                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            JAN 12 2004
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellant,                       No. 03-3115
          v.                                   (D.C. No. 02-CR-10038-01-MLB)
 RAYMUNDO GUADALUPE                                       (D. Kansas)
 VILLARREAL-VALDEZ,

               Defendant-Appellant.


                           ORDER AND JUDGMENT             *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Defendant Raymundo Villarreal-Valdez appeals following a conditional

plea of guilty to illegal reentry into the United States in violation of 8 U.S.C.

§ 1326. He challenges the district court’s decision overruling his motion to

dismiss the indictment on the grounds that he qualifies as a United States citizen



      *
        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.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
and that he was denied due process at the immigration hearing that resulted in his

deportation.

        Defendant was born in Mexico in 1975. His father was a Mexican national,

but on June 8, 1997, his mother and grandmother were recognized as

United States citizens from birth. Beginning in 1988 Defendant resided primarily

in the United States. On June 8, 1992, Defendant was issued a Resident Alien or

“green” card allowing him to be lawfully present in the United States until June 8,

2002.

        In 1996 Defendant pleaded guilty to a Colorado felony marijuana offense

and served a short prison sentence. When he was released, he was given an

immigration hearing, at which he was not represented by counsel. At the hearing

his permission to remain lawfully in the United States was revoked. He waived

appeal and was deported on October 18, 1996.

        The district court found that Defendant was not informed that he could

apply to stay in the United States, but held that he nevertheless was not denied

due process. The district court likewise refused to dismiss the indictment on the

ground that Defendant is a United States citizen. Defendant entered a conditional

guilty plea to illegal reentry and now appeals the district court’s decision. We

affirm.




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I.    Derivative Citizenship

      “To obtain a conviction under 8 U.S.C. § 1326 for illegal reentry after

deportation, the government must prove the defendant: (1) is an alien; (2) was

previously arrested and deported; (3) was thereafter found in the United States;

and (4) lacked the permission of the Attorney General.” United States v. Anaya,

117 F.3d 447, 449 (10th Cir. 1997). Defendant contends that the district court

erred in failing to dismiss the indictment for illegal reentry because he is

derivatively eligible for United States citizenship under 8 U.S.C. § 1401. The

district court’s decision not to dismiss the indictment is a matter of law that we

review de novo. See Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189

(10th Cir. 1999).

      At the time of Defendant’s birth § 1401 provided:

      [A] person born outside the geographical limits of the United States
      and its outlying possessions of parents one of whom is an alien, and
      the other a citizen of the United States who, prior to the birth of such
      person, was physically present in the United States or its outlying
      possessions for a period or periods totaling not less than ten years, at
      least five of which were after attaining the age of fourteen years

is a national and citizen of the United States. 8 U.S.C. § 1401(a)(7) (1952). The

district court held that “[s]ection 1401(a)(7), which was in effect at the time of

defendant’s birth, could not have conferred citizenship on defendant because

there is no evidence that defendant’s mother, even though later ‘deemed’ to have

been a U.S. citizen at her birth, was physically present in the United States prior

                                         -3-
to defendant’s birth for a period or periods totaling ten years, at least five of

which were after she attained the age of 14.” Dist. Ct. Memorandum & Order, at

5. We agree.

      Defendant “concedes there is no evidence in the record to establish the

residency requirements of his mother in the United States prior to his birth

pursuant to 8 U.S.C. §1401(g).” Aplt. Br. at 8-9. His claim of derivative

citizenship is consequently not based on the plain language of § 1401. Rather, he

argues that “[t]he residency requirement . . . is an unfair application of the statute

on a person who could not legally establish her prior residency . . . because at that

time she was deemed illegal, and is only later recognized as a U.S. citizen from

her birth.” Id. at 9.

      Assuming, without deciding, that because Defendant’s mother is considered

a citizen from birth, she satisfied the citizenship requirement at the time of

Defendant’s birth, we see no reason why she would be incapable of meeting the

residency requirements. See § 1401(a)(7) (1952). Defendant’s mother could have

been legally present in the United States for the requisite period of time even

though she had not yet been deemed a citizen. We therefore fail to see how

applying the residency requirements of § 1401 in these circumstances is unfair.

      In any event, “Congress unquestionably possesses the authority to create

standards for the attainment of United States citizenship by foreignborn persons.”


                                           -4-
Gonzalez de Lara v. United States, 439 F.2d 1316, 1317 (5th Cir. 1971); see also

U.S. Const. art. I, § 8, cl. 4; Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972)

(“plenary congressional power to make policies and rules for exclusion of aliens

has long been firmly established”). We have no authority to construe away the

unambiguous residency requirements of § 1401. See Montana v. Kennedy, 366

U.S. 308, 314 (1961). Accordingly, we conclude that Defendant cannot claim

derivative citizenship through his mother.

II.    Citizenship Under 8 U.S.C. § 1431

       Defendant next asserts that he automatically became a citizen by operation

of 8 U.S.C. § 1431. But we decline to address this issue on appeal because

Defendant did not raise it in the district court. See United States v. Mora, 293

F.3d 1213, 1218 (10th Cir. 2002).

III.   Due Process

       Defendant also claims that the district court erred in failing to dismiss the

indictment on the ground that his due process rights were violated at the

underlying deportation hearing because he was not advised of his right to apply to

stay in the United States.

       “A defendant may collaterally challenge a deportation hearing in an 8

U.S.C. § 1326 prosecution if the defendant can show that the deportation hearing

was fundamentally unfair and deprived the alien of the right to judicial review.”


                                          -5-
United States v. Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994); see also

United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). Furthermore, this

court has held that an immigration judge, when aware of information indicating

that an individual may be eligible for relief from deportation, is required to

inform that individual of his apparent eligibility for relief. United States v.

Aguirre-Tello, 324 F.3d 1181, 1191 (10th Cir. 2003). “To succeed in this

collateral challenge, however, defendant . . . must show that he was prejudiced

and that he was thereby deprived of his right of direct appeal.” Id. at 1192. To

demonstrate prejudice, Defendant must show that “there is a reasonable

probability that [he] would have obtained relief from deportation” if he had been

informed of his right to seek relief. Id. at 1193-94.

      Relying on INS v. St. Cyr, 533 U.S. 289 (2001), Defendant contends that he

would have been eligible for relief at the time of his deportation under laws that

were in effect at the time of the immigration hearing. In St. Cyr the Supreme

Court held that the repeal of § 212(c) of the Immigration and Nationality Act

(INA) (allowing for a broad discretionary waiver of deportation by the Attorney

General) would not be applied retroactively so as to foreclose § 212(c) relief for

aliens whose convictions were obtained through plea agreements prior to the

repeal of § 212(c). Id. at 326. Although Defendant essentially concedes (as he

must) that he would not have been eligible for § 212(c) relief due to his inability


                                          -6-
to satisfy the residency requirements of that section, he asserts that he would have

been eligible for relief under another since-repealed statute which was in effect at

the time he pleaded guilty. Specifically, he claims that he would have been

eligible for relief under provisions of § 244 of the INA, formerly codified at 8

U.S.C. §1254(a) and (e). Defendant also claims that he qualified for relief under

§ 212(h) of the INA, codified at 8 U.S.C. § 1182(h).

      The district court ruled that although Defendant had not been informed of

his eligibility to seek relief from deportation, he had not made an adequate

showing of prejudice. It pointed out that he had not offered any evidence relating

to §§ 1182(h)(1)(B) and 1254(a), (e) at the hearing on the motion to dismiss the

indictment. “Whether the district court erred in failing to dismiss the indictment

due to alleged violations of due process in the underlying immigration

proceedings is a mixed question of law and fact that we review de novo.”

United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998).

      We agree with the district court that Defendant has not met his burden of

showing a reasonable probability that he would have obtained relief under

§ 212(h). That provision authorizes the Attorney General to waive the application

of certain provisions making aliens ineligible for visas or admission (including

conviction of certain crimes) “in the case of an immigrant who is the . . . son . . .

of a citizen of the United States . . . if it is established to the satisfaction of the


                                           -7-
Attorney General that the alien’s exclusion would result in extreme hardship to

the United States citizen.” Defendant asserts that his parents (including his

citizen mother) were going to suffer extreme hardship as a result of the

deportation simply because he would be separated from them. This is not

sufficient to show extreme hardship. See Amaya v. INS, 36 F.3d 992, 995 (10th

Cir. 1994).

      Similarly, we agree with the district court that Defendant did not make a

sufficient showing that he would have obtained relief under § 1254. Under

§ 1254(a)(1) the Attorney General had discretion to suspend deportation of an

individual who

      has been physically present in the United States for a continuous
      period of not less than seven years immediately preceding the date of
      [the] application, and proves that during all of such period he was
      and is a person of good moral character; and is a person whose
      deportation would, in the opinion of the Attorney General, result in
      extreme hardship to the alien or to his spouse, parent, or child, who
      is a citizen of the United States or an alien lawfully admitted for
      permanent residence.

8 U.S.C. § 1254(a) (1994). Again, on the issue of extreme hardship Defendant

advances only that he would have been separated from his family.

      As for §1254(e), the Attorney General was given discretion to permit an

alien subject to deportation to “depart voluntarily from the United States at his

own expense in lieu of deportation if such alien shall establish to the satisfaction

of the Attorney General that he is, and has been, a person of good moral character

                                         -8-
for at least five years immediately preceding his application for voluntary

departure.” 8 U.S.C. § 1254(e)(1) (1994). But that provision was not available to

“any alien who is deportable because of conviction for an aggravated felony.” Id.

§ 1254(e)(2). Defendant was deported after being convicted of an aggravated

felony and was consequently not eligible for relief under § 1254(e).

      Because Defendant has not made an adequate showing of prejudice, we

conclude that the district court properly refused to dismiss the indictment. We

affirm the district court’s refusal to dismiss the indictment against Defendant and

therefore AFFIRM the judgment and sentence below.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -9-
