                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                OCT 16 2001
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                             No. 00-3305
                                                      (D.C. No. 00-CR-10073-01)
 v.
                                                          (District of Kansas)
 ALEJANDRO ZALAZAR-TORRES,

           Defendant-Appellant.


                                   ORDER AND JUDGMENT*


Before EBEL, HOLLOWAY and LUCERO, Circuit Judges.



       In this direct criminal appeal, Alejandro Zalazar-Torres seeks reversal of his

conviction under 8 U.S.C. § 1326 for illegal re-entry into the United States after having

been deported. Because he had a prior conviction for an aggravated felony, Mr. Zalazar

was subject to the penalty provisions of subsection 1326(b)(2). On appeal, Mr. Zalazar

challenges the 1997 deportation proceeding which underlies his present conviction,

contending the proceeding was fundamentally unfair, depriving him of 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        This order and judgment is not binding precedent, except under the doctrines of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. This 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.
conclude that he has failed to establish that the 1997 INS proceeding was fundamentally

unfair, depriving him of due process. We accordingly affirm his conviction.



                                             I

       In 1997, Mr. Zalazar was convicted in Harvey County District Court, State of

Kansas, of the felony offense of possession of cocaine with intent to distribute.

Following that conviction, Mr. Zalazar was deported from the United States on December

17, 1997. Defendant again came to the attention of the INS in November 1999, when he

was in the custody of the Wichita Police Department on charges of burglary and theft.

The instant prosecution commenced on April 19, 2000, when Defendant was charged by

criminal complaint in federal court with illegal reentry in violation of 8 U.S.C. § 1326,

and a grand jury indictment on the same charge followed on May 2, 2000. After a motion

to dismiss the indictment had been denied by the district judge, Defendant entered into a

conditional plea agreement, reserving the right to appeal the denial of his motion to

dismiss. Defendant was sentenced to imprisonment of 36 months, to be followed by a

term of supervised release of three years, and he was ordered to pay a special assessment

of $100.00.



                                             II

       Mr. Zalazar argues that his Fifth Amendment right to due process of law was


                                            -2-
violated in his 1997 removal1 proceeding and that his conviction therefore should be

reversed. Mr. Zalazar presents his challenge to the 1997 proceeding in a framework

provided by statute:

       In a criminal proceeding under this section, an alien may not challenge the
       validity of the deportation order described in subsection (a)(1) or subsection
       (b) of this section 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 [sic] 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). We have recognized that “[t]his section comports with the

constitutional standard for due process” set forth in United States v. Mendoza-Lopez, 481

U.S. 828, 837-39 (1987). United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir.

1998), cert. denied, 527 U.S. 1012 (1999). A removal proceeding is a civil proceeding,

not a criminal one, and the demands of due process are accordingly less strict. See United

States v. Valdez, 917 F.2d 466, 469 (10th Cir. 1990).

       Mr. Zalazar contends that the first requirement of exhaustion of administrative

remedies should be excused because the INS could not have decided his claims of

deprivation of his constitutional rights. He cites, inter alia, Rabang v. INS, 35 F.3d 1449,



       The statutory scheme now uses the term “removal” instead of “deportation.” See
       1

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1140 n.2 (10th Cir. 1999), cert. denied sub
nom. Palaganas-Suarez v. Greene, 529 U.S. 1041 (2000).

                                            -3-
1451 (9th Cir. 1994) (Board of Immigration Appeals would not have had jurisdiction to

decide claim that plaintiffs were citizens under the Fourteenth Amendment; a civil action

for declaratory judgment therefore was not barred by failure to exhaust); and Dastmalchi

v. INS, 660 F.2d 880, 886 (3d Cir. 1981) (dictum that “[n]either an Immigration Judge nor

the Board of Immigration Appeals, in the course of a deportation proceeding, can enter an

order voiding an alien’s deportation in response to a constitutional objection”). The

Government does not argue that Defendant’s appeal should be barred for failure to pursue

administrative remedies. Consequently, we will proceed in our consideration of

Defendant’s argument, but we express no opinion on whether his failure to exhaust

administrative remedies is justified.2



                                             III


       2
         It is clear that an agency does not have authority to determine the constitutionality
of a statute. We have said, however, that “‘[A] fundamental distinction must be
recognized between constitutional applicability of legislation to particular facts and
constitutionality of the legislation. . . . . We commit to administrative agencies the power
to determine constitutional applicability, but we do not commit to administrative agencies
the power to determine constitutionality of legislation.’” McGrath v. Weinberger, 541
F.2d 249, 251 (10th Cir. 1976) (quoting 3 Kenneth Culp Davis, Administrative Law
Treatise § 20.04, at 74 (1958)).
        Defendant here does not contend that the statute is unconstitutional, only that its
application in his case was unconstitutional. Moreover, as discussed below, Defendant’s
argument in this case is focused on procedural protections which are mandated by statute,
whether or not they are constitutionally required. Thus, we do not endorse Defendant’s
contention that exhaustion of administrative remedies would have been futile in this case.
Instead, in the absence of an argument by the Government on the point, we simply
proceed to decide the appeal on other grounds.

                                             -4-
       Thus we move to Defendant’s attempts to show that he was improperly deprived of

the opportunity for judicial review and that the entry of the order was fundamentally

unfair, the second and third requirements under § 1326(d). We review de novo the mixed

question of law and fact raised by a collateral attack on the constitutional validity of

removal proceedings underlying a prosecution for illegal reentry under 8 U.S.C. § 1326.

United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994). We have held that in

order to show that the underlying order was fundamentally unfair, the alien must show

prejudice. Id. at 998.

       Mr. Zalazar contends that decision by an unbiased arbiter is one of the

fundamental attributes of due process, the absence of which renders an adjudication

constitutionally infirm even in the absence of prejudice. The underlying principle has

long been recognized: “Concededly, a ‘fair trial in a fair tribunal is a basic requirement of

due process.’ In re Murchison, 349 U.S. 133, 136 (1955).” Withrow v. Larkin, 421 U.S.

35, 46 (1975). Mr. Zalazar cites the Supreme Court’s observation in Mendoza-Lopez that

some procedural errors may be “so fundamental that they may functionally deprive the

alien of judicial review, requiring that the result of the hearing in which they took place

not be used to support a criminal conviction.” 481 U.S. at 839 n.17. Although the Court

in Mendoza-Lopez declined to enumerate what errors might fall into this category, the

opinion cited Rose v. Clark, 478 U.S. 570, 577 (1986), and its reference to use of coerced

confessions and, significantly for our case, adjudication by a biased judge. Id.


                                             -5-
       We find it unnecessary to decide whether our rule requiring prejudice affords an

exception in circumstances establishing a violation of a right so fundamental as to be

comparable to the concept of structural error in criminal law. This is so because we

conclude that Defendant has failed to establish the predicate for his argument.

       As the factual basis for his claim that his 1997 removal was flawed because the

decision was not made by a neutral arbiter, Mr. Zalazar relies on the contention that the

same official both brought the charges against him and decided that removal was

warranted. Review of the record regarding the 1997 removal proceeding is necessary for

consideration of this issue. We note first, however, that Mr. Zalazar failed to make this

argument in the district court so that our review is for plain error only.3

       An INS form called “Notice of Intent to Issue a Final Administrative Removal

Order” was issued by Ted K. Moss, shown as Assistant District Director, Investigations,


       3
        We reject the contention that this issue was properly raised in the district court.
Mr. Zalazar argued below only that the INS as an institution was not a neutral arbiter
since the INS both brought the charges and determined their disposition. That argument
fails under Withrow v. Larkin and its progeny, including Harline v. Drug Enforcement
Admin., 148 F.3d 1199, 1204 (10th Cir. 1998), cert. denied, 525 U.S. 1068 (1999); Hicks
v. City of Watonga, 942 F.2d 737, 746-47 (10th Cir. 1991); and Mangels v. Pena, 789
F.2d 836, 838 (10th Cir. 1986). “It is not surprising, therefore, to find that ‘[t]he case
law, both federal and state, generally rejects the idea that the combination [of] judging
[and] investigating functions is a denial of due process . . . .’ 2 K. Davis, Administrative
Law Treatise § 1302, p. 175 (1958).”
        Defendant’s mere unsubstantiated allegations of bias fail to meet the standards set
by the precedents. The present, more specific argument is that the same individual
brought and decided the charge against defendant in violation of 8 U.S.C. § 1228 (b) (4)
(F), and due process. See Brief For The Appellant, at 13-15. We conclude this issue was
not fairly presented in the district court.

                                              -6-
and was served on Defendant by Immigration Agent Mark S. Larkin on November 25,

1997. This document bears the signature of Mr. Zalazar, acknowledging service of the

document at 1:16 p.m. on November 25, 1997. Agent Larkin also signed the form as

interpreter, indicating that he gave the notice in Spanish. In a section of that document

provided for the response of the person charged, Defendant admitted that he was

deportable, and that he was not eligible for relief from deportation, and that he waived his

right to contest the charge and his right to file a petition for review of the Final Removal

Order. He also waived the usual fourteen day waiting period for execution of the Final

Removal Order. The document shows that Mr. Zalazar signed this section of the notice at

1:18 p.m. on November 25, 1997, some two minutes after he acknowledged that it had

been served on him.

       Deportation Officer Paul L. Mitchell prepared a memorandum for the file dated

December 15, 1997, recommending that a Warrant of Removal/Deportation be issued

“For the Respondent” Zalazar. In this memorandum, Officer Mitchell makes this

statement on which Mr. Zalazar focuses in this appeal: “The Assistant District Director

of Investigations ordered the Respondent [i.e., Mr. Zalazar] removed from the United

States based on the charge(s) contained on the Notice to Issue a Final Administrative

Removal Order (Form I – 851).” The memo also states: “The Assistant District Director

of Deportation ordered that a Final Administrative Removal Order (Form I–851A) be

issued to the Respondent based on the charges contained on the Notice of Intent to Issue a


                                             -7-
Final Administrative Removal Order (Form I – 851).” Our record does not reveal

whether the Form I – 851A was issued. On December 17, 1997, a “Warrant of

Removal/Deportation” was issued, but the signature of the official is illegible. That

signature was entered “for District Director” the document states. This document shows

that defendant departed on December 19, 1997.

       We conclude that the record is insufficient to support the contention most

emphasized by Defendant – that he was deprived of the right to a neutral decision maker

in the 1997 INS proceedings. Defendant focuses on the statement in the memorandum by

Officer Mitchell that “the Assistant Director of Investigations ordered the Respondent

removed from the United States based on the charge(s) contained on the Notice to Issue a

Final Administrative Removal Order (Form I - 851).” Because the charging officer was

the Assistant Director of Investigations, Moss, on the “Warrant for Arrest of Alien” dated

November 25, 1997, Defendant contends that the statement in the Mitchell memo shows

that the same person brought the charges against him and decided those charges, in

violation of due process as well as in violation of the applicable statute, 8 U.S.C. §

1228(b)(4),4 and regulation, 8 C.F.R. § 238.1 (1998).



       This statute provides:
       4



              Proceedings before the Attorney General under this subsection shall
       be in accordance with such regulations as the Attorney General shall
       prescribe. The Attorney General shall provide that –

       (A) the alien is given reasonable notice of the charges and of the

                                             -8-
      Mr. Zalazar’s argument ignores an equally pertinent portion of the Mitchell

memorandum which indicates that “[t]he Assistant District Director of Deportation

ordered that a Final Administrative Removal Order (Form I - 851A) be issued to the

Respondent . . . .” (emphasis added). That statement suggests that it was not Mr. Moss,

the “Assistant District Director, Investigations” (emphasis added) who made the final

decision. As noted, our record does not include the Final Administrative Removal Order,

only the Notice of Intent to Issue a Final Administrative Removal Order. Moreover, the

Warrant of Removal/Deportation was not signed by Moss (although we cannot determine

by whom it was signed). Mr. Zalazar argues that the unidentified signatories of the

Warrant and of the Final Administrative Removal Order (which Order we presume exists



      opportunity described in subparagraph (C);

      (B) the alien shall have the privilege of being represented (at no expense to
      the government) by such counsel, authorized to practice in such
      proceedings, as the alien shall choose;

      (C) the alien has a reasonable opportunity to inspect the evidence and rebut
      the charges;

      (D) a determination is made for the record that the individual upon whom
      the notice for the proceeding under this section is served (either in person or
      by mail) is, in fact, the alien named in such notice;

      (E) a record is maintained for judicial review; and

      (F) the final order of removal is not adjudicated by the same person who
      issues the charges.

8 U.S.C. § 1228(b)(4).

                                            -9-
because it is required by regulation) were merely performing the ministerial duty of

executing documents under the command of Moss. We cannot agree that the single

statement in the memo by Officer Mitchell, relied on by Defendant Zalazar, compels this

conclusion. The scenario of the operative documents being signed by officials taking

their orders from the charging officer, Moss, is possible, but it is far from proven by this

one statement. The burden of proof is on Mr. Zalazar in this collateral attack on the 1997

removal order. United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000)

(“the burden of proof in a collateral attack on a deportation order is on a defendant based

on the presumption of regularity that attaches to a final deportation order”). Defendant

Zalazar has not succeeded in meeting that burden.

       We also find unpersuasive Defendant’s contention that his waiver of rights,

including his right of direct review of the removal order, should be deemed invalid.

Defendant contends that the waiver itself violated due process. In support of this

argument, Defendant points to his lack of education, his limited ability to speak English,

and the fact that the waiver was signed only two minutes after he acknowledged service

of the Notice of Intent accompanied by a statement, in Spanish, of his rights.

       We are not persuaded by Defendant’s arguments that his waiver of rights should be

deemed invalid. In the district court the judge inquired of the parties whether they desired

to present evidence. The Defendant declined to do so, asserting that the matter was

essentially a legal question. Memorandum and Order, 1 R. Doc. 27 at p.3. Aside from


                                            -10-
the documents attached to its response, the Government also declined to present any

evidence. The trial judge noted the Defendant Zalazar’s apparent acknowledgment of

execution of his written waiver of his right of judicial review, which the statute focuses

on in 8 U.S.C. § 1326 (d) (2). The judge said that Zalazar contends the waiver was

invalid because his rights were not explained to him by an immigration judge and the

waiver was not taken in the presence of a judge.

       The judge rejected the contentions of invalidity of waiver and stated that on the

evidence presented, and the absence of any evidence to suggest otherwise, the court

concluded that the defendant’s waiver of his right to judicial review was knowing and

voluntary. Id. at 4. We agree.

                                             IV

       As for Defendant’s other contentions, we are not willing to assume that he failed to

comprehend the significance of the waiver of rights because of his limited education,

especially when the statement of rights was provided in Spanish. Defendant complains

that the INS failed to preserve an adequate record, in violation of 8 U.S.C. §

1228(b)(4)(E). We hold that the record, although sparse, is adequate even without the

Final Administrative Removal Order which should have been included.

       In sum, we hold that Mr. Zalazar has failed to show that the 1997 deportation

proceeding was fundamentally unfair, failed to show that he was prejudiced by any

procedural infirmities, and failed to show that he was improperly deprived of his right of


                                            -11-
judicial review, particularly in light of the presumption of regularity which attaches to a

final deportation order. United States v. Arevalo-Tavares, 210 F.3d at 1200. The record

amply supports the trial judge’s conclusions, and Mr. Zalazar’s challenge to the

underlying removal order fails.



                                              V

       Mr. Zalazar also challenges his sentence, contending that the enhancement of the

sentence on the basis that he had formerly been convicted of an “aggravated felony” as

that term is used in 8 U.S.C. § 1326 violated the principle enunciated by the Supreme

Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the existence of the prior

felony conviction was not alleged in the indictment. Counsel acknowledges that this

argument is foreclosed in this circuit by United States v. Martinez-Villalva, 232 F.3d

1329, 1331-32 (10th Cir. 2000); he is asserting this claim of error to preserve it for

Supreme Court review. In view of our precedent on the issue, we need not address the

argument further.

                                        Conclusion

       The judgment of the district court is AFFIRMED.

                                                         Entered for the Court



                                                         William J. Holloway, Jr.
                                                         Circuit Judge

                                            -12-
