IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-50918

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL LOPEZ-VASQUEZ, also known as

Carlos Gonzalez-Gonzalez,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Western District of Texas

 

September 15, 2000

ON PETITION FOR REHEARING

(Opinion August 16, 2000, 5th Cir., 2000, ___F.3d___)

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

IT IS ORDERED that the petition for rehearing is overruled and the

opinion previously issued herein August 16, 2000 is withdrawn in its

entirety and the following is substituted therefore.

Defendant-appellant Juan Manuel Lopez-Vasquez (Lopez-Vasquez)

appeals his conviction of one count of illegally entering the United

States, after having been previously excluded, deported or removed

therefrom, without having obtained the Attorney General’s consent, in
1 Because the removal proceedings against Lopez-Vasquez commenced

in June 1998, the permanent provisions of the Illegal Immigration and

Reform and Immigrant Responsibility Act of 1996 (IIRIRA) were in effect,

including IIRIRA § 302(b)(1)(A)(i), now codified at 8 U.S.C. §

1225(b)(1)(A)(i). See Lopez-Elias v. Reno, 209 F.3d 788, 790 n.1 (5th

Cir. 2000) (stating that proceedings commenced after April 1, 1997 are

governed by IIRIRA’s permanent provisions). Under § 1225(b)(1)(A)(i),

if an INS inspector determines during secondary inspection that an alien

who is seeking entry into the United States at a port of entry is

inadmissible because the alien has made a false claim of United States

citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), the inspector “shall

order the alien removed from the United States without further hearing

or review unless the alien indicates either an intention to apply for

asylum under [8 U.S.C.] § 1158 . . . or a fear of prosecution.” 8

U.S.C. § 1225(b)(1)(A)(i). During his secondary inspection, Lopez2

violation of 8 U.S.C. § 1326. He challenges the denial of his motion

to dismiss the indictment or to suppress the evidence of his previous

removal from the United States. Concluding that the district court

properly denied Lopez-Vasquez’s motion, we affirm.

Facts and Proceedings Below

On June 6, 1998, Lopez-Vasquez attempted to cross the border from

Mexico into the United States at the Paso del Norte Port of Entry in El

Paso, Texas, by declaring himself to be a United States citizen. When

he was unable to supply proof of United States citizenship, LopezVasquez was referred to a secondary inspection area for further

interview. There, Lopez-Vasquez admitted to the Immigration and

Naturalization Service (INS) inspectors that he was not a United

States citizen, but rather, a Mexican citizen. The INS inspectors

determined Lopez-Vasquez to be ineligible for admission into the

United States and, pursuant to 8 U.S.C. § 1225(b)(1)(A)(i)1, placed
Vasquez declared in a sworn statement that he had no fear of returning

to Mexico and did not seek asylum (nor since then has he ever claimed

that this declaration was not correct).

2 Before IIRIRA’s enactment in 1996, individuals such as LopezVasquez who were ineligible for admission into the United States and

were never admitted into the United States were referred to as

“excludable,” while aliens who had gained admission, but later became

subject to expulsion from the United States, were referred to as

“deportable.” See 8 U.S.C. §§ 1182, 1251 (1994); see also Landon v.

Plasencia, 103 S.Ct. 321, 325 (1982) (“The deportation hearing is the

usual means of proceeding against an alien already physically in the

United States, and the exclusion hearing is the usual means of

proceeding against an alien outside the United States seeking

admission.”). Excludable aliens are now referred to as “inadmissible.”

See 8 U.S.C. § 1182. As many of the cases we discuss in resolving this

appeal were decided before 1996, we will use the terms “inadmissible”

and “excludable” interchangeably. In addition, the IIRIRA has “‘d[one]

away with the previous legal distinction among deportation, removal, and

exclusion proceedings.’” United States v. Pena-Renovato, 168 F.3d 163,

164 (5th Cir. 1999) (quoting United States v. Pantin, 155 F.3d 91, 92

(2d Cir. 1998), cert. denied, 119 S.Ct. 835 (1999)); see IIRIRA § 304

(codified at 8 U.S.C. §§ 1229-1229c). Now, the term “removal

proceedings” refers to proceedings applicable to both inadmissible and

deportable aliens. See 8 U.S.C. § 1229a(e)(2). 

3

him in “expedited removal proceedings” and ordered him removed2

from the United States that day. Accordingly, Lopez-Vasquez was

never admitted into the United States. Before Lopez-Vasquez’s

departure from the secondary inspection area, the INS inspectors

provided him with a form stating that: (1) he was ineligible for

admission to the United States because he had made a false claim of

United States citizenship; (2) he was prohibited from thereafter

entering or attempting to enter the United States for a period of

five years without first obtaining the consent of the Attorney

General to reapply for admission; and (3) 8 U.S.C. § 1326 makes it

a crime punishable by a fine and/or imprisonment for a period of up
3 8 U.S.C. § 1229c(a) states as follows:

“The Attorney General may permit an alien voluntarily

to depart the United States at the alien’s own expense under

this subsection, in lieu of being subject to proceedings

under section 1229a of this title or prior to the completion

of such proceedings, if the alien is not deportable under

section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this

title.” 

4

to twenty years for him to thereafter enter, attempt to enter, or

be found in the United States without such consent.

On December 13, 1998, Lopez-Vasquez was found in El Paso,

Texas by United States Border Patrol agents. The agents arrested

Lopez-Vasquez when he could not provide documentation authorizing

him to be present in the United States. It was later discovered

that Lopez-Vasquez had previously been ordered removed from the

United States and had not received the Attorney General’s consent

to re-apply for admission into the United States, and he was

indicted for illegally entering the United States, in violation of

8 U.S.C. § 1326. Before trial, Lopez-Vasquez moved to dismiss the

indictment or to suppress evidence of his June 1998 exclusion and

removal, based on his assertion that, because the procedures used

to remove him violated due process and were not subject to judicial

review, his June 1998 removal order may not be used as evidence

against him in his criminal prosecution for illegal entry. In

addition, Lopez-Vasquez contended that if he had been afforded due

process, he could have avoided removal because he would have been

informed that he could have applied for voluntary departure under

8 U.S.C. § 1229c3 or withdrawn his application for admission under
4 8 U.S.C. § 1225(a)(4) provides that “[a]n alien applying for

admission may, in the discretion of the Attorney General and at any

time, be permitted to withdraw the application for admission and depart

immediately from the United States.”

5 8 U.S.C. § 1229c(c) states that “[t]he Attorney General shall

not permit an alien to depart voluntarily under this section if the

alien was previously permitted to so depart after having been found

inadmissible under section 1182(a)(6)(A) of this title.”

5

8 U.S.C. § 1225(a)(4)4. Lopez-Vasquez, however, has never claimed

that the INS erred in finding him inadmissible for having falsely

claimed to be a United States citizen in attempting to enter the

United States on June 6, 1998. 

The district court denied Lopez-Vasquez’s motion to dismiss or

to suppress, noting that in order to successfully challenge the use

of his June 1998 removal order in his section 1326 illegal entry

prosecution, Lopez-Vasquez must establish both that his removal was

not subject to judicial review and that it was fundamentally

unfair in a manner that caused him prejudice. In denying LopezVasquez’s motion, the district court focused on Lopez-Vasquez’s

failure to prove prejudice. With regard to Lopez-Vasquez’s claim

that he could have applied for voluntary departure, the district

court found no prejudice because the Government had established

that Lopez-Vasquez would not have been allowed to depart

voluntarily because he had previously been granted a voluntary

departure on March 29, 1997. See 8 U.S.C. § 1229c(c)5. As to

Lopez-Vasquez’s assertion that he could have withdrawn his

application for admission, thereby avoiding removal, the district
6 On November 6, 1997, Lopez-Vasquez pleaded guilty in Texas state

court to the offense of unauthorized use of a vehicle and was sentenced

to two years’ community supervision. Texas law describes unauthorized

use a vehicle as follows:

“(a) A person commits an offense if he intentionally or

knowingly operates another’s boat, airplane, or motorpropelled vehicle without the effective consent of the owner.

(b) An offense under this section is a state jail

felony.” TEXAS PENAL CODE § 31.07

6

court likewise held there was no prejudice, finding that this

relief was purely discretionary and that, under applicable INS

policies, Lopez-Vasquez would not have been granted such relief

because he had previously been convicted of a criminal

offense–unauthorized use of a vehicle6. Based on these

conclusions, the district court determined that because LopezVasquez could not establish any prejudice that resulted from the

procedures used to remove him, he could not show that his removal

was fundamentally unfair. Therefore, the district court ruled that

Lopez-Vasquez’s June 1998 removal order could serve as an element

of his prosecution for illegal entry under 8 U.S.C. § 1326.

Lopez-Vasquez then moved for reconsideration of the denial of

his motion, asserting that the case law did not require him to

prove that he probably suffered prejudice, instead claiming only a

showing of the possibility prejudice was necessary. He also

contended that in June 1998 he was entitled to a future visa based

on his having an immediate relative, his father, who was a lawful
7 Curiously, in his June 6, 1998 sworn statement to an INS

inspector, Lopez-Vasquez declared that neither of his parents had ever

legally immigrated to the United States. Nor did Lopez-Vasquez inform

the INS inspector that he was entitled to a visa or had a pending visa

application. 

8 After the district court denied Lopez-Vasquez’s due process

motion, the presentence report concluded that Lopez-Vasquez’s prior

conviction was a felony, but not an aggravated felony, and the district

court adopted the report’s recommendation. Although deciding this issue

is unnecessary for our resolution of this case, it is likely that the

presentence report’s characterization of Lopez-Vasquez’s status was

correct. This Court has held that “the unauthorized use of [a] motor

vehicle . . . qualifies as a crime of violence under 18 U.S.C. § 16.”

United States v. Galvan-Rodriguez, 169 F.3d 217, 220 (5th Cir. 1999)

(per curiam). A crime of violence qualifies as an aggravated felony for

purposes of sentencing under U.S.S.G. § 2L1.2 if the crime was punished

by imposition of a sentence of imprisonment of at least one year.

Probationary sentences do not qualify as an imposition of a sentence of

imprisonment under the requirements of § 2L1.2, see United States v.

Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997), although sentences

that are imposed and then suspended or deferred may so qualify. See

Galvan-Rodriguez, 169 F.3d at 218-19.

7

permanent resident of the United States7, and therefore would not

have been removed if the removal procedures were not so lacking in

procedural fairness. Moreover, he maintained that his prior

conviction for unauthorized use of a vehicle was not an aggravated

felony or a crime of violence and thus did not disqualify him from

either withdrawing his application for admission or receiving

relief based on his entitlement to a visa. In response, the

Government contended that Lopez-Vasquez was not eligible for a visa

and, even if he had obtained one, his status as an aggravated

felon, based on his conviction of unauthorized use of a vehicle8,

would have precluded his entry under it. The district court

carried Lopez-Vasquez’s motion for reconsideration to trial. 
9 8 U.S.C. § 1225(b)(1)(D) provides:

“In any action brought against an alien under section

1325(a) of this title or section 1326 of this title, the

court shall not have jurisdiction to hear any claim attacking

the validity of an order of removal entered under

subparagraph (A)(i) or (B)(iii).”

8

Lopez-Vasquez waived his right to a jury trial and stipulated

to the following facts: (1) he was an alien; (2) he was removed

from the United States in an INS administrative proceeding on June

6, 1998; (3) he was found in the United States on or about December

13, 1998; and (4) he had not received the Attorney General’s

consent to reapply for admission into the United States since his

June 1998 removal and prior to his having been found in the United

States on or about December 13, 1998. After a bench trial, the

district court denied Lopez-Vasquez’s motion for reconsideration of

his motion to dismiss and/or to suppress and found him guilty of

the offense of illegal entry contrary to section 1326. The

district court sentenced Lopez-Vasquez to ten months’ imprisonment

and two years’ non-reporting supervised release. Lopez-Vasquez

timely appealed to this Court. 

Discussion

Lopez-Vasquez contends that the district court erred in denying his

motion to dismiss or to suppress. Lopez-Vasquez asserts that the

removal procedures did not provide for judicial review of his removal

and, in fact, 8 U.S.C. § 1225(b)(1)(D)9 strips the district court and

this Court of jurisdiction to consider whether his removal violated due
10 8 U.S.C. § 1326 states:

“(a) Subject to subsection (b) of this section, any

alien who–

(1) has been denied admission, excluded, deported,

or removed or has departed the United States while an

order of exclusion, deportation, or removal is

outstanding, and thereafter

(2) enters, attempts to enter, or is at any time

found in, the United States, unless (A) prior to his

reembarkation at a place outside the United States or

his application for admission from foreign contiguous

territory, the Attorney General has expressly consented

to such alien’s reapplying for admission; or (B) with

respect to an alien previously denied admission and

removed, unless such alien shall establish that he was

not required to obtain such advance consent under this

chapter or any prior Act,

shall be fined under Title 18, or imprisoned not more than

2 years, or both.

(b) Notwithstanding subsection (a) of this section, in

the case of any alien described in such subsection–

(1) whose removal was subsequent to a conviction

for commission of three or more misdemeanors involving

drugs, crimes against the person, or both, or a felony

(other than an aggravated felony), such alien shall be

fined under Title 18, imprisoned not more than 10

years, or both;

(2) whose removal was subsequent to a conviction

for commission of an aggravated felony, such alien

shall be fined under such Title, imprisoned not more

than 20 years, or both;

(3) who has been excluded from the United States

pursuant to section 1225(c) of this title because the

alien was excludable under section 1182(a)(3)(B) of

this title or who has been removed from the United

States pursuant to the provisions of subchapter V of

this chapter, and who thereafter, without the

permission of the Attorney General, enters the United

9

process and caused him prejudice. Lopez-Vasquez argues that this

complete lack of judicial review, including any to determine whether

there was prejudice, makes it unconstitutional to permit his June 1998

removal to be used as an element of his instant conviction for violating

8 U.S.C. § 1326 1 0 . 
States, or attempts to do so, shall be fined under

Title 18 and imprisoned for a period of 10 years, which

sentence shall not run concurrently with any other

sentence[;] or

(4) who was removed from the United States

pursuant to section 1231(a)(4)(B) of this title who

thereafter, without the permission of the Attorney

General, enters, attempts to enter, or is at any time

found in, the United States (unless the Attorney

General has expressly consented to such alien’s

reentry) shall be fined under Title 18, imprisoned for

not more than 10 years, or both.

For the purposes of this subsection, the term ‘removal’

includes any agreement in which an alien stipulates to

removal during (or not during) a criminal trial under either

Federal or State law.

(c) Any alien deported pursuant to section 1252(h)(2)

of this title who enters, attempts to enter, or is at any

time found in, the United States (unless the Attorney General

has expressly consented to such alien’s reentry) shall be

incarcerated for the remainder of the sentence of

imprisonment which was pending at the time of deportation

without any reduction for parole or supervised release. Such

alien shall be subject to such other penalties relating to

the reentry of deported aliens as may be available under this

section or any other provision of law.

(d) 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 which the order

was issued improperly deprived the alien of the

opportunity for judicial reviews and

(3) the entry of the order was fundamentally

unfair.”

11 The Government contends that we should review the district

court’s denial of Lopez-Vasquez’s motion to dismiss for plain error

10

We review Lopez-Vasquez’s constitutional challenge de novo. See United

States v. Sierra-Hernandez, 192 F.3d 501, 503 (5th Cir. 1999), cert.

denied, 120 S.Ct. 1213 (2000).11
only, because Lopez-Vasquez did not raise the contention he now urges

in the court below. Despite conceding that he did not cite to the

district court the statute, 8 U.S.C. § 1225(b)(1)(D), Lopez-Vasquez now

claims that it stripped the district court of jurisdiction to review his

removal and that our consideration of this issue is not limited to plain

error. Determining the appropriate standard of review is further

complicated by the fact that Lopez-Vasquez’s argument implicates the

jurisdiction of the federal courts–an issue that “cannot be waived and

can be raised at any time.” Barnes v. Levitt, 118 F.3d 404, 410 (5th

Cir. 1997); see Ruhrgas AG v. Marathon Oil Co., 119 S.Ct. 1563, 1570

(1999) (“[S]ubject-matter delineations must be policed by the courts on

their own initiative even at the highest level.”). Because we conclude

that the district court’s denial of Lopez-Vasquez’s motion was correct

under either standard of review, we decline to choose between them. We

therefore assume, without deciding, that Lopez-Vasquez adequately

preserved this ground of error for appellate review. 

12 The two defendants, along with eleven other persons, were

deported in the same proceeding.

11

Lopez-Vasquez principally relies on the Supreme Court’s decision

in United States v. Mendoza-Lopez, 107 S.Ct. 2148 (1987). In MendozaLopez, the Court considered the use of prior deportation orders in the

criminal prosecution of two aliens for illegal reentry, in violation of

8 U.S.C. § 1326. See id. at 2150-51. Before the district court, the

defendants moved to dismiss the indictment against them on the basis

that their prior deportation hearing12 was rendered fundamentally unfair

by the immigration judge’s inadequately informing them of their right

to counsel at the hearing and accepting their unknowing waivers of their

right to apply for suspension of deportation. See id. at 2151. The

district court agreed and dismissed the indictments, concluding that the

defendants’ lack of understanding of their rights to apply for

suspension of deportation or their rights to appeal their deportation

orders rendered their prior deportation proceeding fundamentally unfair.
12

See id. at 2152. The Court of Appeals affirmed, determining first that

a defendant prosecuted under section 1326 could collaterally attack a

prior deportation order and second that these defendants’ deportation

hearings were fundamentally unfair and, thus, the resulting deportation

orders could not form the basis of the section 1326 charges against

them. See id. 

The Government sought review by the Supreme Court, arguing that a

collateral attack of an underlying deportation order was neither

authorized in a section 1326 prosecution nor required under the

Constitution for the order to serve as an element of a section 1326

prosecution and conviction for illegal reentry. In doing so, the

Government did not challenge the lower courts’ findings “that the

deportation proceeding in th[e] case was fundamentally unfair and that

the deportation order was therefore unlawful.” Id. at 2153 n.8; see

also id. at 2156 (“The United States has asked this Court to assume that

[defendants’] deportation hearing was fundamentally unfair in

considering whether collateral attack on the hearing may be permitted.

We consequently accept the legal conclusions of the court below that the

deportation hearing violated due process.”) (internal citation omitted).

With regard to the Government’s contention that section 1326 did not

itself authorize the underlying deportation order and proceeding to be

collaterally attacked in a section 1326 prosecution, the Court agreed.

See id. at 2154 (“Congress did not intend the validity of the

deportation order to be contestable in a § 1326 prosecution . . ..”).
13 The majority of our sister circuits agree with our

interpretation of Lopez-Mendoza. See, e.g., United States v. LaraAceves, 183 F.3d 1007, 1010 (9th Cir. 1999); United States v.

Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998); United States v.

Parades-Batista, 140 F.3d 367, 378 (2d Cir.), cert. denied, 119 S.Ct.

143 (1998); United States v. Loaisiga, 104 F.3d 484, 487 (1st Cir.

1997); United States v. Perez-Ponce, 62 F.3d 1120, 1122 (8th Cir. 1995);

United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994);

Figeroa v. U.S. INS, 886 F.2d 76, 78 (4th Cir. 1989); United States v.

Holland, 876 F.2d 1533, 1537 (11th Cir. 1989).

13

However, the Court also concluded that, in the absence of effective

judicial review, the deportation proceeding and order, which suffered

from fundamental unfairness, “may not be used to support a criminal

conviction.” Id. at 2157. Accordingly, the Court affirmed the

dismissal of the indictments.

This Court, interpreting Mendoza-Lopez, has formulated three

distinct but related requirements that must be met by an alien wishing

to challenge the use of a prior deportation order, or in this case a

removal order, in a prosecution for illegal entry under 8 U.S.C. § 1326:

the alien must establish that (1) the prior hearing was “fundamentally

unfair”; (2) the hearing effectively eliminated the right of the alien

to challenge the hearing by means of judicial review of the order; and

(3) the procedural deficiencies caused the alien actual prejudice. See

United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999);

United States v. Asibor, 109 F.3d 1023, 1038 (5th Cir. 1997); United

States v. Estada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995); United

States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir. 1992); United

States v. Palacios-Martinez, 845 F.2d 89, 91 (5th Cir. 1988).13 We first
With AEDPA’s enactment in 1996, Congress effectively codified this

reading of Mendoza-Lopez in 8 U.S.C. § 1326(d), which provides:

“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 proceeding 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.”

14

consider whether the procedures employed in Lopez-Vasquez’s removal were

“fundamentally unfair.”

Our decisions considering a collateral attack on a prior order used

as an element of a section 1326 illegal entry prosecution have involved

deportation orders as the predicate element of the section 1326

prosecution. See, e.g., Benitez-Villafuerte, 186 F.3d at 654-55;

Estada-Trochez, 66 F.3d at 734-35; Encarnacion-Galvez, 964 F.2d at 404-

05. Although the Supreme Court has not enumerated the procedural

protections guaranteed to an alien in a deportation proceeding, see

Mendoza-Lopez, 107 S.Ct. at 2155 n.17, it is well-settled that “aliens

in deportation proceedings are to be ‘accorded due process.’” LaraAceves, 183 F.3d at 1011 (quoting Espinoza v. INS, 45 F.3d 308, 310 (9th

Cir. 1995)); see Shaughnessy v. United States ex rel. Mezei, 73 S.Ct.

625, 629 (1953) (“[A]liens who have once passed through our gates, even

illegally, may be expelled only after proceedings conforming to

traditional standards of fairness encompassed in due process of law.”);
15

Benitez-Villafuerte, 186 F.3d at 656 (“Aliens who have entered the

United States unlawfully are assured the protection of the Fifth

Amendment due process clause.”) (citations omitted). However, “an alien

on the threshold of initial entry stands on a different footing.”

Mezei, 73 S.Ct. at 629. In attempting to enter the United States on

June 6, 1998, Lopez-Vasquez was never admitted into the United States;

instead, the INS inspectors prevented him from doing so at the border

and later founnd him inadmissible or excludable. In determining whether

Lopez-Vasquez’s removal procedures violated due process, we must first

address what process is due an alien seeking admission into the United

States who has not gained entry into the United States and remains

subject to being found inadmissible. 

An alien “seek[ing] admission to this country may not do so under

any claim of right.” United States ex rel. Knauff v. Shaughnessy, 70

S.Ct. 309, 312 (1950); see Kleindeinst v. Mandel, 92 S.Ct. 2576, 2581

(1972) (“[A]n unadmitted and nonresident alien[] ha[s] no constitutional

right of entry to this country as a nonimmigrant or otherwise.”)

(citations omitted). “An attempt to enter this country is a request for

a privilege rather than an assertion of right.” Zadvydas v. Underdown,

185 F.3d 279, 294 (5th Cir. 1999), petition for cert. filed, No. 99-7791

(Jan. 11, 2000) (citing Landon, 103 S.Ct. at 328). In the exclusion or

inadmissibility context, only the process afforded by the Congress and

the Executive is required. See id. at 294-95; see also Landon, 103

S.Ct. at 329 (“This Court has long held that an alien seeking initial
16

admission to the United States requests a privilege and has no

constitutional rights regarding his application, for the power to admit

or exclude aliens is a sovereign prerogative.”); Kleindienst, 92 S.Ct.

at 2585 (“[P]lenary congressional power to make policies and rules for

exclusion of aliens has long been firmly established.”); Boutilier v.

INS, 87 S.Ct. 1563, 1567 (1967) (“It has long been held that the

Congress has plenary power to make rules for the admission of aliens and

to exclude those who possess those characteristics which Congress has

forbidden.”) (citation omitted); Knauff, 70 S.Ct. at 313 (“Whatever the

procedure authorized by Congress is, it is due process as far as an

alien denied entry is concerned.”) (citations omitted); Ekiu v. United

States, 12 S.Ct. 336, 339 (1892) (“As to such persons, the decisions of

executive or administrative officers, acting within powers expressly

conferred by congress, are due process of law.”) (citations omitted).

On June 6, 1998, the INS inspectors found Lopez-Vasquez to be

inadmissible, or excludable under the pre-IIRIRA terminology.

Accordingly, he did not enter into the United States on that occasion.

See Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1440 (5th Cir.

1993) (“Although aliens seeking admission into the United States may

physically be allowed within its borders pending a determination of

admissibility, such aliens are legally considered to be detained at the

border and hence as never having effected entry into this country.”)

(citations omitted). Therefore, in his removal, Lopez-Vasquez was
14 In Landon, the Court considered what process is due a permanent

resident alien seeking admission to the United States following a twoday visit abroad. See Landon, 103 S.Ct. at 324. Although the Court

rejected Plasencia’s argument that she was entitled to a deportation

hearing, the Court also determined that, even though she was an alien

seeking admission into the United States, she was entitled to due

process, because of her having previously gained admission into the

United States, maintained residency in the country for five years, and

“develop[ed] the ties that go with permanent residence . . ..” Id. at

329. Moreover, the United States conceded that Plasencia “ha[d] a right

to due process.” Id. at 330 (citations omitted). In the present case,

the Government does not make such a concession and argues that LopezVasquez is due only the process provided under the immigration statutes

and regulations. In addition, Lopez-Vasquez does not contend, nor does

the record suggest, that his status is analogous to Plasencia’s.

15 8 U.S.C. § 1225(b)(1)(A)(i) provides as follows:

“If an immigration officer determines that an alien

(other than an alien described in subparagraph (F)) who is

arriving in the United States or is described in clause (iii)

is inadmissable under section 1182(a)(6)(C) or 1182(a)(7) of

this title, the officer shall order the alien removed from

the United States without further hearing or review unless

the alien indicates either an intention to apply for asylum

under section 1158 of this title or a fear of persecution.”

17

entitled only to the process provided by Congress.14

On June 6, 1998, Lopez-Vasquez was placed in expedited removal

proceedings for attempting to enter the United States by falsely

declaring himself to be a United States citizen. See 8 U.S.C. §

1225(b)(1)(A)(i)15. Federal regulations exist that set forth explicitly

the procedures for the expedited removal of inadmissible aliens. See

8 C.F.R. § 235.3. Lopez-Vasquez does not contend that these procedures

were not followed. Therefore, we hold that Lopez-Vasquez was not denied

procedural due process and that his removal was not fundamentally

unfair.

Because Lopez-Vasquez’s removal proceedings did not violate due
18

process, we need not address whether he suffered any prejudice or

whether he was denied judicial review of the hearing and order. See

Encarnacion-Galvez, 964 F.2d at 406 (stating that, if the alien fails

to establish one element of his challenge, a court need not consider the

others) (citing Palacios-Martinez, 845 F.2d at 92; United States v.

Saucedo-Velasquez, 843 F.2d 832, 836 & n.6 (5th Cir. 1988)). Because

he cannot show that his removal proceeding was fundamentally unfair,

Lopez-Vasquez’s June 1998 removal order may permissibly serve as a basis

for his conviction under 8 U.S.C. § 1326. Therefore, the district court

did not err in denying Lopez-Vasquez’s motion to dismiss the indictment

or to suppress.

Alternatively, we agree with the district court that even if LopezVasquez was denied due process in the prior removal proceeding, he did

not suffer any prejudice. In this connection, “[a] showing of prejudice

means ‘there was a reasonable likelihood that but for the errors

complained of the defendant would not have been deported’ [or removed].”

Benitez-Villafuerte, 186 F.3d at 658-59 (quoting Estrada-Trochez, 66

F.3d at 735). “In short, ‘[i]f the defendant was legally deportable

and, despite the INS’s errors, the proceeding could not have yielded a

different result, the deportation is valid for purposes of section

1326.’” Id. (quoting United States v. Galicia-Gonzlez, 997 F.2d 602, 603

(9th Cir. 1993)) (internal quotation omitted and alteration in

original). We also note that, on appeal, Lopez-Vasquez does not contest

the district court’s finding that, even if his removal order violated
16But see 8 U.S.C. § 1252(c) (provisions respecting judicial review

of removal orders issued under section 1225(b)(1)) and section 1326(d)

(see note 13 supra) (authorizing certain challenges to prior

“deportation order” in section 1326 prosecution).

19

his due process rights, he suffered no prejudice and would not have

avoided removal on June 6, 1998. Rather, Lopez-Vasquez’s argument in

this connection is that section 1225(b)(1)(D) (see note 9, supra)

deprives both the district court and this court of jurisdiction to

determine whether or not the prior removal was invalid, including

whether or not but for the errors complained of he would nevertheless

have been removed.16

We conclude that Lopez-Vasquez’s argument in unavailing. He

proceeds on the theory that Mendoza-Lopez entitles him to relief.

However, as discussed above, to be entitled to relief under MendozaLopez prejudice must be shown. We hold that section 1225(b)(1)(D) does

not preclude the district court or this court from determining that the

requisites of a Mendoza-Lopez claim as asserted by Lopez-Vasquez are not

met. Under the view taken by Lopez-Vasquez, section 1225(b)(1)(D) would

result in increasing the number of defendants who would escape section

1326 prosecution well beyond what it would have been had section

1225(b)(1)(D) never been enacted, a result plainly not intended by

Congress. The district court’s denial of Lopez-Vasquez’s motions to

dismiss and to suppress based on asserted defects in his prior removal

proceeding clearly did not violate section 1225(b)(1)(D). We do not

determine whether section 1225(b)(1)(D) precludes a district court from
17Cf. Lara v. Trominski, 216 F.2d 487 at 494 (5th Cir. 2000) (“even

if we assume that the district court would have jurisdictional over

Lara’s § 2241 claim if Lara could demonstrate that his prior deportation

involved a gross miscarriage of justice, we find that the BIA did not

err in finding that Lara had not made this demonstration”).

20

dismissing a section 1326 prosecution on the basis that the defendant

has properly established a valid Mendoza-Lopez claim respecting the

prior removal or deportation or whether, if section 1225(b)(1)(D) has

that effect, it is unconstitutional. If section 1225(b)(1)(D) has that

effect and is nevertheless constitutional, then Lopez-Vasquez is

entitled to no relief; if it does not have that effect, or if it does

have that effect and is hence unconstitutional, then it does not

preclude the district court or this court from determining that the

prejudice requisite of a Mendoza-Lopez claim has not been met, and for

that reason declining to dismiss the section 1326 prosecution.17

Accordingly, for this reason as well–because the district court

properly found there was no prejudice from the asserted procedural

defects in the prior removal--the district court did not err in denying

Lopez-Vasquez’s motion to dismiss or suppress. 

Conclusion

For the reasons stated, the judgment of the district court is

AFFIRMED.