     Case: 10-50874     Document: 00511770134         Page: 1     Date Filed: 02/28/2012




               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                         February 28, 2012
                                       No. 10-50874                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JEZIEL LARA-ALBERTO, a/k/a Danniel Franco, a/k/a Abner Lara-Palacios,
a/k/a Arnold Jeziel,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:10-CR-64


Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
         Appellant Jeziel Lara-Alberto appeals his conditional guilty plea felony
conviction for illegal reentry in violation of 8 U.S.C. § 1326, collaterally attacking
his original and underlying in absentia removal proceedings by arguing that
those proceedings violated his due process rights. As we previously have set
forth,




         *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                        No. 10-50874

               In order successfully to collaterally attack a deportation
               order in a § 1326 prosecution, the alien must show (1)
               that the deportation hearing was fundamentally unfair,
               (2) that the hearing effectively eliminated the right of
               the alien to challenge the hearing by means of judicial
               review of the deportation, and (3) the procedural
               deficiencies caused him actual prejudice.

United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999) (citations
omitted).1 “The law is clearly established that a showing of actual prejudice is
required to succeed in such a collateral attack.” Id. (citations omitted). “A
showing of prejudice means ‘there was a reasonable likelihood that but for the
errors complained of the defendant would not have been deported.’” Id. at 658-59
(quoting United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995)).
       Lara-Alberto contends that despite having been advised by the
immigration court of his right to file a motion to reopen his deportation hearing,
for which he had failed to appear, USCA5 80, the government’s later
communication to him, instructing him to report for deportation, contained a
misrepresentation that he was ineligible for “administrative relief,” hence
constructively denied him the right to file a motion to reopen the proceedings
based on “exceptional circumstances.” See 8 U.S.C. § 1229a(b)(5)(C)(i) (allowing
for rescission of an in absentia removal order “upon a motion to reopen filed
within 180 days after the date of the order of removal if the alien demonstrates
that the failure to appear was because of exceptional circumstances . . . .”).2

       1
         Lara-Alberto and the government both argue that Lara-Alberto’s arguments with
respect to the first prong are foreclosed by United States v. Lopez-Ortiz, 313 F.3d 225, 229-31
(5th Cir. 2002), which held that eligibility for discretionary relief is not a liberty or property
interest warranting due process protection and, therefore, the failure of an immigration judge
to explain an alien’s eligibility for such relief does not render the proceedings fundamentally
unfair. As discussed infra, because no showing of actual prejudice has been made, we do not
need to apply our Lopez-Ortiz decision to this case.
       2
        Exceptional circumstances are statutorily defined as “exceptional circumstances (such
as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of

                                                2
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                                       No. 10-50874

However, at the hearing on his motion to dismiss the indictment, Lara-Alberto
did not argue, and did not offer any evidence demonstrating, that exceptional
circumstances existed.3 Accordingly, the district court did not clearly err in
finding that Lara-Alberto did not suffer actual prejudice as a result of the
government’s misrepresentation. Absent a showing of prejudice resulting from
the alleged denial of due process rights, Lara-Alberto’s challenge to the
indictment fails. See United States v. Villanueva-Diaz, 634 F.3d 844, 852 (5th
Cir. 2011).
       The judgment is AFFIRMED; nothing else open made to justice, all
outstanding motions are denied as moot.




the alien, or serious illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances) beyond the control of the alien.” 8 U.S.C. §
1229a(e)(1).
       3
           Instead, Lara-Alberto asks this court to infer the existence of exceptional
circumstances based on his representation that at the time of his scheduled removal hearing,
he was a minor in the care of his older brother, living 300 miles away from the site of the
hearing. Appellant’s Br. 17. Even if such circumstances were to qualify as “exceptional” as
defined in § 1229a(e)(1), the assertion is unsupported by any evidence and is waived because
Lara-Alberto never raised it before the district court. See Nunez v. Allstate Ins. Co., 604 F.3d
840, 846 (5th Cir. 2010) (“An argument not raised before the district court cannot be asserted
for the first time on appeal.”) (internal quotation marks and citations omitted).

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