12-1895-cr
United States v. Mendez-Maldonado


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                    AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of June, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                         Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                           Appellee,

                    v.                                                   No. 12-1895-cr

ISRAEL MENDEZ-MALDONADO,
                         Defendant-Appellant.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                          ANNE M. BURGER, Assistant Federal Public
                                                  Defender, Rochester, New York.

APPEARING FOR APPELLEE:                           STEPHAN BACZYNSKI (Monica J. Richards,
                                                  on the brief), Assistant United States Attorneys,
                                                  for William J. Hochul, Jr., United States Attorney
                                                  for the Western District of New York, Buffalo,
                                                  New York.
       Appeal from the United States District Court for the Western District of New York

(Charles J. Siragusa, Judge; Marian W. Payson, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on May 1, 2012, is AFFIRMED.

       Defendant Israel Mendez-Maldonado appeals his conviction for unlawful reentry

subsequent to his 2001 removal from the United States after conviction for an aggravated

felony. See 8 U.S.C. § 1326(a), (b)(2). Mendez-Maldonado argues that the district court

erred in denying his motion to dismiss the indictment on the ground that he failed to satisfy

the “fundamentally unfair” prong of a collateral challenge to his underlying deportation. See

id. § 1326(d).     We review the challenged denial de novo, see United States v.

Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002), assuming the parties’ familiarity with

the facts and the record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

       To challenge the deportation order underlying an unlawful-reentry charge, an alien

must demonstrate that:

              (1) the alien exhausted any administrative remedies that may have been
              available to seek relief against 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). The district court here assumed, without deciding, that Mendez-

Maldonado satisfied the first two conditions, but concluded that he failed satisfy the third.

We agree.

                                              2
       To demonstrate fundamental unfairness under § 1326(d)(3), an alien must establish

“both a fundamental procedural error and prejudice resulting from that error. In order to

show prejudice, he must show that, absent the procedural errors, he would not have been

removed.” United States v. Fernandez-Antonia, 278 F.3d at 159. Mendez-Maldonado

contends that he carried this burden because, but for procedural errors in his 2001 removal,

he could have obtained a waiver of inadmissibility pursuant to § 212(h) of the Immigration

and Nationality Act, codified at 8 U.S.C. § 1182(h).

       The argument fails for two reasons. First, Mendez-Maldonado was removed pursuant

to expedited administrative proceedings, making him ineligible for the discretionary relief

that he claims he was denied a chance to obtain. See id. § 1228 (providing for expedited

removal of aliens who are not lawful permanent residents of the United States and who have

been convicted of aggravated felonies); id. § 1228(b)(5) (“No alien described in this section

shall be eligible for any relief from removal that the Attorney General may grant in the

Attorney General’s discretion.”); Jankowski-Burczyk v. I.N.S., 291 F.3d 172, 179 (2d Cir.

2002) (noting that alien removed pursuant to § 1228 “is categorically barred from receiving

any form of discretionary relief—including relief under § 212(h)” (emphasis added)).1




       1
         At oral argument, Mendez-Maldonado suggested that absent the alleged procedural
errors, the Attorney General might have transferred him from proceedings under § 1228 to
proceedings under § 1229, thus enabling him to seek § 212(h) relief. Even assuming the
validity of this argument, Mendez-Maldonado’s position that he would have obtained
§ 212(h) relief fails for the reasons discussed below in the text.

                                             3
       Second, even if Mendez-Maldonado were eligible for § 212(h) relief, he has failed to

demonstrate that his inadmissibility would have been waived based on “extreme hardship”

to his mother, 8 U.S.C. § 1182(h)(1)(B), let alone the “outstanding offsetting inequities” that

were required when such relief was sought by an alien whose removal was based on

conviction for a serious crime, Samuels v. Chertoff, 550 F.3d 252, 259 (2d Cir. 2008). In

urging otherwise, Mendez-Maldonado submits that, after his removal, his mother abused

alcohol to deal with his absence. Notably, these circumstances were reported only by

Mendez-Maldonado’s brother; his mother chose not to submit an affidavit. The severing of

family ties in situations where family members have endured prolonged, traumatic abuse

may present exceptional hardship so as to warrant relief from removal in certain instances,

but documentation of such victimization—absent here—is required.

       Because Mendez-Maldonado cannot show fundamental unfairness in his 2001

deportation, see 8 U.S.C. § 1326(d), we identify no error in the district court’s denial of his

motion to dismiss the indictment charging him with illegal reentry. The judgment of the

district court is hereby AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




                                              4
