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

August 16, 2000

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

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

appeals his conviction of one count of illegally reentering the United

States without having obtained the Attorney General’s consent, in

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, L opez-Vasquez attempted to cross the border from1 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). S ee Lopez-Elias v. Reno

, 2 09 F.3d 788, 790 n.1 (5th

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

governed by IIRIRA’s permanent provisions) (citations omitted). 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

i nspection, Lopez-Vasquez declared in a sworn statement that he had no

fear of returning to Mexico and did not seek asylum.

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

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

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

“deportable.” S ee 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

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

Paso, Texas, by declaring himself to be a Uni ted States citizen. W hen

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 Se rvice (INS) inspectors that he was not a United

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

determined Lopez-Vasquez to be inelig ible for admission into the

United States and, pursuant to 8 U.S.C. § 1225(b)(1)(A)(i) 1

, placed

him in “expedited removal proceedings” and ordered him removed 2proceeding 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, IIRIRA has “‘d[one] away

with the previous legal distinction among deportation, removal, and

exclusion proceedings.’” U nited S tates 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 from the United States that day. Accordingly, Lopez-Vasquez was

n ever 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 reentering or

attempting to reenter 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 fo r a period of up to

twenty years for him to 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 the3 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

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

title.”

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.”

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

to reenter the United States, and he was indicted for illegally

reentering 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 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

r emoval order may not be used as evidence against him in his

c riminal prosecution for illegal reentry. In addition, LopezVasquez 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. §

1229c 3 or withdrawn his application for admission under 8 U.S.C. §

1225(a)(4) 4

. Lopez-Vasquez, however, never challenged the INS’s

having found him inadmissible for having falsely claimed to be a

United States citizen in attempting to enter the United States on

June 6, 1998.5 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.”

6 On November 6, 1997, Lopez-Vasquez pleaded guilty in Texas state

court to the offen se of unauthorized use of a vehicle and was sentenced

to two years’ community supervision. Texas law describes unauthorized

use a vehicle as follows:

5 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 illegal reentry prosecution,

L opez-Vasquez must establish that his removal was not subject to

judicial review and was fundamentally unfair causing him prejudice.

In denying Lopez- Vasquez’s motion, the district court focused on

Lopez-Vasquez’s failure to prove prejudice. With regard to LopezVasquez’s claim that he could have applied for voluntary departure,

the district court found it to be without merit because the

Government had established that such relief is discretion ary and

that Lopez-Vasquez would not have been allowed to depart

volunta rily because he had previously been granted a voluntary

departure on March 29, 1997. S ee 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

court held that this relief was also purely discretionary and that,

under current 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 vehicle 6

. Based on these“(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 u nder this section is a state jail

felony.” T EXAS P ENAL C ODE § 31.07

7 Curiously, in his June 6, 1998 sworn statement to an INS

inspecto r, 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.

6 conclusions, the di strict 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 reentry under 8 U.S.C. § 1326.

Lopez-Vasquez then moved for reconsideration of the denial of

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

prove that he probably suffered prejudice, instead claiming only a

showing of prejudice was necessary. He also contended that in June

1998 he was entitled to a futur e visa based on his having an

immediate relative, his father, who was a lawful permanent resident

of the United States 7

, 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 fr om either withdrawing

his application for admission or receiving relief based on his8 This Court has held that “the unauthorized use of motor vehicle

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

aggra vated felony for purposes of sentencing under U.S.S.G. § 2L.1.2.

United States v. Galvan-Rodriguez

, 169 F.3d 217, 220 (5th Cir. 1999)

( per curiam ). Moreover, for an offense to be considered an aggravated

felony, it must be punishable by a sentence of at least one year. We

held that Galvan -Rodriguez’s five-year deferred adjudication sentence

satisfied this requirement. See id . at 219-20 & n.4.

7 entitlement to a visa. In response, the Government stated 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 vehicle 8

, would have precluded

his entry under it. The district court carried Lopez-Vasquez’s

motion for reconsideration to trial.

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 hi m guilty of

the offense of il legal reentry. The district court sentenced

Lopez-Vasquez to ten months’ imprisonment and two years’ nonreporting supervised releas e. Lopez-Vasquez timely appealed to9 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).”

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 fr om 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 ali en 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

8 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

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

complete lack of judicial review 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

. We review Lopez-Vasquez’s2 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 t o a conviction

for commi ssion of three or more misdemeanors involving

drugs, c rimes against the person, or both, or a felony

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

fined under Title 18, imprisoned not m ore than 10

years, or both;

(2) whose remova l 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 Gener al, enters the United

States, or attempts to do so, shall be fined under

Title 1 8 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 stipu lates 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

9alien 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 fun damentally

unfair.”

11 The Government contends that we should review the district

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

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 cou rts–an issue that “cannot be waived and

can be raised at any time.” B arnes 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.”); 5A C H ARLES A LAN W RIGHT

ET AL

., F EDERAL P RACTICE AND P ROCEDURE § 1393 (2d ed. 1990 & Supp. 2000).

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.

10 constitution al challenge d e novo

. S ee United States v. SierraHernandez

, 192 F.3d 501, 503 (5th Cir. 1999), cert. denied

, 120 S.Ct.

1213 (2000). 11

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

decision in United States v. Mendoza-Lopez , 107 S.Ct. 2148 (1987). In

Mendoza-Lopez , the Court considered the use of deportation orders in the

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

8 U.S.C. § 1326. S ee id

. at 2150-51. Before the district court, the12 The two defendants, along with eleven other persons, were

deported in the same proceeding.

11 defendants moved to dismiss the indictment against them on the basis

that their deportation hearing 12 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. S ee id

. at 2151. The

district court agreed and dismissed the indictments, concluding that

their lack of underst anding of their rights to apply for suspension of

deportation or their rights to appeal their deportation orders rendered

their deportation proceeding fundamentally unfair. S ee id

. at 2152.

The Court of Appeals affirmed, determining first that a defendant

prosecuted under section 1326 could collaterally attack a 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. S ee id

.

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

collateral attack of an underlying deportation or der was neither

au thorized 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 p roceeding in th[e] case was fundamentally unfair and that12

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

.

a t 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 contentio n that the underlying

deportation order and proceeding were not subject to collateral attack

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

. . ..”). However, the Court also

concluded that, in the ab sence 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 deportation order, or in this case a removal

order, in a prosecution for illegal reentry under 8 U.S.C. § 1326: (1)

the alien must establish that the hearing was “fundamen tally 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 him actual prejudice. S ee United

States v. Benitez-Villafuerte , 186 F.3d 651, 658 (5th Cir. 1999); United13 The majority of our sister circuits agree with our

interpretation of Lopez-Mendoza

. S ee, 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).

With AEDPA’s enactment in 1996, Congress effectively codified this

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

“I n 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 depriv ed the alien of the

opportunity for judicial review; and

(3) the entry of the order was fundamentally

unfair.”

13 Sta tes v. Asibor , 109 F.3d 1023, 1038 (5th Cir. 1997); U nited 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 consider

whether the proc edures employed in Lopez-Vasquez’s removal were

“fundamentally unfair.”

Our decisions considering a collateral attack on an order used an

element of an illegal reentry prosecution have involved deportation

orders as the predicate element of a section 1326 prosecution. S ee,

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 Supreme14

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.’” Lara-Aceves

, 183 F.3d at 1011 (quoting

Espinoza v. INS

, 45 F.3d 308 , 310 (9th Cir. 1995)); s ee 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.”); B enite z-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.” M ezei

, 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.” U nited 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 constitutional15

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

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

a privil ege 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) (ci ting Landon , 103 S.Ct. at 328). In the exclusion or

ina dmissibility context, only the process afforded by the Congress and

the Executive is required. S ee id

. at 294-95; see also Landon

, 103

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

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.”); Kle indienst , 92 S.Ct.

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

exclusion of alien s 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 e ntry is concerned.”) (citations omitted); Ekiu v. United

States

, 12 S.Ct. 3 36, 339 (1892) (“As to such persons, the decisions of

executive or administrative officers, acting within powers expressly

conferred by congress, are due pr ocess of law.”) (citations omitted);

Hernandez v. Cremer

, 913 F.2d 230, 236 (5th Cir. 1990) (“The Supreme

Court has long recognized that the political branches of government have14 In L andon

, the Court considered what process is due a permanent

resident alien seeking admiss ion to the United States following a twoday visit abroad. S ee 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

. . ..” I d

. at

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

to due process.” I d

. 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.

16 plenary authority to make rules for the admission and exclusion of

aliens as an inherent concomitant of national sovereignty.”) (citations

omitted); cf. Doe v. Plyler

, 628 F.2d 448, 455 n.17 (5th Cir. 1980),

aff’d

, 102 S.Ct. 2382 (1982) (“Aliens who seek entry to the United

States are not guaranteed Fourteenth Ame ndment due process rights.”).

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

entitled only to the process provided by Congress. 14

On June 6, 1998, Lopez-Vasquez was placed in expedited removal15 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

t he alien indicates either an intention to ap ply for asylum

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

16 “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].” B enitez-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 diff erent result, the deportation

is valid for pur poses of section 1326.’” Id . (quoting United States v.

Galicia-Gonzalez , 997 F.2d 602, 603 (9th Cir. 1993)) (internal quotation

omitted and alteration in original). Although we need not and do not

address this element, we note that, on appeal, Lopez-Vasquez does not

contest the district court’s finding that, even if his removal order

violated his due process rights, he suffered no prejudice and could not

have avoided removal on June 6, 1998.

17 proceedings for attempting to enter the United States by falsely

declaring himself to be a United States citi zen. S ee 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. S ee

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 no t violate due

process, we need not address whether he suffered any prejudice 16 or17 Lopez-Vasquez maintains that 8 U.S.C. § 1225(b)(1)(D) precludes

judicial review of the INS inspector’s finding that Lopez-Vasquez

claimed to be a United States citizen when he attempted to enter the

United States on June 6, 1998. Lopez-Vasquez raises an interesting

issue, particularly in light of the provision for judicial review of

removal orders issued under 8 U.S.C. § 1225(b)(1), see 8 U.S.C. §

1252(e), and the opportunity for a collateral attack of an underlying

deportation order in a section 1326 prosecution, see 8 U.S.C. § 1326(d).

Moreover, Lopez-Vasquez’s argument implicates Mendoza-Lopez ’s

requirement that an alien be allowed to collateral attack a

fundamentally unfair removal proceeding and order irrespective of the

lack of a statutory mechanism to permit judicial review in a § 1326

prosecution. S ee Mendoza-Lopez

, 107 S.Ct. at 2156 (“[A] collateral

challenge to the use of a deportation proceeding as an element of a

criminal offense must be permitted where the deportation proceeding

effectively e liminates the right of the alien to obtain judicial

review.”). Because Lopez-Vasquez fails to establish that the procedures

used to deport him violated due process, we need not and do not decide

what judicial review, if any, is available to consider challenges to an

expedited removal order that is used as a n element of a § 1326

prosecution.

18 We reached an analogous conclusion, albeit in a different

context–a 28 U.S.C. § 2241 habeas corpus petition challenging the use

of a prior deportation order in a later deportation proceeding. L ara

v. Trominski

,

___ F.3d

____, No. 98-41434 (5th Cir. July 10, 2000).

After having been deported from the United States in February 1993

(after convicted of conspiracy to make a machine gun), Lara reentered

the Unit ed States and was charged with unlawful reentry after

deportation, in violation of 8 U.S.C. § 1326. After serving a fifteenmonth term of imprisonment, the INS instituted deportation proceedings

against Lara. In these proceedings, Lara attempted to collaterally

attack his February 1993 deportation, asserting that the offense

leading to his deportation, conspiracy to make a machine gun, was not

a ground for deportation. The IJ ruled that it lacked jurisdiction to

consider Lara’s collateral challenge. The BIA found that it lacked

jurisdiction because Lara could not establish that his prior deportation

18 whether he was denied judicial review of the hearing and order 17

. S ee

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)). 1 8 Becausewas a gross miscarriage of justice. Although Lara did not file a

petition for review of the BIA’s decision, he did file a § 2241 petition

in federal district court, which granted Lara’s petition. We reversed

the grant of habeas relief and ordered Lara’s petition to be dismissed,

concluding that, because the BIA did not err in finding Lara had not

established that his prior deportation involved a gross miscarriage of

justice, the district court lacked jurisdiction to consider Lara’s §

2241 petition. Our resolution of Lopez-Vazquez’s contentions is

similar: because he cannot establish that his June 1998 removal was

fundamentally unfair and violated due process, he cannot sustain a

collateral attack on its use in his instant § 1326 prosecution and

conviction for illegal reentry.

19 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.

Conclusion

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

AFFIRMED.