*Circuit Judge of the Eighth Circuit, sitting by designation.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-50186

_____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

JORGE HERNANDEZ-AVALOS

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________

May 11, 2001

Before JOLLY, MAGILL* and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Jorge Hernandez-Avalos (“Hernandez”) appeals his conviction

for unlawfully reentering the United States after having been

removed. See 8 U.S.C. § 1326. Hernandez contends that the

unlawful reentry indictment should have been dismissed because the

earlier removal proceeding was fundamentally unfair because he was

incorrectly removed as an “aggravated felon.” He argues that the

unfairness stems from the fact that although his conviction was a
2

felony under Colorado law, it was not considered a felony under

federal law. Because we do not agree that the removal proceeding

was fundamentally unfair, we affirm his conviction.

I

In February 1999, Hernandez, a citizen of Mexico, pleaded

guilty in a Colorado court to one count of possession of heroin, a

class three felony punishable under the laws of Colorado by up to

twelve years in prison. See COLO. REV. STAT. ANN. §§ 18-18-203, 18-

18-405, 18-1-105. A notation on the judgment of conviction

suggests that one of the terms of the plea agreement was that

Hernandez would “cooperate with [the] INS.” The Colorado state

court sentenced Hernandez to ninety days’ imprisonment followed by

six years’ probation.

On March 24, 1999, the Immigration and Naturalization Service

(“INS”) commenced removal proceedings against Hernandez. The

“Notice of Intent to Issue a Final Administrative Removal Order”

informed Hernandez that his Colorado drug conviction qualified as

an “aggravated felony” under 8 U.S.C. § 1101(a)(43). It further

informed him that because he had been convicted of an aggravated

felony, he was (1) deportable under 8 U.S.C. 1227(a)(2)(A)(iii);

(2) subject to expedited administrative removal proceedings under

8 U.S.C. § 1228(b) without a hearing before an immigration judge;

and (3) ineligible for any discretionary relief from removal

pursuant to 8 U.S.C. § 1228(b)(5). The notice also advised
3

Hernandez of his rights to obtain free legal services and to seek

judicial review of a final administrative order within fourteen

days unless he waived his right to appeal. The form indicates that

an interpreter explained these provisions in Spanish.

Also on March 24, Hernandez signed a waiver (written in

Spanish) stating that he did not dispute the INS’s factual

findings, that he waived his right to a hearing, that he consented

to his removal to Mexico, and that he waived his right to seek

judicial review of the removal order. The INS issued a “Final

Administrative Removal Order,” and Hernandez was then removed to

Mexico (through El Paso, Texas) on March 30, 1999.

Three days later, on April 2, Hernandez was arrested in El

Paso by border patrol agents. The instant indictment followed,

which charged him with unlawfully reentering the United States

after previously having been removed, in violation of 8 U.S.C. §

1326(a). Because Hernandez was considered an aggravated felon, the

government sought enhanced penalties under section 1326(b).

Although the maximum length of imprisonment under section 1326(a)

is two years, an alien “whose removal was subsequent to a

conviction for commission of an aggravated felony” may be sentenced

to twenty years in prison. 8 U.S.C. § 1326(b)(2). 

Hernandez filed a motion to dismiss the indictment on the

grounds that the earlier removal proceeding upon which the

indictment was predicated violated due process of law.
 

1Hernandez has raised an Apprendi issue with respect to his

sentence, but he does so for the sole purpose of preserving the

question for possible review by the United States Supreme Court.

As noted above, section 1326(b)(2) provides that the maximum prison

term may be increased from two years to twenty years if the alien

has been removed “subsequent to a conviction for commission of an

aggravated felony.” Because the fact of his prior drug conviction

was not alleged in the indictment, Hernandez contends that his

thirty-month prison term exceeded the statutory maximum. Hernandez

concedes (as he must) that his argument is directly contrary to

4

Specifically, Hernandez argued that he had not been deportable

under the aggravated felony provision because his Colorado

conviction for simple heroin possession would not have been

considered a felony under analogous federal drug laws. The

district court denied Hernandez’s motion to dismiss, relying on

this court’s decision in United States v. Hinojosa–Lopez, 130 F.3d

691 (5th Cir. 1997) (holding that a state drug conviction that is

a felony under state law constitutes an “aggravated felony” for the

purpose of the Sentencing Guidelines). 

Following a bench trial on stipulated facts, Hernandez was

convicted of unlawfully reentering the United States. The court

granted Hernandez’s request for a downward departure and sentenced

him to thirty months’ imprisonment and three years’ supervised

release. Hernandez now appeals.

II

A

The sole issue before this court is whether Hernandez’s

instant conviction for illegal reentry must be vacated because of

flaws in the earlier removal proceeding.1 We review de novo
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct.

1219, 1222, 140 L.Ed.2d 350 (1998), which held that a prior

conviction is a mere sentencing factor. While it has been

suggested that Almendarez-Torres may be inconsistent with Apprendi

v. New Jersey, 520 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), Almendarez-Torres is nevertheless binding on the lower

federal courts. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20,

118 S.Ct. 275, 284, 139 L.Ed.2d 199 (1997)(“[I]t is this Court’s

prerogative alone to overrule one of its precedents.”).

5

Hernandez’s due process challenge to his conviction. See United

States v. Estrada-Tochez, 66 F.3d 733, 735 (5th Cir. 1995). 

To successfully collaterally attack an earlier removal order,

which serves as an element of an offense under 8 U.S.C. § 1326, an

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

unfair; (2) the hearing effectively eliminated the alien’s right to

seek judicial review of the removal order; and (3) the procedural

deficiencies caused the alien actual prejudice. See United States

v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000)(citing United

States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d

772 (1987)).

B

Our analysis begins and ends with the question whether the

removal proceeding was fundamentally unfair in the sense that it

resulted in “a denial of justice” or of due process of law.

Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993).

The crux of this case is the meaning of “aggravated felony,”

which is defined in the Immigration and Nationality Act (“INA”) to

include “illicit trafficking in a controlled substance . . . ,
6

including a drug trafficking crime (as defined in section 924(c) of

Title 18).” 8 U.S.C. § 1101(a)(43)(B). In section 924(c), the

term “drug trafficking crime” includes “any felony punishable under

the Controlled Substances Act (21 U.S.C. § 801 et seq.). . . .” 18

U.S.C. § 924(c)(2)(emphasis added). 

In United States v. Hinojosa–Lopez, 130 F.3d 691, 694 (5th

Cir. 1997), we interpreted this definition from section 924(c) to

mean that a state drug conviction is a “drug trafficking crime”

(and thus an aggravated felony) if “(1) the offense was punishable

under the Controlled Substances Act and (2) it was a felony” under

either state or federal law. Five other circuits have reached the

same conclusion. See United States v. Restrepo-Aguilar, 74 F.3d

361, 364-66 (1st Cir. 1996); United States v. Polanco, 29 F.3d 35,

38 (2d Cir. 1994); United States v. Briones-Mata, 116 F.3d 308, 309

(8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000

(10th Cir. 1996); United States v. Simon, 168 F.3d 1271, 1272

(11th Cir. 1999); see also Steele v. Blackman, 236 F.3d 130, 136 &

n.5 (3d Cir. 2001)(dicta). 

Applying Hinojosa-Lopez to the facts of this case, we conclude

that Hernandez’s Colorado drug conviction is a “drug trafficking

crime” and, therefore, an “aggravated felony” within the meaning of

the applicable statutes because (1) Hernandez’s heroin possession

offense is clearly punishable under the Controlled Substances Act,

see 21 U.S.C. § 844(a); 21 U.S.C. § 812(c), Schedule I (b)(10); and
7

(2) as noted above, possession of heroin is a class three felony

under Colorado law. 

In sum, based on our interpretation of the relevant statutes,

we believe Congress intended that state drug convictions such as

Hernandez’s be included in the definition of “aggravated felony”

and that aliens in Hernandez’s situation be expeditiously removed

pursuant to section 1228. Therefore, we cannot say that

Hernandez’s removal through expedited administrative proceedings

constitutes “a denial of justice” or was otherwise unfair.

C

Hernandez, however, has raised two arguments that must be

addressed.

First, Hernandez suggests that the fundamental unfairness

arose when the INS agents failed to follow Board of Immigration

Appeals (“BIA”) precedents interpreting the “aggravated felony”

statutes. The BIA has interpreted the relevant language from

section 924(c) -- “any felony punishable under the Controlled

Substances Act” -- to mean that a drug offense must be punishable

as a felony under the provisions of the Controlled Substances Act

in order to qualify as an aggravated felony. See In re L-G-, 1995

WL 582051 (BIA)(“A federal, not a state, definition applies to

determine whether or not a state drug offense is a ‘felony’ within

the meaning of 18 U.S.C. § 924(c)(2), and therefore is an

‘aggravated felony’ under section 101(a)(43) of the Act.”). If the
 

2If a circuit court’s interpretation of “aggravated felony” is

different from the BIA’s interpretation, the INS is bound by the

decisions of the circuit court in removal proceedings “arising in”

that circuit. In re L-G, 1995 WL 582051 (BIA). Consequently, the

BIA’s interpretation should have been applied in Hernandez’s case

unless the decisions of the Tenth Circuit (the circuit in which the

removal proceeding arose) had dictated otherwise. At the time of

Hernandez’s removal, the Tenth Circuit (like the Fifth) had held

that a drug conviction is an aggravated felony if the offense was

punishable under federal drug laws and it was considered a felony

under either state or federal law. See Cabrera-Sosa, 81 F.3d at

1000. However, Cabrera-Sosa involved the application of the

Sentencing Guidelines, and the BIA insists that the interpretation

of section 924(c) depends upon whether “aggravated felony” is being

applied in sentencing or in the immigration context. In re K-V-D-,

1999 WL 1186808 (BIA). Thus, the INS agents were not bound to

follow Cabrera-Sosa’s interpretation of “aggravated felony” in

Hernandez’s case. As will be discussed below, we believe the BIA’s

distinction between sentencing and immigration cases is incorrect.

8

INS officials had properly applied BIA precedent at the time they

removed Hernandez, see 8 C.F.R. § 3.1(g), they would have

determined that Hernandez’s Colorado drug conviction for simple

possession of a small amount of heroin would not have been

considered a felony under analogous provisions of the Controlled

Substances Act, see 21 U.S.C. § 844(a), and they would not have

subjected him to the expedited administrative removal proceedings.2

There can be no doubt that the INS officials who conducted the

removal proceeding did not follow BIA precedent. However, if we

were reviewing Hernandez’s removal order on direct appeal, and if

the issue of statutory interpretation were properly preserved for

review, we would hold that the BIA’s interpretation of section

924(c) is plainly incorrect and that Hernandez was an aggravated

felon. We see no reason why the procedural posture of this case
 

3Because the question presented by this appeal relates only to

the fundamental fairness of the proceeding, we need not consider

Hernandez’s argument that we must defer to the BIA’s interpretation

of these general criminal statutes. Cf. Chevron U.S.A. v. Natural

Resources Defense Council, 467 U.S. 837, 842-43 & n.9, 104 S.Ct.

2778, 2781-82, 81 L.Ed.2d 694 (1984)(citations omitted)(“If the

intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress. . . . The judiciary is the final

authority on issues of statutory construction and must reject

administrative constructions which are contrary to clear

congressional intent. If a court, employing traditional tools of

statutory construction, ascertains that Congress had an intention

on the precise question at issue, that intention is the law and

must be given effect.”).

9

requires us to hold that it was fundamentally unfair to treat

Hernandez as an aggravated felon because he should have the benefit

of an agency’s erroneous interpretation of applicable law.3

Second, Hernandez argues that Hinojosa-Lopez and the other

circuits’ decisions interpreting section 924(c) are not relevant

here because they arose under the Sentencing Guidelines. The BIA’s

current rule is that section 924(c) must be interpreted differently

in immigration cases. See In re K-V-D-, 1999 WL 1186808 (BIA).

Only the Second Circuit has addressed this contention, and it

agreed with the BIA. See United States v. Pornes-Garcia, 171 F.3d

142, 147 (2d Cir.), cert. denied, 120 S.Ct. 191 (1999); Aguirre v.

INS, 79 F.3d 315, 317 (2d Cir. 1996). 

We fail to see the validity of interpreting this statute

differently based on this distinction between sentencing and

immigration cases; it is, after all, the same words of the same

phrase from the same statute that is being interpreted in each
10

instance. Indeed, the BIA and Second Circuit decisions are

predicated less on their reading of the statutory language than on

the perceived need for a uniform, substantive standard -- at least

in the deportation context -- for determining whether a drug

offense qualifies as an “aggravated felony.” But this argument for

uniformity is not altogether persuasive inasmuch as it creates a

dichotomy -- not uniformity -- between the BIA’s application of

section 924(c) in removal proceedings and the federal courts’

application of section 924(c) in sentencing proceedings, even

though both proceedings serve a parallel purpose of imposing

greater consequences for serious drug offenses.

More important to our decision, however, is that the statutory

language is clear -- and is the same -- whether applied in

sentencing or immigration cases. We agree that the plain language

of the statutes “indicate[s] that Congress made a deliberate policy

decision to include as an ‘aggravated felony’ a drug crime that is

a felony under state law but only a misdemeanor under the

[Controlled Substances Act],” Briones-Mata, 116 F.3d at 310, and

that the lack of a uniform substantive test for determining which

drug offenses qualify as “aggravated felonies” “is the consequence

of a deliberate policy choice by Congress” that the BIA and the

courts cannot disregard. Restrepo-Aguilar, 74 F.3d at 366. We are

therefore unpersuaded by the BIA’s and Second Circuit’s approach to

interpreting the identical statutory term differently depending
11

upon whether the case involves sentencing or immigration. 

III

Although we recognize that the INS officials may have made

mistakes under BIA rulings in conducting Hernandez’s removal

proceedings, we cannot ignore the fact that the relevant statutes

-- when properly interpreted -- express Congress’s intent that

aliens with drug convictions that are felonies under state law

should be removed under expedited administrative proceedings.

Under these circumstances, we hold that the earlier removal

proceeding was not “fundamentally unfair” and that the indictment

for unlawful reentry should not be dismissed as a violation of due

process of law. The judgment of the district court is therefore

A F F I R M E D .