                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 3, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-51330
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LUIS ENRIQUE GOMEZ-LIRA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-02-CR-85-ALL-H
                       --------------------

Before DAVIS, EMILIO M. GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Luis Enrique Gomez-Lira appeals his conviction for illegal

reentry following deportation.    He argues that the district court

erred in denying his motion to dismiss the indictment, in which

he collaterally challenged his removal proceedings.     He

additionally contends that his indictment was fatally defective.

     An alien seeking to collaterally challenge an order of

removal in an 8 U.S.C. § 1326 prosecution must establish (1) that

the removal proceeding was “‘fundamentally unfair’”; (2) that the

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 02-51330
                                 -2-

proceeding “effectively eliminated” his right to challenge the

proceeding by means of judicial review; and (3) that “procedural

deficiencies” actually prejudiced him.     United States v. Mendoza-

Mata, 322 F.3d 829, 832 (5th Cir. 2003) (citation omitted); see

also 8 U.S.C. § 1326(d).    If the alien fails to establish one

prong of the test, the others need not be considered.     Mendoza-

Mata, 322 F.3d at 832.

     We reject Gomez’s contention that his ability to obtain

judicial review was effectively eliminated by his failure to be

released on bond and by an involuntary waiver of his appellate

rights.   An alien’s detention during removal proceedings is

constitutionally permissible.    See Demore v. Kim, 123 S. Ct.

1708, 1721-22 (2003).    Moreover, the district court’s finding

that Gomez knowingly waived his appellate rights was not clearly

erroneous.   See United States v. Encarnacion-Galvez, 964 F.2d

402, 409 (5th Cir. 1992).

     Gomez’s contention that his order of removal was exclusively

based on the immigration judge’s erroneous determination that he

was an aggravated felon is unsupported by the record, which

indicates that both the notice to appear and the order of removal

additionally cited to the fact that he had been convicted of a

crime of child abuse as grounds for his removal.    Gomez has not

challenged that additional finding, and, therefore, he can show

no prejudice.
                           No. 02-51330
                                -3-

     The immigration judge’s determination that Gomez was

statutorily ineligible for cancellation of removal and,

therefore, § 212(c) discretionary relief did not rise to the

level of a due process violation such that his removal proceeding

was rendered fundamentally unfair.   See United States v. Lopez,

313 F.3d 225, 228 (5th Cir. 2002), cert. denied, 123 S. Ct. 922

(2003).   Finally, Gomez’s contention that the indictment was

fatally defective is inadequately briefed and is therefore

waived.   See United States v. Green, 964 F.2d 365, 371 (5th Cir.

1992).

     AFFIRMED.
