UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                          No. 97-4721
RIEL CHARLESWELL, a/k/a Riel
Charles Wells,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-97-110-S)

Argued: December 4, 1998

Decided: February 8, 1999

Before HAMILTON and LUTTIG, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Wyda, Assistant Federal Public Defender, Balti-
more, Maryland, for Appellant. Bonnie S. Greenberg, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: James K. Bredar, Federal Public Defender, Baltimore, Mary-
land, for Appellant. Lynne S. Battaglia, United States Attorney, Balti-
more, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Riel Charleswell challenges his conviction for reentry by
a deported alien in violation of 8 U.S.C. § 1326. Because we conclude
that Charleswell was not deprived of his right to judicial review, we
affirm.

I.

In 1967, appellant Riel Charleswell immigrated to the United
States from the British Virgin Islands. He subsequently became a per-
manent resident of the United States. On January 6, 1987, Charleswell
was convicted in a Maryland state court of possession with intent to
distribute marijuana. The Immigration and Naturalization Service
(INS) then commenced deportation proceedings. On November 7,
1991, an immigration judge conducted a deportation hearing for
Charleswell. At the hearing, the INS alleged that Charleswell was
deportable because of his prior conviction. Charleswell conceded that
he was deportable, but sought a waiver under section 212(c) of the
Immigration and Nationality Act. See 8 U.S.C. § 1182(c) (1994).

The immigration judge denied Charleswell's request for a waiver
on two grounds. First, the immigration judge concluded that Charles-
well had not been domiciled in the United States for seven consecu-
tive years, as is required to obtain a waiver under section 212(c). In
reaching this conclusion, however, the immigration judge erroneously
relied on the fact that Charleswell had spent part of the previous seven
years in St. Thomas, in apparent ignorance of the fact that St. Thomas
is part of the United States Virgin Islands and therefore part of the
United States for purposes of section 212(c). See 8 U.S.C.
§ 1101(a)(38). Second, the immigration judge ruled that, even if
Charleswell were eligible for a section 212(c) waiver, Charleswell
had failed to establish sufficient equitable grounds to remain in the

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United States. The immigration judge therefore denied Charleswell's
request for a waiver, and Charleswell was deported.

In 1997, law enforcement officials became aware that Charleswell
had reentered the United States. On March 20, officers arrested
Charleswell pursuant to a valid arrest warrant and searched his resi-
dence pursuant to a valid search warrant. In the course of the search,
officers recovered a loaded 9-millimeter handgun. On March 27,
Charleswell was indicted on two counts of reentry by a deported alien
and possession of a firearm by a convicted felon. Charleswell then
moved to dismiss the indictment on the ground that his previous
deportation was fundamentally unfair. On July 25, the district court
denied the motion. On August 29, Charleswell entered a conditional
guilty plea and was sentenced to 49 months in prison. Charleswell
appeals.

II.

On appeal, Charleswell makes two arguments. First, Charleswell
contends that, as a matter of due process, he was entitled to challenge
the prior deportation proceeding in the subsequent criminal proceed-
ing on the ground that the prior proceeding was fundamentally unfair.
In doing so, Charleswell relies on the Supreme Court's opinion in
United States v. Mendoza-Lopez, 481 U.S. 828 (1987). In Mendoza-
Lopez, the Supreme Court upheld a collateral challenge to prior
deportation proceedings in subsequent criminal proceedings on the
grounds that the immigration judge had not adequately informed the
aliens of their rights to appeal or to apply for suspension of deporta-
tion and that the aliens had not made knowing and intelligent waivers
of those rights. See id. at 831-32. The Court held that an alien was
entitled, as a matter of due process, to bring a collateral challenge to
a fundamentally unfair deportation proceeding, provided that the alien
had been effectively deprived of his right to judicial review. See id.
at 838-39. As all of the circuit courts to have considered the issue
have noted, in order for a collateral challenge to lie under Mendoza-
Lopez, an alien must demonstrate both that the prior deportation pro-
ceeding was fundamentally unfair and that he had been effectively
deprived of his right to judicial review. See , e.g., United States v.
Palacios-Martinez, 845 F.2d 89, 91 (5th Cir. 1988); United States v.
Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994); United States v.

                    3
Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); United States v.
Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994); United States v.
Holland, 876 F.2d 1533, 1536 (11th Cir. 1989).

Assuming, arguendo, that appellant's prior deportation proceeding
was fundamentally unfair because the immigration judge erroneously
believed that St. Thomas was not part of the United States for pur-
poses of section 212(c), we conclude, like the district court, that
appellant was not effectively deprived of his right to judicial review.
As the district court found, the immigration judge told appellant that
he had the right to appeal. J.A. at 35. Although appellant testified
before the district court that his attorney recommended that he not
appeal, id. at 20-21, 24-25, and may even have refused to handle any
appeal, id. at 21, 28, appellant also testified that he knew he could
have hired another attorney to pursue an appeal, id. at 24-25, but
chose not to do so because "[he] thought[he] would be losing money
[by] hiring somebody else," id. at 25. On the basis of appellant's own
testimony, and in view of the fact that appellant was a highly edu-
cated man who spoke fluent English, id. at 35, we agree with the dis-
trict court that appellant was not effectively deprived of his right of
judicial review, and therefore that the second prong of Mendoza-
Lopez was not satisfied.* We therefore reject appellant's due process
claim.

III.

Second, Charleswell contends that the statute permitting collateral
challenge to a prior deportation proceeding in a subsequent criminal
prosecution for reentry by a deported alien, 8 U.S.C. § 1326(d), is
_________________________________________________________________
*In a footnote, the Court in Mendoza-Lopez suggested that there may
exist "procedural errors . . . so fundamental that they may functionally
deprive [an] alien of judicial review." Mendoza-Lopez, 481 U.S. at 839
n.17. The Court suggested that errors such as the use of a coerced confes-
sion, bias on the part of the judge, the threat of mob violence, or the
knowing use of perjured testimony may constitute such fundamental pro-
cedural errors. Id. In this case, however, no such fundamental procedural
error exists: instead, the immigration judge simply made a substantive
error of law -- albeit an egregious one -- of precisely the sort that could
have been corrected on appeal.

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unconstitutional because it violates the separation of powers. Section
1326(d) provides:

          In a criminal proceeding under this section, an alien may not
          challenge the validity of [a prior deportation order] unless
          the alien demonstrates that --

          (1) the alien exhausted any 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 the alien of the opportunity for
          judicial review; and

          (3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). Appellant argues that, in enacting section
1326(d), Congress was effectively attempting to overrule the Supreme
Court's interpretation of the Due Process Clause in Mendoza-Lopez
by requiring an alien seeking to bring a collateral challenge on due
process grounds to meet not just the requirements of Mendoza-Lopez,
as codified in subsections (2) and (3), but also to exhaust the available
administrative remedies, as codified in subsection (1). Appellant con-
tends that Congress' enactment of section 1326(d), with the additional
exhaustion requirement, therefore violated the doctrine of separation
of powers. Because we conclude that appellant was not deprived of
judicial review, however, and thus that subsection (2) was not satis-
fied, we need not reach the issue of whether Congress' enactment of
the additional exhaustion requirement in subsection (1) was unconsti-
tutional. Consequently, we do not address appellant's constitutional
claim.

CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED

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