*

The HONORABLE RICHARD E. DORR, United States District Judge for the

Western District of Missouri, sitting by designation.

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
1

The HONORABLE WARREN K. URBOM, United States District Judge for

the District of Nebraska.

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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
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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 MendezMorales’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 MendezMorales’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.
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).

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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. 
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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
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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.” TorresSanchez, 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. PerezPonce, 62 F.3d at 1122 (quotation omitted). 

The judgment of the district court is affirmed.

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