ineffective a s s i s t a n c e by failing to advise him of the immigration consequences associated w i t h being convicted of the charges against him. Unsurprisingly, the state trial c o u r t hadn't yet ruled on Mr. Adame-Orozco's motion. B e f o r e the IJ on February 22, Mr. Adame-Orozco's immigration lawyer d i d n ' t dispute that his drug convictions constituted "aggravated felonies" for p u r p o s e of the immigration laws. Instead, counsel argued against deportation by p a r r o t i n g Mr. Adame-Orozco's state court request for collateral relief, submitting t h a t the state court guilty plea was invalid by dint of the ineffective assistance p r o v i d e d by trial counsel in the criminal proceedings. To this, the IJ replied that "post-conviction relief is collateral to a removal h e a r i n g . " R. Vol. I at 72. Unless and until Mr. Adame-Orozco's state court c o n v i c t i o n s were undone by authorized state courts, he explained, deportation p r o c e e d i n g s could and would continue. At the hearing's end, the IJ found that M r . Adame-Orozco was, in fact, subject to deportation by virtue of his stillo p e r a t i v e state convictions. The IJ then advised Mr. Adame-Orozco that he could a p p e a l this deportation order to the BIA, and that any deportation wouldn't h a p p e n until the BIA ruled. In the meantime, the IJ offered, Mr. Adame-Orozco mi g h t continue to pursue his collateral effort in state court to undo his convictions.

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T h e BIA and the Kansas state trial court issued their rulings on the same d a y approximately three months later. The BIA denied Mr. Adame-Orozco's i mmi g r a t i o n appeal, finding no defect in the IJ's deportation order. And the state t r i a l court denied Mr. Adame-Orozco's motion to withdraw his state court guilty p l e a . The state court held that Mr. Adame-Orozco knowingly and voluntarily e n t e r e d his guilty plea, and that Kansas law didn't 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 didn't choose to p u r s u e an appeal of the BIA's decision in federal court. Ten days after his d e p o r t a t i o n , however, on June 13, 2006, Mr. Adame-Orozco did file a notice of a p p e a l in state court announcing his intention to challenge that court's rejection o f his collateral attack on his drug convictions. After that filing, though, Mr. A d a me - O r o z c o apparently allowed his appeal to fall dormant.

In reaching this latter holding, the trial court relied on the Kansas S u p r e me Court's decision in State v. Muriithi, 46 P.3d 1145 (Kan. 2002). More r e c e n t l y , though, the United States Supreme Court has held that an attorney's f a i l u r e to advise a non-citizen defendant of the immigration consequences of p l e a d i n g guilty to a crime can, in certain circumstances, constitute ineffective a s s i s t a n c e of counsel under the Sixth Amendment. See Padilla v. Kentucky, 130 S . Ct. 1473, 1480-84 (2010). This case doesn't call upon us to apply or interpret Padilla, however. Mr. Adame-Orozco appeals only a question about § 1326(d)'s me a n i n g , not Padilla's import. As we explain below, we hold that § 1326(d) p e r mi t s a court in an illegal reentry case to reexamine the validity of the alien's deportation proceedings -- just not a conviction that might've led to those p r o c e e d i n g s . Nothing in this holding precludes Mr. Adame-Orozco from a t t e mp t i n g a collateral attack on his underlying state convictions using Padilla (or a n y other line of argument) in some other, appropriate venue.
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B S o things went until April 2009 when federal authorities discovered Mr. A d a me - O r o z c o again living in Kansas. Another indictment followed, this time c h a r g i n g Mr. Adame-Orozco with illegally reentering the country subsequent to a c o n v i c t i o n for an aggravated felony. See 8 U.S.C. §§ 1326(a) and 1326(b)(2). Mr. Adame-Orozco replied with a motion to dismiss the indictment. Once a g a i n , he did not dispute that his Kansas drug convictions qualified as " a g g r a v a t e d felonies" for purposes of the immigration laws. Rather, he argued t h a t the earlier deportation proceedings against him were deficient under 8 U.S.C. § 1326(d)(2) because they didn't afford him sufficient time before deportation to p u r s u e his collateral attack on those felony convictions in state court. After the federal district court considered and eventually denied the motion, M r . 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 d i s mi s s , a right he now pursues before us. At the same time, Mr. Adame-Orozco s o u g h t to breathe new life into his state court appeal challenging the validity of h i s state guilty plea. In late 2009, he filed a motion to reopen the appeal and, as b e s t we can tell from the materials submitted to us, that appeal is under c o n s i d e r a t i o n by the Kansas court of appeals. 4 To provide details about his ongoing state court efforts, Mr. AdameO r o z c o has twice moved to supplement the record in this appeal. We grant the (continued...)
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II A prosecution for illegal reentry under § 1326(a) generally requires the g o v e r n me n t to prove two things: (1) that the alien "has been denied admission, e x c l u d e d , deported, or removed or has departed the United States while an order o f exclusion, deportation, or removal is outstanding"; and (2) that the alien t h e r e a f t e r has "enter[ed], attempt[ed] to enter, or is at any time found in, the U n i t e d States." 5 In turn, § 1326(b)(2) provides that those convicted under § 1326(a) "whose removal was subsequent to a conviction for commission of an a g g r a v a t e d felony" may receive a higher sentence. 6 I n seeking to satisfy the first element of § 1326(a), the government may, as i t did here, produce evidence that the alien was deported while a deportation order (...continued) mo t i o n s . Certain exceptions to this rule, not pertinent to our case, can be found in § 1326(a)(2). In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the S u p r e me Court held that § 1326(b)(2), rather than constituting a distinct element o r separate offense the jury must find, supplies the district judge with a potential s e n t e n c i n g enhancement to a § 1326(a) conviction. Whether and to what degree A l m e n d a r e z - T o r r e s remains good law after Blakely v. Washington, 542 U.S. 296 ( 2 0 0 4 ) , United States v. Booker, 543 U.S. 220 (2005), and their progeny is not b e f o r e us. Cf. Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., c o n c u r r i n g in part and concurring in the judgment) (suggesting that AlmendarezT o r r e s "has been eroded by this Court's subsequent Sixth Amendment j u r i s p r u d e n c e , and a majority of the Court now recognizes that [it] was wrongly d e c i d e d " ) . Mr. Adame-Orozco has never raised that question in this case; to the c o n t r a r y , he has conceded throughout all the relevant proceedings that his state c o u r t convictions satisfy § 1326(b)(2)'s requirements.
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w a s outstanding against him. But what if the defendant-alien seeks to argue that t h e deportation order was itself unlawful? May he do so in defense of an illegal r e e n t r y charge, essentially launching a collateral attack on an earlier deportation p r o c e e d i n g long after the time for appealing that order has passed and the order h a s become final? S e c t i o n 1326(d) addresses these questions. It permits the defendant-alien t h e chance to mount a collateral attack against a prior deportation order in r e s p o n s e to an illegal reentry prosecution -- but only in certain circumstances. A d e f e n d a n t - a l i e n may challenge the legality of a deportation order if, but only if, h e can show that: (1) (2) the alien exhausted any administrative remedies that may have b e e n available to seek relief against the order; the deportation proceedings at which the order was issued i mp r o p e r l y deprived the alien of the opportunity for judicial r e v i e w ; and the entry of the order was fundamentally unfair.

(3)

8 U.S.C. § 1326(d); see also United States v. Rivera-Nevarez, 418 F.3d 1104, 1 1 0 7 - 0 8 (10th Cir. 2005). Because a final deportation order enjoys a presumption o f regularity, once the government shows that the alien was deported while such a n order was outstanding, the burden shifts to the defendant-alien, and it is he w h o must prove each of § 1326(d)'s elements to overcome the presumed legality

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o f the earlier deportation order. See United States v. Arevalo-Tavares, 210 F.3d 1 1 9 8 , 1200 (10th Cir. 2000) (per curiam). Mr. Adame-Orozco suggests to us, as he did to the district court, that he c a n meet this burden. He maintains that he exhausted all administrative relief a v a i l a b l e to him before the IJ and BIA. See 8 U.S.C. § 1326(d)(1). He submits t h a t his deportation proceedings failed to provide him an opportunity for judicial r e v i e w because they failed to afford him enough time to pursue state court efforts t o undo his aggravated felony convictions. Id. § 1326(d)(2). And this, he says, r e n d e r e d his deportation proceedings fundamentally unfair. Id. § 1326(d)(3). Because Mr. Adame-Orozco's argument ultimately presents us with a p u r e l y legal question about the proper construction of § 1326(d), we review it de n o v o . See United States v. Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004). In d o i n g so, we hold that his challenge fails at the second step of § 1326(d) because h i s federal deportation proceedings did not "improperly deprive[] [him] of the o p p o r t u n i t y for judicial review." 8 U.S.C. § 1326(d)(2). We reach this holding in l i g h t of the statute's language and in consonance with its history. 7 In coming to this conclusion, we do not mean to imply that Mr. AdameO r o z c o has satisfied the requirements of §§ 1326(d)(1) and (d)(3). It is unclear w i t h respect to subsection (d)(1), for example, whether Mr. Adame-Orozco e x h a u s t e d his available administrative remedies. While the parties before us all c o n c e d e that he did appeal the IJ's deportation order to the BIA, Mr. AdameO r o z c o does not allege that he sought a stay of deportation until he could finish h i s state court collateral attack on his drug convictions -- the same remedy he n o w asks us to fault the IJ and BIA for failing to supply. But the government has (continued...)
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B y its plain terms, § 1326(d)(2) provides that an alien prosecuted for illegal r e e n t r y "may not challenge the validity of the deportation order" unless the alien d e mo n s t r a t e s that "the deportation proceedings at which the order was issued i mp r o p e r l y deprived the alien of the opportunity for judicial review." 8 U.S.C. § 1326(d) (emphasis added). In so doing, the statute imposes two significant l i mi t a t i o n s . First, the defendant may attack the prior deportation only by r e f e r e n c e to the "proceedings at which the order was issued." Second, the d e f e n d a n t must limit this attack to the argument that those proceedings deprived h i m of judicial review of the deportation order itself. Unless the defendant's c h a l l e n g e fits within these narrow constraints, it isn't cognizable under § 1326(d)(2). Notably, the statute does not speak of, let alone specify, any right in an i l l e g a l reentry proceeding to pursue a collateral attack on any other orders, j u d g me n t s , or proceedings. And it supplies no stay of deportation while appellate o r habeas proceedings may be ongoing in other matters. This doesn't mean, of c o u r s e , that an alien lacks the opportunity to appeal or collaterally attack an a g g r a v a t e d felony conviction. Of course not. It merely means that he must do so i n the traditional way, pursuant to state and federal laws governing criminal a p p e a l s and collateral review -- and not in an illegal reentry prosecution. (...continued) d e c i d e d not to contest this issue, see Answer Br. at 17-18, and we need not pursue i t further in light of our holding under subsection (d)(2).
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T h e r e can be no genuine dispute that Mr. Adame-Orozco received what p r o c e s s § 1326(d)(2) promises. He freely admits that he was able to (and did) a p p e a l the IJ's deportation order to the BIA, and he identifies no impediment to h i s ability to appeal the BIA's decision to a federal court. Where, as here, the s t a t u t e ' s language is plain and plainly satisfied, "the sole function of the courts" c a n only be "to enforce it according to its terms." United States v. Ron Pair E n t e r s . , Inc., 489 U.S. 235, 241 (1989) (quotation marks omitted); see also U n i t e d States v. Saenz-Gomez, 472 F.3d 791, 793 (10th Cir. 2007) ("If the s t a t u t o r y language is clear, our analysis ordinarily ends." (quotation marks o mi t t e d ) ) . S t i l l , the statutory language tells us even more. The absence of any link b e t w e e n an alien's procedurally proper deportation proceedings and his ongoing c h a l l e n g e to an aggravated felony conviction is reinforced by the plain language o f two more provisions: 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(48)(A). Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien who is "convicted of an aggravated f e l o n y at any time after admission is deportable." And 8 U.S.C. § 1101(a)(48)(A), in turn, defines a "conviction" to mean, among other things, "a f o r ma l judgment of guilt." From this, it follows that an alien is lawfully d e p o r t a b l e as soon as a formal judgment of guilt is entered by a trial court. Indeed, Congress adopted its § 1101(a)(48)(A) definition of "conviction" in 1996 s p e c i f i c a l l y to supplant a prior BIA interpretation that had required deportation to
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w a i t until direct appellate review (though never collateral review) of the c o n v i c t i o n was exhausted or waived. See Moosa v. INS, 171 F.3d 994, 1000-02 ( 5 t h Cir. 1999). Sections 1227 and 1101 confirm, then, that while the alien may have the r i g h t to pursue appellate or collateral relief for an aggravated felony conviction u n d e r various provisions of state and federal law, the government need not wait u n t i l all these avenues are exhausted before deporting him. We emphasized just t h i s point in Saenz-Gomez, where we held that a defendant whose aggravated f e l o n y conviction was entered by a trial court was lawfully deportable nine days l a t e r , even though he had not yet had a chance to appeal -- let alone collaterally a t t a c k -- his conviction. See 472 F.3d at 793-94 (rejecting defendant's argument t h a t "a judgment does not become a conviction within the meaning of 8 U.S.C. § 1326(b) . . . until the direct appeal process has been exhausted or waived"). N e i t h e r can we conceive any reasonable way to reconcile Congress's e x p r e s s commands in §§ 1227 and 1101 with Mr. Adame-Orozco's proposed r e a d i n g of § 1326(d)(2). While §§ 1227 and 1101 authorize deportation i mme d i a t e l y after a trial court's judgment of guilt, under Mr. Adame-Orozco's v i e w of § 1326(d)(2) the BIA would have to postpone that deportation (at least for t h o s e it prophesies will later be tried for illegal reentry) until after an aggravated f e l o n y conviction can be tested not just through direct appeal but also through c o l l a t e r a l attack. As a formal matter, the government wouldn't have to wait to
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d e p o r t convicted aliens until after their convictions had survived direct and c o l l a t e r a l review. But as a practical matter, Mr. Adame-Orozco would have the g o v e r n me n t do exactly that -- at least for those who might be able to mount a me r i t o r i o u s challenge on their underlying criminal convictions -- if it wanted to ma i n t a i n the flexibility to prosecute deported aliens who later reentered the c o u n t r y illegally. In a sort of statutory sleight of hand, then, what §§ 1227 and 1 1 0 1 give, Mr. Adame-Orozco's reading of § 1326(d)(2) would implicitly but s i g n i f i c a n t l y take away. While Mr. Adame-Orozco urges this result with vigor, h e offers no rational explanation for such an unlikely interpretation of the s t a t u t e ' s terms. 8 If, as Mr. Adame-Orozco seems to imagine, Congress had essentially w i s h e d to take the step of affording aliens convicted of aggravated felonies with a n automatic stay of deportation pending the completion of appellate and c o l l a t e r a l review of their convictions, it knew well how to do so explicitly, rather t h a n leave the job to judicial implication. Congress, after all, has expressly p r o v i d e d for stays of deportation elsewhere in the immigration laws. See, e.g., The implausibility of Mr. Adame-Orozco's view of the statute may be f u r t h e r suggested by the fact that, since the enactment of § 1101(a)(48)(A)'s d e f i n i t i o n , the BIA has lawfully interpreted it to allow deportation of convicted a l i e n s "notwithstanding a subsequent state action purporting to erase all evidence o f the original determination of guilt through a rehabilitative procedure." In re R o l d a n - S a n t o y o , 22 I. & N. Dec. 512, 523 (BIA 1999) (en banc), order vacated s u b nom. on other grounds by Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2 0 0 0 ) ; see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005) ( u p h o l d i n g BIA's interpretation).
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8 U.S.C. § 1231(c)(2)(A)(i)-(ii). The fact that it did not do likewise here is a t e x t u a l point of comparison we are not entitled to ignore lightly. Cf. Custis v. U n i t e d States, 511 U.S. 485, 492 (1994) ("[W]here Congress includes particular l a n g u a g e in one section of a statute but omits it in another section of the same A c t , it is generally presumed that Congress acts intentionally and purposely in the d i s p a r a t e inclusion or exclusion." (citation and quotation marks omitted)). Congress, after all, does not usually "hide [such] elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001). T h e n there is also the matter of the statute's history. Prior to the enactment o f § 1326(d), the validity of the BIA's administrative deportation order was not e s s e n t i a l to a conviction under § 1326(a). See United States v. Mendoza-Lopez, 4 8 1 U.S. 828, 833-37 (1987). All that was required, at least in certain circuits, w a s an administrative deportation order, a deportation, and a subsequent reentry i n defiance of that deportation order. See id. at 833 n.6 (detailing circuit split). The Supreme Court held, however, that this arrangement violated the C o n s t i t u t i o n ' s due process guarantee. Id. at 837. The Court explained that the d e f e n d a n t - a l i e n in a § 1326(a) prosecution cannot be criminally sanctioned for d e f y i n g a deportation order if he was never afforded any means to obtain judicial r e v i e w of that deportation order. Id. at 837-39. Section 1326(d) was enacted in response to Mendoza-Lopez and in an effort t o "incorporate[] [the Court's judgment] into statutory law." Ira J. Kurzban,
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I m m i g r a t i o n Law Sourcebook 186 (10th ed. 2006); see also United States v. W i t t g e n s t e i n , 163 F.3d 1164, 1170 (10th Cir. 1998). The statute's genesis was t h u s all about ensuring some form of judicial review of the administrative d e p o r t a t i o n proceedings -- not the underlying criminal convictions for which o t h e r avenues of judicial review had already long existed. When, as here, a s t a t u t e "is obviously transplanted from another legal source, whether the common l a w or other legislation, it brings the old soil with it." Felix Frankfurter, Some R e f l e c t i o n s on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). And i n this case, the lines in the soil contain no sign of the interpretive path Mr. A d a me - O r o z c o would have us take. See Mendoza-Lopez, 481 U.S. at 839 n.17 ( h o l d i n g that "permitting collateral challenge to the validity of deportation orders i n proceedings under § 1326 does not create an opportunity for aliens to delay d e p o r t a t i o n , since the collateral challenge we recognize today is available only in c r i mi n a l proceedings instituted after reentry"). 9 In response to all the foregoing, Mr. Adame-Orozco seeks to rely on U n i t e d States v. Copeland, 376 F.3d 61 (2d Cir. 2004), which he reads to hold t h a t "a person is deprived of judicial review [under § 1326(d)] when the time i n t e r v a l between entry of the final deportation order and physical deportation is t o o brief to obtain judicial review." Opening Br. at 9. But Copeland is easily d i s t i n g u i s h e d . For one, that case dealt with an IJ who misinformed the alien a b o u t his right to pursue discretionary relief, and it was seemingly, albeit i mp l i c i t l y , premised on a belief that an alien has a constitutional right to be i n f o r me d about such possibilities. See Copeland, 376 F.3d at 64, 68-70. Mr. A d a me - O r o z c o , by comparison, does not allege that the IJ provided him with any mi s i n f o r ma t i o n , so Copeland simply does not speak to his case. For another, u n l i k e the petitioner in Copeland, Mr. Adame-Orozco cannot show prejudice from (continued...)
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Case: 09-3296

Document: 01018434676

Date Filed: 06/04/2010

Page: 17

H a v i n g concluded that § 1326(d)(2) does not bear the promise of an a u t o ma t i c stay of deportation for those convicted of aggravated felonies, the q u e s t i o n remains: What if Mr. Adame-Orozco is, at some future point, successful i n his now-renewed effort to overturn his drug convictions in state court? Does h e have some means available to him to seek recourse? The answer is, of course, t h a t he might seek to petition for habeas relief in the normal course, and "if [he] i s successful, he may then apply for reopening of any federal sentence enhanced b y the state" conviction. Custis, 511 U.S. at 497; see also United States v. G a r c i a , 42 F.3d 573, 581-82 (10th Cir. 1994). What the appropriate outcome of s u c h a habeas application might be we do not now purport to decide. Cf. Custis, 5 1 1 U.S. at 497 ("We express no opinion on the appropriate disposition of such a n application."). For current purposes, it suffices to say that any relief must c o me through that traditional process, and not through § 1326(d). 10 (...continued) t h e loss of judicial review of his deportation order because he doesn't offer any r e a s o n to think the BIA erred in issuing such an order in his case. See United S t a t e s v. Lopez, 445 F.3d 90, 100-01 (2d Cir. 2006). Beyond and in addition to a l l that, this circuit has held that an alien has no constitutional right to be i n f o r me d of avenues of discretionary relief. See United States v. Aguirre-Tello, 3 5 3 F.3d 1199, 1205 (10th Cir. 2004) (en banc); see also Ali v. Ashcroft, 395 F.3d 7 2 2 , 732 (7th Cir. 2005) (no right to discretionary relief); Mejia Rodriguez v. R e n o , 178 F.3d 1139, 1146-47 (11th Cir. 1999) (same); cf. Trench v. INS, 783 F . 2 d 181, 184 (10th Cir. 1986) (holding that due process does not require a l l o w i n g a petitioner to "collaterally attack the legitimacy of [a] state criminal c o n v i c t i o n [ ] in [a] deportation proceeding[]").
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Had Mr. Adame-Orozco remained abroad after his deportation, a BIA (continued...)
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Case: 09-3296

Document: 01018434676

Date Filed: 06/04/2010

Page: 18

*** W e hold that § 1326(d) does not afford a license to bootstrap separate c r i mi n a l proceedings into the process guaranteed to aliens facing deportation. Mr. Adame-Orozco was not improperly deprived of the opportunity for judicial r e v i e w of his federal deportation order within the meaning of § 1326(d)(2) simply b e c a u s e the IJ and BIA declined to stay his deportation until he could complete a c o l l a t e r a l attack on his state court aggravated felony convictions. The judgment o f the district court is Affirmed.

(...continued) r e g u l a t i o n would have precluded him from seeking to reopen and undo his d e p o r t a t i o n proceedings. See Rosillo-Puga v. Holder, 580 F.3d 1147, 1151 (10th C i r . 2009) (quoting 8 C.F.R. § 1003.2(d)). Nonetheless, the Executive can and s o me t i me s may facilitate the return to the United States of aliens "who were r e mo v e d pending judicial review but then prevailed before the courts." Brief for t h e Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No. 08-681) ( c i t i n g 8 U.S.C. § 1182(d)(5)).
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