*The Honorable Arthur L. Alarcón, Circuit Judge, United States Court of

Appeals, Ninth Circuit, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 22 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARINA RANGEL DE AGUILAR,

Defendant - Appellant.

No. 01-3153

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 00-CR-10149-MLB)

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal

Public Defender, with him on the brief), Wichita, Kansas, for DefendantAppellant.

Michael G. Christensen, Assistant United States Attorney (James E. Flory, United

States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before SEYMOUR, ALARCÓN,

*

and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.
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Marina Rangel de Aguilar was charged with illegal reentry into the United

States after a prior removal in violation of 8 U.S.C. § 1326(a) and (b)(2). She

filed a motion to dismiss the indictment, contending the fact of her prior

deportation should not be allowed as evidence in the case against her because the

expedited administrative procedure used to deport her had violated her right to

due process of law. The district court denied the motion. Ms. Rangel

subsequently pled guilty to the charges in the indictment and reserved the right to

appeal the district court’s ruling on her motion to dismiss. For the reasons set out

below, we affirm. 

I

The essential facts of the case are not in dispute. Ms. Rangel, a citizen of

Mexico, entered the United States without the proper documentation and

permission in March 1974. In September 1998, she was convicted in California

state court of possession for sale of a controlled substance and sentenced to

sixteen months in prison. In April 1999, INS agent David Jennings served Ms.

Rangel with Notice of Intent to Issue Final Administrative Removal Order. The

notice, standard INS form I-851, set out the charge against her, the allegations on

which the charge was based, and her rights under the circumstances. Those rights

included the right to be represented by counsel, to request an extension of time, to
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rebut the charges, to request review of the government’s evidence, and to seek

judicial review. The rights described in INS form I-851 follow the statutory

rights established by 8 U.S.C. § 1228(b)(4). 

Mr. Jennings indicated on the form that he had “explained and/or served”

the Notice of Intent to Ms. Rangel in Spanish. Record, doc. 14, app. A. The back

of the form has a number of boxes that may be completed by the respondent. Ms.

Rangel completed the “I DO NOT WISH TO CONTEST” box, signing to indicate

that she admitted the allegations and charge in the Notice, and that she was

deportable and not eligible for any form of relief. She waived her right to rebut

and contest the charges, as well as her right to judicial review of the final removal

order. The entire process took less than half an hour. Ms. Rangel was

subsequently deported to Mexico. 

In November 2000, Ms. Rangel was arrested by Kansas law enforcement

authorities at the request of the INS. An investigation showed there was no

record of defendant’s requesting or receiving permission to re-enter the United

States. She was indicted for a violation of 8 U.S.C. § 1326(a) and (b)(2). Subsection (b)(2) makes illegal the reentry of a non-U.S. citizen whose prior removal

was subsequent to a conviction for commission of an aggravated felony. Ms.

Rangel filed a motion to dismiss the indictment, maintaining the procedure

employed in her prior deportation violated her due process rights because the
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purported waiver lacked any audible record, was taken by agents of the

prosecuting entity, and was not made in open court before a neutral immigration

judge. The district court overruled the motion after determining Ms. Rangel did

not desire an evidentiary hearing. Ms. Rangel pled guilty, reserving the right to

appeal. 

II

Ms. Rangel challenges the expedited deportation procedures enacted by

Congress in 1996 which permitted the INS to deport her without a recorded

hearing before a neutral immigration judge. Those procedures are set out in 8

U.S.C. § 1228(b)(4), which provides:

Proceedings before the Attorney General under this subsection shall

be in accordance with such regulations as the Attorney General shall

prescribe. The Attorney General shall provide that – 

(A) the alien is given reasonable notice of the charges and of

the opportunity described in subparagraph (C);

(B) the alien shall have the privilege of being represented (at

no expense to the government) by such counsel, authorized to

practice in such proceedings, as the alien shall choose;

(C) the alien has a reasonable opportunity to inspect the

evidence and rebut the charges;

(D) a determination is made for the record that the individual

upon whom the notice for the proceeding under this section is served

(either in person or by mail) is, in fact, the alien named in such

notice;

(E) a record is maintained for judicial review; and

(F) the final order of removal is not adjudicated by the same

person who issues the charges.
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8 U.S.C. § 1228(b)(4). As described above, Ms. Rangel was summarily deported

without a hearing pursuant to these procedures after she signed a consent form. 

She claims her deportation was fundamentally unfair in violation of her right to

due process and, as a result, her subsequent conviction for illegal reentry must be

overturned.

To challenge the validity of a prior INS proceeding, a party must satisfy a

three-part standard as set out in 8 U.S.C. § 1326(d). 

In a criminal proceeding under this section, an alien may not challenge the

validity of the deportation order described in subsection (a)(1) of this

section 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 review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). We have previously determined that “[t]his section comports

with the constitutional standard for due process set forth in United States v.

Mendoza-Lopez, 481 U.S. 828, 837-38 (1987).” United States v. Wittgenstein,

163 F.3d 1164, 1170 (10th Cir. 1998). 

Ms. Rangel maintains she need not satisfy the requirements of the first

prong because administrative immigration courts do not have the authority to

adjudicate constitutional claims challenging an underlying deportation order. The

government does not offer any arguments contesting this assertion. The

government does maintain there is an additional requirement Ms. Rangel must
1

 Ms. Rangel also contends her waiver was invalid because it failed to

comply with the statutory procedural requirements set forth in 8 U.S.C. §

1228(b)(4). Based on the record before us, it does not appear that Ms. Rangel

presented this issue to the district court. We decline to reach it for the first time

on appeal. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir.

1993).

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satisfy, asserting that in cases bringing a collateral challenge to a deportation

order under 8 U.S.C. § 1326, petitioners must demonstrate prejudice. See

Wittgenstein, 163 F.3d at 1170; United States v. Meraz-Valeta, 26 F.3d 992, 998

(10th Cir. 1994). Ms. Rangel presented no evidence to demonstrate either that the

waiver she gave was not knowing and voluntary or that she had a defense to the

criminal charge underlying her deportation. However, we need not reach either of

these issues concerning the requirements of § 1326(d) because, as discussed

below, we reject Ms. Rangel’s main contention that her constitutionally-protected

rights to due process of law were violated by removal procedures which lack

participation by a neutral immigration judge and an audible record for possible

judicial review.1

 

Whether the district court erred in failing to dismiss the indictment due to

alleged violations of due process in the underlying immigration proceedings is a

mixed question of law and fact that we review de novo. See United States v.

Aranda-Hernandez, 95 F.3d 977, 980 (10th Cir. 1996); Meraz-Valeta, 26 F.3d at

997. Ms. Rangel’s appeal is based on the principle that waivers of rights in
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immigration removal proceedings should be subject to the same constitutional due

process safeguards as mandated in other contexts. Rule 11 of the Federal Rules

of Criminal Procedure, for instance, requires a judge to make the determination

that a defendant, in pleading guilty and waiving various rights to a trial, offers the

plea both knowingly and voluntarily. See United States v. Gigot, 147 F.3d 1193,

1197 (10th Cir. 1998). 

But a deportation proceeding is a civil action, not a criminal one, and the

procedures required are delineated by Congress and the Attorney General. This is

so because the power to expel people illegally present in the United States is

“essentially a power of the political branches of government, the legislative and

executive, [which] may be exercised entirely through executive officers, with

such opportunity for judicial review of their action as Congress may see fit to

authorize or permit.” Carlson v. Landon, 342 U.S. 524, 537 (1952) (quotations

and citations omitted). As a consequence, “various protections that apply in the

context of a criminal trial do not apply in a deportation hearing.” INS v. LopezMendoza, 468 U.S. 1032, 1038 (1984). In Lopez-Mendoza, for example, the

Supreme Court held that the exclusionary rule is not applicable in deportation

proceedings. Id. at 1050. As the Court noted, “a deportation hearing is intended

to provide a streamlined determination of eligibility to remain in this country,

nothing more.” Id., at 1039. Accordingly, we held in Michelson v. INS, 897 F.2d
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465, 467-68 (10th Cir. 1990), that the Sixth Amendment right to counsel is

inapplicable in the deportation context. 

Likewise, we are not persuaded the expedited deportation procedure was

fundamentally unfair, even though the waiver was not made before a neutral

magistrate. In so concluding, we agree with the result reached by the Fifth

Circuit in United States v. Benitez-Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999)

(“due process rights, including the right to a hearing, may be effectively

waived”). See also United States v. Garcia-Martinez, 228 F.3d 956, 961 (9th Cir.

2000). We disagree with Ms. Rangel’s apparent contention that her waiver must

be presumed to be fundamentally unfair because it was taken by a person at the

INS, which is the same agency that arrests the alien, provides an explanation of

her rights, and then determines she is deportable. See Brief for Aplt. at 15. Like

the Fifth and Ninth Circuits, “‘we will not presume bias from the mere

institutional structure of the INS.’” Garcia-Martinez, 228 F.3d at 961 (quoting

Benitez-Villafuerte, 186 F.3d at 660). 

We also conclude that the Constitution does not require a record more

substantial than that created in the course of this matter: written proof of waiver. 

We are aware of no authority suggesting that an audible record of waiver is

required in any context. Indeed, we note that in other contexts in which

Constitutional protections apply, validity of a waiver does not even depend upon
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the existence of a written record. See, e.g., United States v. Gell-Iren, 146 F.3d

827, 830 (10th Cir. 1998) (allowing waiver of Miranda rights without written

form); United States v. Austin, 933 F.2d 833, 835-36 (10th Cir. 1991) (same);

FEDERAL RULE OF CIVIL PROCEDURE 39(a) (allowing waiver of jury trial right by

oral stipulation entered in the record). 

This is not to say that a party may not contest the waiver. “[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 eliminates

the right of the alien to obtain judicial review.” United States v. Mendoza-Lopez,

481 U.S. 828, 839 (1987). In Mendoza-Lopez, the Court stated:

The Immigration Judge permitted waivers of the right to appeal that

were not the result of considered judgments by respondents, and

failed to advise respondents properly of their eligibility to apply for

suspension of deportation. Because the waivers of their rights to

appeal were not considered or intelligent, respondents were deprived

of judicial review of their deportation proceeding. The Government

may not, therefore, rely on those orders as reliable proof of an

element of a criminal offense.

Id. at 840. Here, Ms. Rangel offered no evidence to show that the agent involved

coerced her into waiving her rights, or that she did not understand the nature of

the rights available to her, or that the INS agent’s characterization of those rights

was misleading. Consequently, she has no basis for collaterally attacking her

deportation proceeding. 

We AFFIRM the judgment of the district court.