             Case: 12-13005     Date Filed: 01/18/2013   Page: 1 of 11

                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 12-13005
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 1:12-cr-20153-KMM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JOSE REYNALDO LOPEZ-SOLIS,

                                                              Defendant-Appellant.

                            ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________
                               (January 18, 2013)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Jose Reynaldo Lopez-Solis appeals his conviction for illegal reentry after

removal, 8 U.S.C. § 1326(a), (b)(1). For the reasons set forth below, we affirm

Lopez-Solis’s conviction.
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                                          I.

      An indictment charged Lopez-Solis with illegal reentry into the United

States after having been removed in 1998. Lopez-Solis filed a motion to dismiss

the indictment and argued that he could collaterally challenge the predicate

removal proceedings, pursuant to 8 U.S.C. § 1326(d), as the proceedings violated

his due process rights. According to Lopez-Solis, an immigration judge (“IJ”)

erroneously ordered Lopez-Solis removed on the basis that his prior felony driving

under the influence (“DUI”) convictions were crimes of violence/aggravated

felonies, and the Board of Immigration Appeals (“BIA”) affirmed the IJ’s

determination. Moreover, neither the IJ nor the BIA informed Lopez-Solis of his

right to judicial review of the removal proceedings, in violation of his due process

rights articulated in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct.

2148, 95 L.Ed.2d 772 (1987).

      The transcript of Lopez-Solis’s 1998 hearing before the IJ reflected that

Lopez-Solis proceeded pro se during the hearing, and, after the IJ ordered

Lopez-Solis removed from the United States, the IJ informed Lopez-Solis that he

had the right to appeal the decision to “a higher court.” The IJ asked Lopez-Solis

whether he wanted to file the appeal forms or whether he wished to waive an

appeal and accept the IJ’s decision as a final order. Lopez-Solis indicated that he

did not know whether he wished to appeal. The IJ stated that he would review the


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appeal forms with Lopez-Solis, as soon as the proceeding was off of the record.

Lopez-Solis also filed an affidavit in support of his motion to dismiss the

indictment, and he attested that, until the instant criminal proceedings, he was

unaware that he had a right to have the federal courts review his removal order.

      The government argued that Lopez-Solis’s motion to dismiss the indictment

should be denied, and a magistrate judge agreed with the government. Citing to

the persuasive authority of the Second and Sixth Circuits, the magistrate

determined that the immigration officials’ failure to advise Lopez-Solis that he had

the right to seek judicial review of his removal order did not violate due process.

The magistrate noted that the instant case differed significantly from

Mendoza-Lopez, where the government had conceded that the underlying hearing

had violated the defendants’ due process rights. In this case, the government made

no such concession. Moreover, the IJ had informed Lopez-Solis that he could

appeal to the BIA, and he did appeal to the BIA. After the BIA dismissed his

appeal, judicial review of the removal proceedings was available to Lopez-Solis,

despite him not actually appealing to a federal court. As Lopez-Solis had failed to

show that he was deprived of the opportunity for judicial review, he had not

sustained his burden under § 1326(d), and thus, the magistrate recommended

denying Lopez-Solis’s motion.




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      After considering Lopez-Solis’s objections to the magistrate’s

recommendation, the district court adopted the magistrate’s recommendation and,

thus, denied Lopez-Solis’s motion to dismiss the indictment. Following a bench

trial, the district court found Lopez-Solis guilty of illegal reentry of an alien.

                                           II.

      On appeal, Lopez-Solis asserts that his conviction should be reversed

because he was improperly deprived of his right to judicial review of the removal

proceedings, as no one told him that he had the right to judicially appeal the

underlying removal order. He argues that Mendoza-Lopez requires a showing that

he made a considered and intelligent waiver of his right to judicial review of the

proceedings. He contends that, for a waiver to be considered and intelligent, the

government must have advised him of his right to judicial review of his

immigration proceedings. He asserts that the circuits that have not required notice

of the right to judicial review have failed to analyze the constitutional problems

inherent in allowing the unreviewed, erroneous legal conclusions of an

administrative body to serve as conclusive proof in a criminal case. Lopez-Solis

further asserts that the Supreme Court has since determined that a DUI offense is

not a deportable offense. According to Lopez-Solis, the IJ’s removal order was

fundamentally unfair, as the outcome was affected by the IJ’s mistake of law and




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may have been different had the IJ or BIA explained to Lopez-Solis his right to

appeal to an Article III court.

      We review de novo a defendant’s collateral challenge to the validity of a

removal order in the context of a criminal proceeding. United States v. Zelaya, 293

F.3d 1294, 1297 (11th Cir. 2002). An offense under 8 U.S.C. § 1326(a) occurs

where an alien who has been deported or removed from the United States later

reenters without first obtaining permission from the Attorney General. See 8

U.S.C. § 1326(a)

      In Mendoza-Lopez, decided in 1987, the Supreme Court established that an

alien who is being prosecuted under § 1326 for illegal reentry following

deportation may, in certain circumstances, collaterally attack the legality of the

prior deportation. 481 U.S. at 839, 107 S.Ct. at 2156. The Supreme Court held

that, where a determination made in an administrative proceeding is to play a

critical role in the subsequent imposition of a criminal sanction, there must be

some meaningful review of the administrative proceedings. Id. at 837-38, 107

S.Ct. at 2155. Because the government had conceded that the defects in the

underlying proceeding at issue in Mendoza-Lopez rendered the deportation

fundamentally unfair, the Court accepted that the deportation hearing violated the

respondents’ due process rights. Id. at 839-40, 107 S.Ct. at 2156. Despite this

concession, the Court nevertheless required the violation of the respondents’ rights


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to amount to a complete deprivation of judicial review of the deportation

determination before the determination could be collaterally attacked. Id.

      The Supreme Court determined that the violation of the respondents’ rights

amounted to a complete deprivation of judicial review of the deportation

proceedings because the respondents’ waivers of their rights to appeal were not

considered or intelligent. Id. at 840, 107 S.Ct. at 2156. The Supreme Court,

however, did not determine that the waivers were unconsidered and unintelligent

on the sole basis that the IJ had failed to fully explain the respondents’ rights to

appeal their deportation orders to a federal court. See id. at 839-42, 107 S.Ct. at

2156-57. Rather, the Court mentioned the district court’s finding that the IJ had

failed to explain adequately the respondents’ rights concerning suspension of

deportation, a discretionary remedy that provided relief from deportation, and

finding that the respondents had a lack of understanding about the proceedings. Id.

at 831-32, n.3, 107 S.Ct. at 2151-52, n.3. The Supreme Court determined that the

respondents were deprived of any basis to appeal, as the only relief for which they

would have been eligible was not adequately explained to them. Id. at 839-40,

842, 107 S.Ct. at 2156-57. Thus, the Supreme Court concluded that the

respondents’ waivers of their right to appeal were unconsidered and unintelligent

in large part because they did not understand that they were eligible to apply for

suspension of deportation. Id.


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      Following Mendoza-Lopez, Congress amended § 1326 by adding subsection

(d), which provides that an alien charged with violating § 1326 may not challenge

the validity of the underlying deportation order unless the alien can demonstrate

that: (1) the alien exhausted any administrative remedies that may have been

available to challenge 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); see

Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, § 441(a),

110 Stat. 1214 (1996).

      The circuits are split as to whether the failure to advise an alien of the right

to judicial review of a deportation or removal order improperly deprives the alien

of the opportunity for judicial review, such that the order can be collaterally

attacked in a criminal proceeding. In United States v. Santos-Vanegas, before

§ 1326(d) was enacted, the Eighth Circuit determined that the government could

not use Santos-Vanegas’s earlier deportation order as a basis for his § 1326

conviction where the IJ and BIA had never informed Santos-Vanegas of his right

to appeal the administrative decision in federal court. 878 F.2d 247, 251 (8th Cir.

1989). The Eighth Circuit noted that the record showed that Santos-Vanegas was

confused about the deportation order issued by the IJ and its consequences. Id. at

250-51. Thus, the Eighth Circuit concluded that the government had an


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affirmative obligation to advise an alien effectively of his right to judicial review

of deportation proceedings if the government later wanted to use the deportation to

prove a criminal offense. Id. at 251.

      The Ninth Circuit has held that an alien may collaterally attack the

underlying removal order in his § 1326 criminal proceeding, where he did not

validly waive his right to appeal the removal order. See United States v.

Reyes-Bonilla, 671 F.3d 1036, 1039, 1043-45 (9th Cir.) (providing that the alien’s

general right to appeal the removal decision to either the BIA or to the federal

courts was not explained satisfactorily, and thus, the alien had satisfied

§ 1326(d)(1)-(2)), cert. denied, 133 S.Ct. 322 (2012). The Second Circuit,

however, has held that Mendoza-Lopez does not provide that an alien has a right to

notice about the availability of judicial review of a deportation order before that

order is relied upon in a criminal proceeding. United States v. Lopez, 445 F.3d 90,

95, 100 (2d Cir. 2006) (providing that, despite there being no stand-alone right to

notice of the availability of judicial review, Lopez was denied a realistic

opportunity for judicial review, as the IJ and BIA had misinformed Lopez). The

Second Circuit reasoned that the receipt of a final order of deportation should put

an alien on notice to look for remedies for that order. Id. at 95. Further, judicial

remedies are readily available in case law and statutes, and thus, due process was

not offended where no notice of those remedies was provided. Id. at 96.


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      Similarly, the Sixth Circuit has held that Mendoza-Lopez does not require

immigration officials to advise an alien of a right to judicial appeal, as opposed to a

general right to appeal, at deportation hearings. United States v. Escobar-Garcia,

893 F.2d 124, 126 (6th Cir. 1990) (providing that the defendant had expressed no

desire to appeal his deportation order). Rather, general explanations at the

conclusion of a deportation hearing advising the alien of his right to appeal the

deportation order satisfy Mendoza-Lopez and provide the alien with notice of his

appellate rights sufficient to satisfy due process. Id. The Tenth Circuit has also

rejected an alien’s argument that he was not informed of his right to judicial

review, as the record showed that he was notified of his right to appeal an adverse

decision by the IJ and the IJ had noted that the alien had waived his right to appeal.

United States v. Rivera-Nevarez, 418 F.3d 1104, 1110-11 (10th Cir. 2005). As the

record did not indicate that the notification of his right to appeal was insufficient or

that the waiver was otherwise inadequate, the Tenth Circuit declined to presume

that the removal hearing improperly precluded the alien’s right to judicial review.

Id. at 1111.

      In this case, the government has conceded that Lopez-Solis exhausted his

administrative remedies, as required by § 1326(d)(1). Next, as to § 1326(d)(2),

Lopez-Solis was not deprived of his right to judicial review of his 1998 removal

order simply because he was not informed of this right during his removal


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proceedings. Unlike the aliens in Mendoza-Lopez and Santos-Vanegas,

Lopez-Solis expressed no confusion over the IJ’s deportation order and its

consequences. See Mendoza-Lopez, 481 U.S. at 831-32, 839-40, 842, 107 S.Ct. at

2151-52, 2156-57; Santos-Vanegas, 878 F.2d at 250-51. The IJ informed

Lopez-Solis of his right to appeal, and Lopez-Solis appealed to the BIA. Further,

based on the record, the IJ did not make any affirmative misstatements that misled

Lopez-Solis into believing that he could not appeal to federal court. Lopez-Solis’s

case also differs from Reyes-Bonilla, 671 F.3d at 1043-45, where the Ninth Circuit

concluded that the record demonstrated that the alien did not understand an

immigration official’s general notice of his right to appeal. Here, Lopez-Solis did

receive a general notice of his right to appeal and was able to appeal to the BIA.

      We agree with the Second Circuit’s persuasive holding that, in an ordinary

case, the receipt of a final order of removal puts an alien on notice to look for

remedies of that order. Lopez, 445 F.3d at 95. Although the administrative nature

of the removal proceedings may not lead an alien to look outside the administrative

arena for relief, where judicial remedies are readily available in case law and

statutes, due process is not offended where no notice of those remedies is provided.

Id. at 95-96; see Escobar-Garcia, 893 F.2d at 126. Accordingly, we reject

Lopez-Solis’s argument that his due process rights were violated because the IJ

and the BIA failed to specifically inform him about the availability of judicial


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review. Because Lopez-Solis failed to show that he has satisfied all of the

requirements of § 1326(d), the district court did not err in rejecting Lopez-Solis’s

collateral challenge to his removal proceedings.

      For the foregoing reasons, we affirm Lopez-Solis’s conviction.

      AFFIRMED.




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