FILED

United States Court of Appeals

Tenth Circuit

June 4, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN F. ADAME-OROZCO,

Defendant-Appellant.

No. 09-3296

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 6:09-CR-10046-WEB-1)

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for

Defendant-Appellant Juan Adame-Orozco.

Brent I. Anderson, Assistant United States Attorney (Lanny D. Welch, United

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

United States of America.

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Juan Adame-Orozco appeals his conviction for illegally reentering the

United States after a prior deportation. The conviction should be overturned, he

submits, because the order that resulted in his deportation from the country was

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itself invalid. And this is so, in his view, because the order was premised on state

court felony drug convictions that he didn’t have a sufficient opportunity to attack

in collateral proceedings before he was removed from the country. In pursuing

this line of argument, Mr. Adame-Orozco seeks to rely on 8 U.S.C. § 1326(d),

which provides a defendant in an illegal reentry case with a means of defense if

he can show, among other things, that the underlying “deportation proceedings at

which [his deportation] order was issued improperly deprived [him] of the

opportunity of judicial review.” Id. § 1326(d)(2).

The problem is that Mr. Adame-Orozco was never improperly deprived of

the opportunity for judicial review in his federal deportation proceedings. He was

able to, and did, appeal his deportation order to the Board of Immigration Appeals

(“BIA”). And he was free, in turn, to appeal the BIA’s ruling to a federal court. 

Section 1326(d) requires no more. Contrary to Mr. Adame-Orozco’s argument,

the statute doesn’t guarantee judicial review in state court of his underlying state

felony convictions. Neither does it require, as he suggests, a stay of federal

deportation proceedings so long as some appellate or collateral review of his state

felony convictions happens to be ongoing. The plain language and history of

§ 1326(d) preclude such a view and require us to affirm the judgment of the

district court. 

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1

 We recognize that the Illegal Immigration Reform and Responsibility Act

of 1996 replaced “deportation” with “removal” as the preferred term of art to

refer to the denial or revocation of admission to the United States. See Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 108 n.3 (2d Cir. 2007). We use the term

“deportation” in this opinion, however, to track the language of 8 U.S.C. § 1326,

the statute that’s the primary focus of our attention here. Courts throughout the

nation often use the terms “removal” and “deportation” interchangeably, see, e.g.,

Zhong, 480 F.3d at 108 n.3, and we don’t mean to suggest any substantive

(continued...)

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I

In approaching Mr. Adame-Orozco’s appeal, we begin with the facts

underlying his original deportation (Section I.A), and those more immediately

relevant to his current illegal reentry prosecution (Section I.B), before proceeding

to analyze the arguments he presents for our review (Section II).

A

Sometime in the 1980s, Mr. Adame-Orozco entered the United States

without an inspection by or approval from federal immigration officials. By

1990, however, Mr. Adame-Orozco had won lawful permanent resident status, and

he eventually settled in Kansas. While in this country, he amassed convictions

for “numerous” crimes. See Criminal Complaint, R. Vol. I at 9. Most pertinent

for our purposes, in April 2005 Mr. Adame-Orozco added to this record by

pleading guilty in Kansas state court to two counts of selling cocaine in violation

of state law.

When federal officials received word of these latest convictions, they

initiated deportation proceedings.1

 In their view, Mr. Adame-Orozco’s

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1

(...continued)

difference between them for purposes of § 1326. See United States v. PenaRenovato, 168 F.3d 163, 165 (5th Cir. 1999) (“[R]emoval and deportation are the

same proceeding for purposes of § 1326 . . . .”). 

2

 Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who is convicted of

an aggravated felony at any time after admission is deportable.” Section

1101(a)(43)(b) defines the term “aggravated felony” to include “illicit trafficking

in a controlled substance (as defined in section 802 of title 21), including a drug

trafficking crime (as defined in section 924(c) of title 18).” Mr. Adame-Orozco

concedes that he qualifies as an “alien” for the purposes of § 1227.

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convictions constituted “aggravated felonies” sufficient to warrant deportation

under 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1101(a)(43)(B).2

 On January 18, 2006,

Mr. Adame-Orozco appeared before an immigration judge (“IJ”). Because the IJ

agreed that the convictions involved “aggravated felonies,” he explained that he

didn’t have any discretion to allow Mr. Adame-Orozco to remain in the United

States. The IJ informed Mr. Adame-Orozco that perhaps his best hope for staying

in the country was if he could convince a state court to undo his guilty plea to the

cocaine charges. Though the IJ seemingly had no obligation to do so, he granted

a one-month continuance to afford Mr. Adame-Orozco a chance to pursue relief in

state court.

By the time the deportation proceedings reconvened on February 22,

however, little had changed. Mr. Adame-Orozco hadn’t taken any steps to reopen

his state court conviction until that same day, when he finally filed a motion

before the state trial court to withdraw his guilty plea. In those papers, Mr.

Adame-Orozco argued that his guilty plea was involuntary and invalid because,

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among other things, his lawyer had rendered constitutionally ineffective

assistance by failing to advise him of the immigration consequences associated

with being convicted of the charges against him. Unsurprisingly, the state trial

court hadn’t yet ruled on Mr. Adame-Orozco’s motion.

Before the IJ on February 22, Mr. Adame-Orozco’s immigration lawyer

didn’t dispute that his drug convictions constituted “aggravated felonies” for

purpose of the immigration laws. Instead, counsel argued against deportation by

parroting Mr. Adame-Orozco’s state court request for collateral relief, submitting

that the state court guilty plea was invalid by dint of the ineffective assistance

provided by trial counsel in the criminal proceedings. 

To this, the IJ replied that “post-conviction relief is collateral to a removal

hearing.” R. Vol. I at 72. Unless and until Mr. Adame-Orozco’s state court

convictions were undone by authorized state courts, he explained, deportation

proceedings could and would continue. At the hearing’s end, the IJ found that

Mr. Adame-Orozco was, in fact, subject to deportation by virtue of his stilloperative state convictions. The IJ then advised Mr. Adame-Orozco that he could

appeal this deportation order to the BIA, and that any deportation wouldn’t

happen until the BIA ruled. In the meantime, the IJ offered, Mr. Adame-Orozco

might continue to pursue his collateral effort in state court to undo his

convictions.

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3

 In reaching this latter holding, the trial court relied on the Kansas

Supreme Court’s decision in State v. Muriithi, 46 P.3d 1145 (Kan. 2002). More

recently, though, the United States Supreme Court has held that an attorney’s

failure to advise a non-citizen defendant of the immigration consequences of

pleading guilty to a crime can, in certain circumstances, constitute ineffective

assistance of counsel under the Sixth Amendment. See Padilla v. Kentucky, 130

S. Ct. 1473, 1480-84 (2010). This case doesn’t call upon us to apply or interpret 

Padilla, however. Mr. Adame-Orozco appeals only a question about § 1326(d)’s

meaning, not Padilla’s import. As we explain below, we hold that § 1326(d)

permits a court in an illegal reentry case to reexamine the validity of the alien’s 

deportation proceedings — just not a conviction that might’ve led to those

proceedings. Nothing in this holding precludes Mr. Adame-Orozco from

attempting a collateral attack on his underlying state convictions using Padilla (or

any other line of argument) in some other, appropriate venue. 

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The BIA and the Kansas state trial court issued their rulings on the same

day approximately three months later. The BIA denied Mr. Adame-Orozco’s

immigration appeal, finding no defect in the IJ’s deportation order. And the state

trial court denied Mr. Adame-Orozco’s motion to withdraw his state court guilty

plea. The state court held that Mr. Adame-Orozco knowingly and voluntarily

entered his guilty plea, and that Kansas law didn’t require trial counsel to inform

a criminal defendant of the potential immigration consequences of a guilty plea.3

 

Mr. Adame-Orozco was deported on June 3, 2006 and didn’t choose to

pursue an appeal of the BIA’s decision in federal court. Ten days after his

deportation, however, on June 13, 2006, Mr. Adame-Orozco did file a notice of

appeal in state court announcing his intention to challenge that court’s rejection

of his collateral attack on his drug convictions. After that filing, though, Mr.

Adame-Orozco apparently allowed his appeal to fall dormant.

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4

 To provide details about his ongoing state court efforts, Mr. AdameOrozco has twice moved to supplement the record in this appeal. We grant the

(continued...)

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B

So things went until April 2009 when federal authorities discovered Mr.

Adame-Orozco again living in Kansas. Another indictment followed, this time

charging Mr. Adame-Orozco with illegally reentering the country subsequent to a

conviction for an aggravated felony. See 8 U.S.C. §§ 1326(a) and 1326(b)(2). 

Mr. Adame-Orozco replied with a motion to dismiss the indictment. Once

again, he did not dispute that his Kansas drug convictions qualified as

“aggravated felonies” for purposes of the immigration laws. Rather, he argued

that the earlier deportation proceedings against him were deficient under 8 U.S.C.

§ 1326(d)(2) because they didn’t afford him sufficient time before deportation to

pursue his collateral attack on those felony convictions in state court. 

After the federal district court considered and eventually denied the motion,

Mr. Adame-Orozco pled guilty and was sentenced to 15 months in prison. In 

doing so, though, he reserved his right to appeal the denial of his motion to

dismiss, a right he now pursues before us. At the same time, Mr. Adame-Orozco

sought to breathe new life into his state court appeal challenging the validity of

his state guilty plea. In late 2009, he filed a motion to reopen the appeal and, as

best we can tell from the materials submitted to us, that appeal is under

consideration by the Kansas court of appeals.4

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4

(...continued)

motions.

5

 Certain exceptions to this rule, not pertinent to our case, can be found in 

§ 1326(a)(2).

6

 In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the

Supreme Court held that § 1326(b)(2), rather than constituting a distinct element

or separate offense the jury must find, supplies the district judge with a potential

sentencing enhancement to a § 1326(a) conviction. Whether and to what degree

Almendarez-Torres remains good law after Blakely v. Washington, 542 U.S. 296

(2004), United States v. Booker, 543 U.S. 220 (2005), and their progeny is not

before us. Cf. Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J.,

concurring in part and concurring in the judgment) (suggesting that AlmendarezTorres “has been eroded by this Court’s subsequent Sixth Amendment

jurisprudence, and a majority of the Court now recognizes that [it] was wrongly

decided”). Mr. Adame-Orozco has never raised that question in this case; to the

contrary, he has conceded throughout all the relevant proceedings that his state

court convictions satisfy § 1326(b)(2)’s requirements. 

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II

A prosecution for illegal reentry under § 1326(a) generally requires the

government to prove two things: (1) that the alien “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 (2) that the alien

thereafter has “enter[ed], attempt[ed] to enter, or is at any time found in, the

United States.”5

 In turn, § 1326(b)(2) provides that those convicted under

§ 1326(a) “whose removal was subsequent to a conviction for commission of an

aggravated felony” may receive a higher sentence.6

In seeking to satisfy the first element of § 1326(a), the government may, as

it did here, produce evidence that the alien was deported while a deportation order

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was outstanding against him. But what if the defendant-alien seeks to argue that

the deportation order was itself unlawful? May he do so in defense of an illegal

reentry charge, essentially launching a collateral attack on an earlier deportation

proceeding long after the time for appealing that order has passed and the order

has become final?

Section 1326(d) addresses these questions. It permits the defendant-alien

the chance to mount a collateral attack against a prior deportation order in

response to an illegal reentry prosecution — but only in certain circumstances. A

defendant-alien may challenge the legality of a deportation order if, but only if,

he can show 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); see also United States v. Rivera-Nevarez, 418 F.3d 1104,

1107-08 (10th Cir. 2005). Because a final deportation order enjoys a presumption

of regularity, once the government shows that the alien was deported while such

an order was outstanding, the burden shifts to the defendant-alien, and it is he

who must prove each of § 1326(d)’s elements to overcome the presumed legality

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7

 In coming to this conclusion, we do not mean to imply that Mr. AdameOrozco has satisfied the requirements of §§ 1326(d)(1) and (d)(3). It is unclear

with respect to subsection (d)(1), for example, whether Mr. Adame-Orozco

exhausted his available administrative remedies. While the parties before us all

concede that he did appeal the IJ’s deportation order to the BIA, Mr. AdameOrozco does not allege that he sought a stay of deportation until he could finish

his state court collateral attack on his drug convictions — the same remedy he

now asks us to fault the IJ and BIA for failing to supply. But the government has

(continued...)

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of the earlier deportation order. See United States v. Arevalo-Tavares, 210 F.3d

1198, 1200 (10th Cir. 2000) (per curiam). 

Mr. Adame-Orozco suggests to us, as he did to the district court, that he

can meet this burden. He maintains that he exhausted all administrative relief

available to him before the IJ and BIA. See 8 U.S.C. § 1326(d)(1). He submits

that his deportation proceedings failed to provide him an opportunity for judicial

review because they failed to afford him enough time to pursue state court efforts

to undo his aggravated felony convictions. Id. § 1326(d)(2). And this, he says,

rendered his deportation proceedings fundamentally unfair. Id. § 1326(d)(3). 

Because Mr. Adame-Orozco’s argument ultimately presents us with a

purely legal question about the proper construction of § 1326(d), we review it de

novo. See United States v. Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004). In

doing so, we hold that his challenge fails at the second step of § 1326(d) because

his federal deportation proceedings did not “improperly deprive[] [him] of the

opportunity for judicial review.” 8 U.S.C. § 1326(d)(2). We reach this holding in

light of the statute’s language and in consonance with its history.7

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7

(...continued)

decided not to contest this issue, see Answer Br. at 17-18, and we need not pursue

it further in light of our holding under subsection (d)(2).

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By its plain terms, § 1326(d)(2) provides that an alien prosecuted for illegal

reentry “may not challenge the validity of the deportation order” unless the alien

demonstrates that “the deportation proceedings at which the order was issued

improperly deprived the alien of the opportunity for judicial review.” 8 U.S.C.

§ 1326(d) (emphasis added). In so doing, the statute imposes two significant

limitations. First, the defendant may attack the prior deportation only by

reference to the “proceedings at which the order was issued.” Second, the

defendant must limit this attack to the argument that those proceedings deprived

him of judicial review of the deportation order itself. Unless the defendant’s

challenge fits within these narrow constraints, it isn’t cognizable under

§ 1326(d)(2). 

Notably, the statute does not speak of, let alone specify, any right in an

illegal reentry proceeding to pursue a collateral attack on any other orders,

judgments, or proceedings. And it supplies no stay of deportation while appellate

or habeas proceedings may be ongoing in other matters. This doesn’t mean, of

course, that an alien lacks the opportunity to appeal or collaterally attack an

aggravated felony conviction. Of course not. It merely means that he must do so

in the traditional way, pursuant to state and federal laws governing criminal

appeals and collateral review — and not in an illegal reentry prosecution.

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There can be no genuine dispute that Mr. Adame-Orozco received what

process § 1326(d)(2) promises. He freely admits that he was able to (and did)

appeal the IJ’s deportation order to the BIA, and he identifies no impediment to

his ability to appeal the BIA’s decision to a federal court. Where, as here, the

statute’s language is plain and plainly satisfied, “the sole function of the courts”

can only be “to enforce it according to its terms.” United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 241 (1989) (quotation marks omitted); see also

United States v. Saenz-Gomez, 472 F.3d 791, 793 (10th Cir. 2007) (“If the

statutory language is clear, our analysis ordinarily ends.” (quotation marks

omitted)).

Still, the statutory language tells us even more. The absence of any link

between an alien’s procedurally proper deportation proceedings and his ongoing

challenge to an aggravated felony conviction is reinforced by the plain language

of two more provisions: 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(48)(A). 

Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien who is “convicted of an aggravated

felony at any time after admission is deportable.” And 8 U.S.C.

§ 1101(a)(48)(A), in turn, defines a “conviction” to mean, among other things, “a

formal judgment of guilt.” From this, it follows that an alien is lawfully

deportable as soon as a formal judgment of guilt is entered by a trial court. 

Indeed, Congress adopted its § 1101(a)(48)(A) definition of “conviction” in 1996

specifically to supplant a prior BIA interpretation that had required deportation to

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wait until direct appellate review (though never collateral review) of the

conviction was exhausted or waived. See Moosa v. INS, 171 F.3d 994, 1000-02

(5th Cir. 1999). 

Sections 1227 and 1101 confirm, then, that while the alien may have the

right to pursue appellate or collateral relief for an aggravated felony conviction

under various provisions of state and federal law, the government need not wait

until all these avenues are exhausted before deporting him. We emphasized just

this point in Saenz-Gomez, where we held that a defendant whose aggravated

felony conviction was entered by a trial court was lawfully deportable nine days

later, even though he had not yet had a chance to appeal — let alone collaterally

attack — his conviction. See 472 F.3d at 793-94 (rejecting defendant’s argument

that “a judgment does not become a conviction within the meaning of 8 U.S.C.

§ 1326(b) . . . until the direct appeal process has been exhausted or waived”).

Neither can we conceive any reasonable way to reconcile Congress’s

express commands in §§ 1227 and 1101 with Mr. Adame-Orozco’s proposed

reading of § 1326(d)(2). While §§ 1227 and 1101 authorize deportation

immediately after a trial court’s judgment of guilt, under Mr. Adame-Orozco’s

view of § 1326(d)(2) the BIA would have to postpone that deportation (at least for

those it prophesies will later be tried for illegal reentry) until after an aggravated

felony conviction can be tested not just through direct appeal but also through

collateral attack. As a formal matter, the government wouldn’t have to wait to

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8

 The implausibility of Mr. Adame-Orozco’s view of the statute may be

further suggested by the fact that, since the enactment of § 1101(a)(48)(A)’s

definition, the BIA has lawfully interpreted it to allow deportation of convicted

aliens “notwithstanding a subsequent state action purporting to erase all evidence

of the original determination of guilt through a rehabilitative procedure.” In re

Roldan-Santoyo, 22 I. & N. Dec. 512, 523 (BIA 1999) (en banc), order vacated

sub nom. on other grounds by Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.

2000); see also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005)

(upholding BIA’s interpretation). 

- 14 -

deport convicted aliens until after their convictions had survived direct and

collateral review. But as a practical matter, Mr. Adame-Orozco would have the

government do exactly that — at least for those who might be able to mount a

meritorious challenge on their underlying criminal convictions — if it wanted to

maintain the flexibility to prosecute deported aliens who later reentered the

country illegally. In a sort of statutory sleight of hand, then, what §§ 1227 and

1101 give, Mr. Adame-Orozco’s reading of § 1326(d)(2) would implicitly but

significantly take away. While Mr. Adame-Orozco urges this result with vigor,

he offers no rational explanation for such an unlikely interpretation of the

statute’s terms.8

 If, as Mr. Adame-Orozco seems to imagine, Congress had essentially

wished to take the step of affording aliens convicted of aggravated felonies with

an automatic stay of deportation pending the completion of appellate and

collateral review of their convictions, it knew well how to do so explicitly, rather

than leave the job to judicial implication. Congress, after all, has expressly

provided for stays of deportation elsewhere in the immigration laws. See, e.g.,

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8 U.S.C. § 1231(c)(2)(A)(i)-(ii). The fact that it did not do likewise here is a

textual point of comparison we are not entitled to ignore lightly. Cf. Custis v.

United States, 511 U.S. 485, 492 (1994) (“[W]here Congress includes particular

language in one section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” (citation and quotation marks omitted)). 

Congress, after all, does not usually “hide [such] elephants in mouseholes.” 

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).

Then there is also the matter of the statute’s history. Prior to the enactment

of § 1326(d), the validity of the BIA’s administrative deportation order was not

essential to a conviction under § 1326(a). See United States v. Mendoza-Lopez,

481 U.S. 828, 833-37 (1987). All that was required, at least in certain circuits,

was an administrative deportation order, a deportation, and a subsequent reentry

in defiance of that deportation order. See id. at 833 n.6 (detailing circuit split). 

The Supreme Court held, however, that this arrangement violated the

Constitution’s due process guarantee. Id. at 837. The Court explained that the

defendant-alien in a § 1326(a) prosecution cannot be criminally sanctioned for

defying a deportation order if he was never afforded any means to obtain judicial

review of that deportation order. Id. at 837-39. 

Section 1326(d) was enacted in response to Mendoza-Lopez and in an effort

to “incorporate[] [the Court’s judgment] into statutory law.” Ira J. Kurzban,

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9

 In response to all the foregoing, Mr. Adame-Orozco seeks to rely on

United States v. Copeland, 376 F.3d 61 (2d Cir. 2004), which he reads to hold

that “a person is deprived of judicial review [under § 1326(d)] when the time

interval between entry of the final deportation order and physical deportation is

too brief to obtain judicial review.” Opening Br. at 9. But Copeland is easily

distinguished. For one, that case dealt with an IJ who misinformed the alien

about his right to pursue discretionary relief, and it was seemingly, albeit

implicitly, premised on a belief that an alien has a constitutional right to be

informed about such possibilities. See Copeland, 376 F.3d at 64, 68-70. Mr.

Adame-Orozco, by comparison, does not allege that the IJ provided him with any

misinformation, so Copeland simply does not speak to his case. For another,

unlike the petitioner in Copeland, Mr. Adame-Orozco cannot show prejudice from

(continued...)

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Immigration Law Sourcebook 186 (10th ed. 2006); see also United States v.

Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998). The statute’s genesis was

thus all about ensuring some form of judicial review of the administrative

deportation proceedings — not the underlying criminal convictions for which

other avenues of judicial review had already long existed. When, as here, a

statute “is obviously transplanted from another legal source, whether the common

law or other legislation, it brings the old soil with it.” Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). And

in this case, the lines in the soil contain no sign of the interpretive path Mr.

Adame-Orozco would have us take. See Mendoza-Lopez, 481 U.S. at 839 n.17

(holding that “permitting collateral challenge to the validity of deportation orders

in proceedings under § 1326 does not create an opportunity for aliens to delay

deportation, since the collateral challenge we recognize today is available only in

criminal proceedings instituted after reentry”).9

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9

(...continued)

the loss of judicial review of his deportation order because he doesn’t offer any

reason to think the BIA erred in issuing such an order in his case. See United

States v. Lopez, 445 F.3d 90, 100-01 (2d Cir. 2006). Beyond and in addition to

all that, this circuit has held that an alien has no constitutional right to be

informed of avenues of discretionary relief. See United States v. Aguirre-Tello,

353 F.3d 1199, 1205 (10th Cir. 2004) (en banc); see also Ali v. Ashcroft, 395 F.3d

722, 732 (7th Cir. 2005) (no right to discretionary relief); Mejia Rodriguez v.

Reno, 178 F.3d 1139, 1146-47 (11th Cir. 1999) (same); cf. Trench v. INS, 783

F.2d 181, 184 (10th Cir. 1986) (holding that due process does not require

allowing a petitioner to “collaterally attack the legitimacy of [a] state criminal

conviction[] in [a] deportation proceeding[]”).

10 Had Mr. Adame-Orozco remained abroad after his deportation, a BIA

(continued...)

- 17 -

Having concluded that § 1326(d)(2) does not bear the promise of an

automatic stay of deportation for those convicted of aggravated felonies, the

question remains: What if Mr. Adame-Orozco is, at some future point, successful

in his now-renewed effort to overturn his drug convictions in state court? Does

he have some means available to him to seek recourse? The answer is, of course,

that he might seek to petition for habeas relief in the normal course, and “if [he]

is successful, he may then apply for reopening of any federal sentence enhanced

by the state” conviction. Custis, 511 U.S. at 497; see also United States v.

Garcia, 42 F.3d 573, 581-82 (10th Cir. 1994). What the appropriate outcome of

such a habeas application might be we do not now purport to decide. Cf. Custis,

511 U.S. at 497 (“We express no opinion on the appropriate disposition of such

an application.”). For current purposes, it suffices to say that any relief must

come through that traditional process, and not through § 1326(d).10

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10(...continued)

regulation would have precluded him from seeking to reopen and undo his

deportation proceedings. See Rosillo-Puga v. Holder, 580 F.3d 1147, 1151 (10th

Cir. 2009) (quoting 8 C.F.R. § 1003.2(d)). Nonetheless, the Executive can and

sometimes may facilitate the return to the United States of aliens “who were

removed pending judicial review but then prevailed before the courts.” Brief for

the Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No. 08-681)

(citing 8 U.S.C. § 1182(d)(5)).

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* * *

We hold that § 1326(d) does not afford a license to bootstrap separate

criminal proceedings into the process guaranteed to aliens facing deportation. 

Mr. Adame-Orozco was not improperly deprived of the opportunity for judicial

review of his federal deportation order within the meaning of § 1326(d)(2) simply

because the IJ and BIA declined to stay his deportation until he could complete a

collateral attack on his state court aggravated felony convictions. The judgment

of the district court is

Affirmed.

Appellate Case: 09-3296 Document: 01018434676 Date Filed: 06/04/2010 Page: 18