                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                NOV 16 1999
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                      ____________                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                             No. 98-1391
 v.                                                     (D.C. No. 98-CR-90-M)
                                                               (D. Colo.)
 FAUSTO AVILA-GONZALEZ,

               Defendant-Appellant.
                                      ____________

                              ORDER AND JUDGMENT*
                                  _____________

Before ANDERSON, EBEL, Circuit Judges, and CROW, District Judge.**
                             _____________

       The defendant Fausto Avila-Gonzalez appeals his conviction under 8 U.S.C. §

1326(a) for illegally reentering the United States after being deported subsequent to an

aggravated felony conviction. The defendant challenges the district court’s order denying

his motion to dismiss the indictment. The defendant contends the deportation

proceedings underlying this conviction were in violation of his right to due process. We



       *
        This order and judgment is not binding precedent, except under the doctrines of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
citations of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.

        The Honorable Sam A. Crow, Senior United States District Judge for the District
       **

of Kansas, sitting by designation.
exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

       While incarcerated on state convictions for attempted felony theft and criminal

impersonation, Mr. Avila-Gonzalez was served with an order from the Immigration and

Naturalization Service (“INS”) in June of 1996 to show cause why he should not be

deported for his September 1995 state conviction of attempted distribution of a controlled

substance. Proceedings on this order to show cause did not begin until February of 1997

following the defendant’s release from state prison. Mr. Avila-Gonzalez retained Daniel

Post as counsel to represent him in the deportation proceedings. In June of 1997 the

defendant was arrested and released on traffic charges, and in July the defendant was

arrested and detained on a parole violation.

       Mr. Post entered his appearances in these other proceedings and secured

agreements which resulted in the following. Mr. Avila-Gonzalez pleaded guilty to the

traffic charges and received a ten-day sentence and credit for time served on the parole

violations. He pleaded guilty to the parole violations but was turned over to INS custody.

He submitted to the INS a signed statement that conceded he was subject to deportation,

that requested a final deportation order to Mexico, and that waived all rights in the

deportation proceedings, including the right to appeal. The immigration judge issued the

final deportation order on September 18, 1997, and Mr. Avila-Gonzalez was deported to

Mexico in October of 1997.

       In February of 1998, the INS was contacted that Mr. Avila-Gonzalez was being


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held at Weld County Jail, Greeley, Colorado, following an arrest on traffic charges. Prior

to reentering the United States, he had not applied for or received permission from the

Attorney General of the United States. Mr. Avila-Gonzalez moved to dismiss the

indictment that charged him with illegally reentering the United States in violation of 8

U.S.C. § 1326(a). He argued his deportation proceedings were fundamentally unfair in

two regards. First, the regulatory procedures, as applied here, allowed him to stipulate in

writing to deportation and to waive all rights to a hearing and appeal without being

physically present. Second, because his counsel was ineffective, he did not knowingly

and voluntarily waive his rights in those proceedings, including the right to judicial

review on appeal. The district court conducted an evidentiary hearing and denied the

motion by written order. The case went to trial, and the jury found Mr. Avila-Gonzalez

guilty. His only dispute on appeal is with the district court’s ruling on his due process

challenge to the deportation proceedings.

       A due process challenge to the underlying immigration proceedings presents a

mixed question of law and fact. United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th

Cir. 1998) (citations omitted), cert. denied, 119 S. Ct. 2355 (1999); United States v.

Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994). We review de novo the district court’s

denial of such a challenge. Id. The findings of fact underlying that decision, however,

are accepted unless clearly erroneous. United States v. Torres-Sanchez, 68 F.3d 227, 229

(8th Cir. 1995); cf. United States v. Blackwell, 127 F.3d 947, 955 (10th Cir. 1997) (a


                                             -3-
district court's finding that counsel was not ineffective is a mixed question reviewed de

novo, but the factual findings underlying the ultimate finding are reviewed only for clear

error).

          To make a successful collateral challenge1 to a deportation order in a § 1326

prosecution, a defendant must show that the deportation hearing effectively foreclosed his

right to seek judicial review and was fundamentally unfair. Wittgenstein, 163 F.3d at

1170. “‘[T]o establish fundamental unfairness, the alien must show that he was

prejudiced.’” Id. (quoting Meraz-Valeta, 26 F.3d at 998 (citation omitted)). While

arguing first that he need not show prejudice when he has been denied the right to judicial

review, Mr. Avila-Gonzalez concedes the Tenth Circuit has held to the contrary and

proceeds to his alternative arguments of prejudice. Bound by prior panels’ decisions

absent en banc reconsideration or a superseding Supreme Court decision, In re Smith, 10

F.3d 723, 724 (10th Cir. 1993), cert. denied, 513 U.S. 807 (1994), we accept his

concession.

          Before the district court, Mr. Avila-Gonzalez briefly stated his position that any

waiver had to “be done in open court, in front of an immigration judge, so that the judge

can ascertain a knowing and intelligent waiver.” (Rec. vol. I, 22). On appeal, he repeats



       Because the government does not dispute that the defendant exhausted his
          1

administrative remedies, our analysis of the defendant’s collateral attack on the
deportation hearing is the same under 8 U.S.C. § 1326(d) and the constitutional standard
of United States v. Mendoza-Lopez, 481 U.S. 828, 837-39 (1987). United States v.
Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998).

                                               -4-
this argument but waits until his reply brief to cite any authority for it. None of his cited

authorities on rights in criminal proceedings are persuasive, for “[a] deportation

proceeding is a purely civil action” and “various protections that apply in the context of a

criminal trial do not apply in a deportation hearing.” INS v. Lopez-Mendoza, 468 U.S.

1032, 1038 (1984); see United States v. Valdez, 917 F.2d 466, 469 (10th Cir. 1990). The

defendant’s “lack of authority is not surprising since such a high hurdle has not before

been raised in order to comply with the basic notions of due process in a deportation

case.” United States v. Benitez-Villafuerte, 186 F.3d 651, 656 (5th Cir. 1999) (reversed

district court’s holding that the alien’s written waiver of rights was ineffective because it

was not made in open court before a neutral judge who could affirm that the waiver was

knowing and voluntary). A deportation hearing may proceed without the respondent, if

he does not avail himself of the reasonable opportunity to be present. INS v.

Lopez-Mendoza, 468 U.S. at 1038-39. A respondent can also waive his rights expressly

in person, United States v. Paredes-Batista, 140 F.3d 367, 376-78 (2nd Cir.), cert. denied,

119 S. Ct. 143 (1998), and expressly by written stipulation or waiver, United States v.

Benitez-Villafuerte, 186 F.3d at 656-658; United States v. Galicia-Gonzalez, 997 F.2d

602, 603-04 (9th Cir. 1993). Failing to show that the regulatory procedures denied him a

reasonable opportunity to claim all the procedural due process to which he was

constitutionally entitled, the defendant’s argument as advanced here is rejected.

       In support of his contention that he did not knowingly and intentionally waive his


                                              -5-
rights to a deportation hearing and judicial review, Mr. Avila-Gonzalez testified that he

cannot read and can converse in English only when it is spoken slowly. He denied ever

telling Mr. Post that he wanted to be deported to Mexico. He admitted signing the

statement in which he stipulated to a final order of deportation and waived his rights to a

hearing and appeal. Mr. Avila-Gonzalez testified, however, that Mr. Post never read or

explained this document when he signed it.

       The government called Mr. Post who testified that he had no difficulty conversing

in English with Mr. Avila-Gonzalez, that he was satisfied the defendant understood him,

and that he observed nothing to indicate the need for an interpreter. After being jailed on

parole violations, Mr. Avila-Gonzalez changed his mind and instructed Mr. Post that he

wanted to be deported to Mexico immediately to avoid any additional incarceration in

state prison. Mr. Post summarized this conversation in a hand-delivered letter to Mr.

Avila-Gonzalez and read it to him. A week later, the defendant pleaded guilty to the state

charges and told the district court judge that he understood and found acceptable the

arrangements made by Mr. Post which included his release to INS for immediate

deportation to Mexico. Mr. Post testified that he read to the defendant each line of the

prepared waiver and statement for deportation, had the defendant sign it, and had it

witnessed by a guard at the jail. Mr. Post did not have any question that Mr. Avila-

Gonzalez understood what he was signing and what would happen as a result of his

stipulation and waiver.


                                             -6-
       We find nothing clearly erroneous in the district court’s finding that credited Mr.

Post’s testimony over the conflicting testimony given by Mr. Avila-Gonzalez. The

written waiver and stipulation signed by the defendant states in plain and direct terms his

waiver of the “right to a personal hearing before an immigration judge” and “right to

appeal.” (Rec. vol. I, 30, Gov. Ex. 2). Out of an asserted desire to end his current

detention and avoid further incarceration,2 Mr. Avila-Gonzalez voluntarily and knowingly

chose to waive his rights in the deportation proceedings and stipulate to his immediate

deportation. See United States v. Mendoza-Lopez, 7 F.3d 1483, 1486 (10th Cir. 1993),

cert. denied, 511 U.S. 1036 (1994). Having knowingly and intelligently waived his rights

to a deportation hearing and judicial review, the defendant has not shown he was denied

any constitutional rights on which to mount a successful collateral attack to the validity of

the deportation proceedings. Nor has Mr. Avila-Gonzalez shown that he was prejudiced

by any alleged deficiencies in those proceedings or with his counsel’s performance.3 We

       2
        Not only was Mr. Avila-Gonzalez facing possible detention time on his traffic
charges and parole violation, but as Mr. Post testified, the parole officer indicated that
officers found drugs in the car when Mr. Avila-Gonzalez was arrested on traffic charges.
       3
         Because of his felony drug conviction, Mr. Avila-Gonzalez was without a defense
to or viable basis for contesting deportation. What he argues to be prejudice is the lost
opportunity during the pendency of his deportation proceeding to obtain relief in state
district court on his prior felony drug conviction based on ineffective assistance of
counsel. We agree with the district court that this lost opportunity is too speculative here
to qualify as prejudice. There being no reasonable basis for finding that the outcome of
Mr. Avila-Gonzalez’s deportation case would have been different, see United States v.
Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994), we conclude that the alleged
deficiencies with his attorney’s performance and with the procedures employed did not
render the deportation proceedings fundamentally unfair.

                                             -7-
therefore conclude the district court did not err in denying the defendant’s motion to

dismiss the indictment.

       AFFIRMED.
                                          Entered for the Court

                                          Sam A. Crow
                                          District Judge




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