                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3477
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Jose Mendez-Morales,                     *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: May 13, 2004
                                  Filed: October 6, 2004
                                   ___________

Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,* District Judge.
                              ___________

LOKEN, Chief Judge.

       In 1992, a state court jury convicted Jose Mendez-Morales of first degree
sexual assault of a minor. At subsequent deportation proceedings, Mendez-Morales
conceded deportability and sought adjustment of status and a waiver of
inadmissibility. See 8 U.S.C. §§ 1182(h), 1255(a) (1994). The immigration judge
ruled that Mendez-Morales was eligible for this relief but the equities did not merit
a favorable exercise of the agency’s discretion. The Board of Immigration Appeals
dismissed an administrative appeal, and Mendez-Morales petitioned this court for

      *
      The HONORABLE RICHARD E. DORR, United States District Judge for the
Western District of Missouri, sitting by designation.
judicial review. We dismissed the appeal because his offense was an “aggravated
felony” for purposes of 8 U.S.C. § 1101(a)(43) and 8 U.S.C. § 1251(a)(2)(A)(iii), and
therefore 8 U.S.C. § 1105a deprived us of jurisdiction. Mendez-Morales v. INS, 119
F.3d 738, 739 (8th Cir. 1997). Mendez-Morales did not seek certiorari review of our
decision nor petition the appropriate district court for habeas corpus relief.

       After his removal to Mexico, Mendez-Morales returned to this country without
permission and was charged with illegal reentry following deportation in violation of
8 U.S.C. § 1326(a) and (b)(2). He moved to dismiss the indictment. Relying on
United States v. Mendoza-Lopez, 481 U.S. 828 (1987), and the statute that essentially
codified that decision, 8 U.S.C. § 1326(d), Mendez-Morales argued that the
government could not base a § 1326 conviction on the administrative deportation
order because our court refused to review the merits of that order. The district court1
denied the motion, concluding that no procedural defect in the administrative
proceedings deprived Mendez-Morales of judicial review, our dismissal of the prior
appeal was not part of “the deportation proceedings,” and entry of the deportation
order was not “fundamentally unfair” as Mendez-Morales failed to establish the
requisite prejudice. A jury then convicted Mendez-Morales of illegal reentry, and the
court sentenced him to 57 months in prison. He appeals, renewing his attack on the
government’s use of the underlying deportation order. We affirm.

      In an illegal reentry prosecution, the government must prove that the alien was
removed or departed the United States “while an order of exclusion, deportation, or
removal is outstanding.” 8 U.S.C. § 1326(a)(1). A deportation order is the product
of a civil administrative proceeding. In Mendoza-Lopez, this court affirmed the
dismissal of a § 1326 indictment because the defendants “were not accorded due
process at the deportation hearing.” 781 F.2d 111, 113 (8th Cir. 1985). A sharply


      1
       The HONORABLE WARREN K. URBOM, United States District Judge for
the District of Nebraska.

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divided Supreme Court affirmed on a somewhat different ground. Noting that § 1326
does not require proof that a deportation order was lawfully entered, the Court
nonetheless held that the government may not rely on the order to support a § 1326
conviction if “fundamental procedural defects of the deportation hearing” deprived
the aliens of “their rights to appeal.” Mendoza-Lopez, 481 U.S. at 841-42. The Court
declined “to enumerate which procedural errors are so fundamental that they may
functionally deprive the alien of judicial review.” Id. at 839 n.17. Following this
decision, Congress amended the statute to define when a prior deportation order may
be collaterally attacked in a § 1326 prosecution:

      (d) Limitation on collateral attack on underlying deportation order

            In a criminal proceeding under this section, an alien may not
      challenge the validity of the deportation order . . . 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 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.

Consistent with the limitations in § 1326(d), we construe Mendoza-Lopez as barring
use of a prior deportation order in a § 1326 prosecution when “(1) an error in the
deportation proceedings rendered the proceedings fundamentally unfair in violation
of due process, and (2) the error functionally deprived the alien of the right to judicial
review.” United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995).




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       1. On appeal, Mendez-Morales first raises a contention not clearly presented
to the district court. Recognizing that Mendoza-Lopez is “not exactly on point”
because in this case the statute, not a defect in the administrative proceedings,
deprived him of judicial review of the deportation order, Mendez-Morales argues that
the absence of judicial review precludes the government from relying on the
deportation order in this prosecution, regardless of prejudice. The argument is based
upon a literal reading of broad dicta that preceded the majority’s analysis in
Mendoza-Lopez:

             Our cases establish 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 proceeding. See Estep v. United States, 327 U.S.
      114, 121-22 (1946); Yakus v. United States, 321 U.S. 414, 444 (1944);
      cf. McKart v. United States, 395 U.S. 185, 196-97 (1969).

481 U.S. at 837-38. However, the cases cited in this passage do not support Mendez-
Morales’s argument. In Estep, though the statute provided that draft board orders
“are final even though they may be erroneous,” the Court held that an order could be
collaterally attacked if the board acted beyond its jurisdiction. 327 U.S. at 122-23.
Here, on the other hand, the BIA clearly acted within its authority in denying
Mendez-Morales discretionary relief from deportation. Yakus cuts against Mendez-
Morales’s argument: the Court held that Congress may “mak[e] criminal the violation
of an administrative regulation . . . [and] commit[] the determination of the issue of
its validity to the agency which created it.” 321 U.S. at 444. And McKart is off point
-- the Court excused a failure to exhaust administrative remedies that ended with
judicial review. 395 U.S. at 187, 203. Failure to exhaust is not an issue in this case.

       We share the Supreme Court’s concern with a regulatory regime that makes an
administrative order not subject to judicial review conclusive proof of an element of
the crime in a subsequent criminal prosecution. See generally United States v.

                                         -4-
Spector, 343 U.S. 169, 177-79 (1952) (Jackson, J., dissenting). Here, Congress has
eliminated direct judicial review of some deportation orders entered after civil
administrative proceedings; the Due Process Clause does not bar that. See INS v. St.
Cyr, 533 U.S. 289, 345-46 (2001) (Scalia, J., dissenting). The criminal statute then
allows a collateral attack on only some of the deportation orders not subject to
judicial review, those orders resulting from “deportation proceedings [that]
improperly deprived the alien of the opportunity for judicial review.” 8 U.S.C.
§ 1326(d)(2). Though that limitation tracks the Supreme Court’s decision in
Mendoza-Lopez, we think the Court might well extend the constitutional principle
recognized in Mendoza-Lopez to § 1326 prosecutions in which judicial review of the
deportation order was barred by statute. However, absent a due process deprivation
by the agency,2 we conclude the Court would not automatically bar the § 1326
prosecution. Rather, it would require that “an alternative means of obtaining judicial
review must be made available before the [deportation] order may be used to establish
conclusively an element of a [§ 1326] criminal offense.” Mendoza-Lopez, 481 U.S.
at 838.

       One such alternative means would be a petition for a writ of habeas corpus, a
remedy Mendez-Morales did not pursue. See Calcano-Martinez v. INS, 533 U.S.
348, 351-52 (2001). Assuming his failure to seek habeas relief does not give rise to
a procedural bar, the district court in the subsequent § 1326 prosecution may cure any
due process concern over the lack of direct judicial review by reviewing the merits
of the deportation order prior to its use in the criminal trial, adopting the standard of
review applied by this court when we review a comparable deportation order. See
Mendoza-Lopez, 481 U.S. at 839.


      2
       “Deprivation of judicial review does not equate to a fundamentally unfair
administrative hearing. Rather . . . fundamental fairness and judicial review are
separate elements under Mendoza-Lopez and § 1326(d).” United States v. Wilson,
316 F.3d 506, 515 (4th Cir. 2003) (Motz, J., concurring).

                                          -5-
       When the statute provides for judicial review, we review the BIA’s
discretionary denial of a waiver of inadmissibility for abuse of discretion. “The BIA
has abused its discretion if the decision is without rational explanation, departs from
established policies, or individually discriminates against a particular race or group.”
Izedonmwen v. INS, 37 F.3d 416, 418 (8th Cir. 1994) (quotation omitted). In this
case, Mendez-Morales was convicted by a Nebraska jury of first degree sexual assault
of a thirteen-year-old victim. During a pretrial polygraph examination, he admitted
having sexual intercourse with the victim. But at his deportation hearing, he denied
having sexual intercourse, asserting that the polygraph examiner had moved the
polygraph needles with his fingers to compel incriminating responses. The
immigration judge found this testimony not credible. Though the immigration judge
and the BIA found that Mendez-Morales was eligible for adjustment of status and a
waiver of inadmissibility because deportation would cause extreme hardship to his
family, they denied this discretionary relief because the crime was serious and
Mendez-Morales appeared to blame the victim instead of showing remorse and
rehabilitation. Mendez-Morales asserts that the BIA gave too much weight to the
seriousness of his crime and his lack of remorse and rehabilitation. But it is the BIA’s
task to weigh the relevant factors and exercise its discretion. The reviewing court’s
task is only to ensure that discretion was in fact exercised and was not exercised in
an arbitrary and capricious manner. See Izedonmwen, 37 F.3d at 418; Palmer v. INS,
4 F.3d 482, 486 (7th Cir. 1993). Thus, affording Mendez-Morales a belated appeal
from the BIA’s deportation order that now underlies his § 1326 prosecution, we
conclude that he cannot show an abuse of the BIA’s discretion and thus is entitled to
no relief from his § 1326 conviction.

       2. Alternatively, returning to the Mendoza-Lopez analysis, Mendez-Morales
next argues that his deportation proceedings were fundamentally unfair because the
immigration judge and the BIA improperly weighed the equities of his claim for
discretionary relief, and we denied him judicial review of the merits of that claim. He
argues that, if he must show prejudice from the absence of judicial review, he need

                                          -6-
only show that he “might have won” his prior appeal. He further argues that the
absence of judicial review of the deportation order may not be cured in a § 1326
criminal proceeding. His brief succinctly summarizes the contention: “No judicial
review, no prosecution.”

       Like other circuits, we have consistently held that “an error cannot render a
proceeding fundamentally unfair unless that error resulted in prejudice.” Torres-
Sanchez, 68 F.3d at 230, citing United States v. Polanco-Gomez, 841 F.2d 235, 237
(8th Cir. 1988); see United States v. Loaisiga, 104 F.3d 484, 487 & n.2 (1st Cir.)
(collecting cases), cert. denied, 520 U.S. 1271 (1997). Prejudice in this context
means “a reasonable likelihood that but for the errors complained of the defendant
would not have been deported.” United States v. Perez-Ponce, 62 F.3d 1120, 1122
(8th Cir. 1995) (quotation omitted). Thus, we reject Mendez-Morales’s contentions
that prejudice need not be shown or may be presumed because he might have won his
prior appeal had we considered the deportation order on the merits. Rather, as the
district court recognized, under the prejudice component of the Mendoza-Lopez
doctrine we must look at the probable merit of that prior appeal. As we have
explained, Mendez-Morales cannot show that the BIA abused its discretion in
entering the deportation order. Therefore, he “would have had no chance of winning
an appeal” and cannot demonstrate the prejudice required to prove that the
deportation proceedings were fundamentally unfair under Mendoza-Lopez. Perez-
Ponce, 62 F.3d at 1122 (quotation omitted).

      The judgment of the district court is affirmed.
                     ______________________________




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