                                                                       FILED
                                                           United States Court of Appeals
                            UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   FOR THE TENTH CIRCUIT                                         July 11, 2016
                               _________________________________
                                                                                            Elisabeth A. Shumaker
                                                                                                Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                                          No. 15-1292
v.                                                           (D.C. No. 1:14-CR-00258-MSK-DW-1)
                                                                           (D. Colo.)
RAUL A. VARGAS-ORTIZ,

       Defendant - Appellant.
                       _________________________________

                                   ORDER AND JUDGMENT*
                               _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

        Defendant Raul Vargas-Ortiz pleaded guilty to one count of illegal reentry of a

previously deported alien following an aggravated felony conviction. See 8 U.S.C. §

1326(a), (b)(2). Under his plea agreement he reserved his right to appeal the district

court’s denial of his motion to dismiss the indictment on the ground that his previous

deportation proceeding in December 2002 violated due process. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

        Vargas-Ortiz could bring a collateral challenge to his prior deportation order in a

criminal prosecution for illegal reentry only by demonstrating that (1) he “exhausted any


*
 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would
not materially assist in 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. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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 [him] of

the opportunity for judicial review; and (3) the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d). “An underlying order is ‘fundamentally unfair’ if (1) a

defendant’s due process rights were violated by defects in his underlying deportation

proceeding, and (2) he suffered prejudice as a result of the defects.” U.S. v. Alvarado-

Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014). We deny Vargas-Ortiz relief because he

failed to show fundamental unfairness.

       Vargas-Ortiz’s challenge to the fairness of his deportation proceeding concerns the

failure of the immigration judge (IJ) to advise him accurately about the possibility of

obtaining relief from deportation through petitions previously filed by his relatives. We

have held that an IJ does not deny an alien due process by failing to advise him of

discretionary avenues of relief. See U.S. v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.

2004) (en banc). But in any event, Vargas-Ortiz’s prior experiences had made him fully

aware of those possibilities. His status as the immediate relative of a lawfully present

sponsor had been approved by United States Customs and Immigration Service (USCIS)

based on two separate I-130 petitions filed on his behalf, one by his wife and one by his

mother. Five years before the deportation proceeding he filed an I-485 petition for

permanent residency that relied on the approval of his mother’s I-130 petition. USCIS

initially denied this residency petition, but agreed to reopen it in January 2002 at his

request.



                                              2
       Thus,Vargas-Ortiz does not complain of any failure of the IJ to give general

advice. Rather, he focuses on the IJ’s failure to inform him that these possible avenues of

relief were still available. At the time of his removal hearing in December 2002, his

petition for residency was pending and the option to file a second petition based on his

marriage apparently remained open.

       We perceive no denial of due process. The IJ did all he could under the

circumstances to encourage Vargas-Ortiz to check on the status of his prior petitions. At

the deportation hearing the IJ raised the petition filed by Vargas-Ortiz’s wife as a possible

avenue of relief, but Vargas-Ortiz informed him that it had been denied. When counsel

for the United States was unable to confirm the denial, the IJ asked if Vargas-Ortiz had

filed a petition earlier that year. Vargas-Ortiz again stated that he had been told that

“everything was denied.” R., Vol. 1 at 303. The IJ then asked if he wanted “to wait and

get the uh permanent file so we can study and see exactly what happened in that case.”

R., Vol. 1 at 303. Vargas-Ortiz declined and twice more told the IJ that he knew the

petition was denied. Finally, the IJ said, “Alright. Well I’ll go based on what you say.”

R., Vol. 1 at 304.

       There is no denial of due process where the record demonstrates that Vargas-Ortiz

was aware of possible avenues of relief, he was given the opportunity to investigate

whether any might still be available to him, and he knowingly and repeatedly declined

the offer. The collateral challenge to the indictment must be dismissed because




                                              3
Vargas-Ortiz has not met the requirements of § 1326(d).

      We AFFIRM the judgment of the district court.

                                           Entered for the Court


                                           Harris L Hartz
                                           Circuit Judge




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