                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2153
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                       Yan Naing

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                            Submitted: February 12, 2016
                                Filed: May 2, 2016
                                  ____________

Before LOKEN, ARNOLD, and BENTON, Circuit Judges.
                           ____________

ARNOLD, Circuit Judge.

       Yan Naing pleaded guilty to one count of failing to depart because he willfully
failed or refused "to make timely application in good faith for travel or other
documents necessary" for his departure after the Board of Immigration Appeals held
that he was removable. See 8 U.S.C. § 1253(a)(1)(B). Naing appeals the district
court's1 denial of his motion to dismiss the indictment, asserting that the deportation
order that was a predicate for the charge against him was invalid. Naing also appeals
the district court's grant of the government's motion in limine precluding him from
raising a coercion defense at trial.

       Naing, a citizen of Burma, entered the United States as a refugee. He later
pleaded guilty in a Kansas state court to aggravated intimidation of a witness or
victim, see Kan. Stat. Ann. § 21–3833 (repealed 2011) (now codified at Kan. Stat.
Ann. § 21–5909(b)), and the government notified him that this conviction was an
"aggravated felony" that rendered him deportable from the United States. See 8
U.S.C. § 1227(a)(2)(A)(iii). After a number of hearings, the immigration judge
determined that Naing was indeed deportable and denied his requests for
discretionary relief. Naing appealed to the BIA, but it agreed with the IJ and
dismissed the appeal. Naing pursued no other administrative or judicial avenues of
relief; instead, he failed, contrary to his legal obligation, to procure the necessary
travel documents needed for his deportation, leading to the government's indictment.

       Naing maintains that he was not subject to a valid final order of removal—an
element of a failure-to-depart charge—because of due-process errors that the IJ
committed in the course of his deportation proceedings. A defendant charged with
violating § 1253(a) may, by a motion in limine in the district court, challenge the
"validity" of his deportation order if, as here, the order has not previously been
judicially reviewed. 8 U.S.C. § 1252(b)(7)(A). It is not usual for courts to call an
order "invalid" unless the entity that rendered it was without jurisdiction to do so or
the order suffered from some other fundamental flaw. We do not ordinarily regard an
order invalid merely because it was erroneous. Nevertheless, the scope of the
challenge that this statute permits has been the subject of some dispute. Some courts


      1
       The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

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have borrowed the standard for collateral attacks used in the similar context of aliens
charged with illegal reentry into the United States. See, e.g., United States v. Ayeni,
66 F. Supp. 2d 617, 621 (M.D. Pa. 1999); see also United States v. Matveyenko, No.
4:12–CR–306 CEJ (NAB), 2013 WL 1090338, at *3 (E.D. Mo. Feb. 28, 2013). Under
that statute, an alien must show that fundamental errors in the deportation proceeding
improperly deprived him of the opportunity for judicial review and that he exhausted
his administrative remedies. 8 U.S.C. § 1326(d). Other courts have intimated that the
scope of the challenge under the statute applicable here is much broader and mirrors
that of a direct review of the entire deportation proceeding. See United States v.
Diabate, No. 15–6042, 2016 WL 1104865, at *2 (6th Cir. Mar. 22, 2016). We need
not resolve the issue because Naing's challenges fail under any standard. We therefore
proceed as if the underlying deportation order is on direct review.

       We review an alien's due-process challenges de novo. Bracic v. Holder, 603
F.3d 1027, 1032 (8th Cir. 2010). To prevail on such a claim, Naing must show that
there was a fundamental procedural error that resulted in prejudice to him; prejudice
arises when "the outcome of the proceeding may well have been different had there
not been any procedural irregularities." Id.

        The first of Naing's contentions is related to his right to counsel at his
deportation proceeding. Although aliens have no Sixth Amendment right to counsel
in immigration proceedings, they do have a statutory right to have counsel represent
them at their own expense under 8 U.S.C. §§ 1229a(b)(4)(A) and 1362. The IJ must
advise the alien of his right to have counsel present, require him "to state then and
there whether he" desires representation, advise him of the availability of local pro
bono legal services, and ensure that he has received a list of pro bono legal-services
providers. 8 C.F.R. § 1240.10(a)(1)–(2). Here, the IJ advised Naing of his right to
counsel during his first immigration hearing and ensured that he received the required
list, and Naing informed the IJ that he wanted an attorney. The IJ recommended
several times at this hearing that Naing speak with an attorney and suggested ways

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to contact one, and the IJ continued the proceedings to allow Naing to hire counsel.
When proceedings resumed more than five weeks later, Naing appeared without an
attorney. The IJ did not question Naing again about his desire for counsel, and Naing
contends that the IJ violated due process by proceeding without an affirmative waiver
of counsel from him.

       We see no fundamental unfairness here. Given the circumstances, the IJ was
justified in assuming that Naing wished to proceed without counsel, that, in other
words, he had waived his right to representation. Naing said nothing at the second
hearing suggesting that he needed more time to obtain counsel. See United States v.
Loaisiga, 104 F.3d 484, 486 (1st Cir. 1997). The IJ advised Naing multiple times of
his right to counsel at the first hearing and provided Naing five weeks to obtain one
and suggestions for how to do so. In short, the IJ did nothing identifiably unfair,
"[a]nd absent some signal from [Naing]—such as a plausible request for a further
delay—we do not think that" the IJ violated due process by proceeding to the merits.
Id.

       Naing's second due-process contention is that the IJ and the BIA failed to
advise him of his right to judicial review, and we see no evidence that they did. The
government points out that the IJ told Naing at least twice that he had a right to
appeal, once advising of a right to appeal "to a higher court." But in the context these
statements are best understood as referring to an appeal to the BIA, not a federal
court, not least because there is no right to direct judicial review of an IJ's order.
Nonetheless, we reject Naing's contention. It is true that we have held that a mere
failure to advise an alien in a deportation proceeding of his right to judicial review
ordinarily precludes the government from later using that deportation proceeding as
a predicate for a criminal offense against him. See United States v. Santos-Vanegas,
878 F.2d 247, 251 (8th Cir. 1989). But in this case Naing can show no resulting
prejudice. See id. The only possibly meritorious argument that Naing has that the IJ
and BIA erred in holding him removable is that the Kansas crime of which he was

                                          -4-
convicted was not an "aggravated felony" that renders him removable under the law.
Naing made this argument to the district court and he makes it again here, but he did
not appeal that issue to the BIA, nor did the BIA rule on it. So that issue would not
have been reviewable had Naing appealed the BIA's order. See Ming Ming Wijono v.
Gonzalez, 439 F.3d 868, 871–72 (8th Cir. 2006). In short, Naing forfeited the point
by failing to raise it before the BIA, and so he could not possibly have obtained any
relief in a federal court on that point. Naing suffered no prejudice from not having
been told of his right to appeal.

       Naing next insists that he was given no reasonable opportunity to examine
evidence against him because he did not receive a translated copy of the 2011 State
Department report on human rights in Burma used to reject his request for deferral
of removal under the Convention Against Torture. See 8 U.S.C. § 1229a(b)(4)(B).
Even if this was error, which we doubt, Naing has not demonstrated how it prejudiced
him. He never explains how he would have rebutted this report or how "the outcome
of the proceeding may well have been different" had he received a translated copy of
it sooner. See Bracic, 603 F.3d at 1032.

      Finally, Naing challenges the district court's grant of the government's motion
in limine precluding him from raising a coercion defense or calling an expert in
support of that defense. We review the district court's denial of a proffered legal
defense de novo, United States v. Diaz, 736 F.3d 1143, 1150 (8th Cir. 2013), and
while we typically review the exclusion of testimony intended to establish an
affirmative defense for abuse of discretion, we review the exclusion de novo where
it was based on the legal insufficiency of an affirmative defense. United States v.
Andrade-Rodriguez, 531 F.3d 721, 723 (8th Cir. 2008) (per curiam).

       A defendant is entitled to a jury instruction on an affirmative defense if he can
demonstrate an "underlying evidentiary foundation" for each of its elements. United
States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005). The evidence of each element

                                          -5-
must be sufficient for a reasonable jury to find in the defendant's favor. Diaz, 736
F.3d at 1149–50.

       A coercion defense requires a defendant to prove, among other things, "that he
had no reasonable, legal alternative to violating the law." Id. at 1150. But Naing in
fact had such alternatives to failing to procure the documents necessary for his
departure. He could have moved the BIA to reconsider or reopen the immigration
proceedings, 8 C.F.R. § 1003.2(b)–(c), petitioned this court for review, 8 U.S.C.
§ 1252(b)(2), or affirmatively designated another country for removal rather than
requesting that he be deported to any country but Burma. 8 U.S.C. § 1231(b)(2)(A)(i).
Because the evidentiary predicate for a successful coercion defense is lacking, the
district court committed no error precluding Naing from raising it.

      Affirmed.
                       ______________________________




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