USA v GARCIA-MARTINEZ, 9950546
U.S. 9th Circuit Court of Appeals
USA v GARCIA-MARTINEZ
9950546
UNITED STATES OF AMERICA,
No. 99-50546
Plaintiff-Appellee,
D.C. No.
v.
CR-98-03473-BTM
AURELIO GARCIA-MARTINEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted April 13, 2000*
Pasadena, California
Filed October 3, 2000
Before: Ferdinand F. Fernandez and Kim McLane Wardlaw,
Circuit Judges, and Charles R. Weiner,** District Judge.
Opinion by Judge Wardlaw
tional structure of the INS constituting a due process violation
when an alien's expedited removal proceeding is adjudicated
by an INS detention officer.
Appellant Aurelio Garcia-Martinez was convicted for forc-
ible rape in California state court in 1994. While he was in
prison in June 1998, the Immigration and Naturalization Ser-
vice (INS) served Garcia-Martinez with a Notice of Intent,
signed by INS Officer Clark, charging him with entering the
United States without inspection and without having been
lawfully admitted for permanent residence. The Notice of
Intent also charged Garcia-Martinez with having been con-
victed of rape, for which he was sentenced to eight years in
prison. The Notice of Intent stated that Garcia-Martinez was
deportable as an alien who had been convicted of an aggra-
vated felony--the California rape conviction.
Garcia-Martinez signed the Notice of Intent, admitted that
he was deportable and that he was ineligible for any relief
from removal. He waived the fourteen-day period for execu-
tion of the final removal order.
The deciding Service officer, INS officer Najera, signed a
final removal order the same day. Ten days later, the INS
removed Garcia-Martinez from the United States to Mexico.
In November 1998, Garcia-Martinez was arrested by Bor-
der Patrol agents, after which he admitted that he was a Mexi-
can citizen present in the United States illegally. The
government indicted Garcia-Martinez on one count of being
a deported alien found in the United States in violation of 8
U.S.C. S 1326. Garcia-Martinez moved to dismiss the indict-
ment, arguing that entry of the 1998 order of deportation was
fundamentally unfair. He contended that because the expe-
dited removal proceeding violated his due process rights
under the Fifth Amendment, the government could not rely on
the order to satisfy the prior deportation element of the S 1326
charge.
The district court denied the motion to dismiss, holding that
neither the statute governing the expedited removal proce-
dure, nor its implementing regulation was facially unconstitu-
tional because the statutory scheme allowed the INS
discretion to provide aliens a full removal hearing before an
immigration judge, which the INS permits whenever an alien
contests the removal charges. The court found that Garcia-
Martinez's waiver of a deportation hearing was not knowing
or intelligent. However, the court concluded that Garcia-
Martinez could not show that he had suffered prejudice from
the defects in his removal proceeding. Thus, the government
was entitled to rely upon Garcia-Martinez's prior deportation
for its S 1326 charge.
Garcia-Martinez entered a conditional plea of guilty to the
one-count indictment. The district court sentenced Garcia-
Martinez to thirty-seven months in custody and three years of
supervised release.
Garcia-Martinez appealed, collaterally attacking the prior
deportation order upon which his conviction rested, contend-
ing that his expedited administrative removal for being an
aggravated felon violated the Due Process Clause of the Fifth
Amendment. He claimed that the INS enforcement officer
who adjudicated the removal order was institutionally biased
due to his daily enforcement duties.
[1] Where an illegal alien has been convicted of an aggra-
vated felony, the Attorney General may commence deporta-
tion proceedings. Removal proceedings commence when an
issuing Service officer determines that sufficient evidence
supports removal and serves the alien with a Notice of Intent.
If the alien concedes deportability, a deciding Service officer
issues and causes to be served upon the alien a Final Adminis-
trative Removal Order that states the reasons for the deporta-
tion decision.
[2] The court of appeals will not presume bias from the
mere institutional structure of the INS. [3] Officer Najera's
adjudication of Garcia-Martinez's expedited removal pro-
ceeding was not a due process violation.
[4] Even if there had been a due process violation, Garcia-
Martinez's claim would have failed because he could not
demonstrate that prejudice resulted from the asserted proce-
dural defect.
[5] Garcia-Martinez's deportation was a foregone conclu-
sion. His prior California rape conviction constituted an
aggravated felony. Any alien who is convicted of an aggra-
vated felony at any time after admission is deportable. No
alien deportable as an aggravated felon shall be eligible for
any relief from removal that the Attorney General may grant
in the Attorney General's discretion.
[6] Garcia-Martinez had to demonstrate actual prejudice.
The only circumstance under which no showing of prejudice
is necessary is when the administrative proceedings are so
flawed that an effective judicial review of a deportation,
which might otherwise have been prevented, would be fore-
closed. Prejudice will be presumed only where discretionary
relief from deportation is available.
[7] Officer Najera had no discretionary authority to grant
Garcia-Martinez relief from deportation. Because he con-
ceded that he was an illegal alien convicted of an aggravated
felony, Garcia-Martinez was statutorily barred from obtaining
any relief from deportation.
_________________________________________________________________
COUNSEL
Todd W. Burns, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Sam T. Liccardo, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
Aurelio Garcia-Martinez appeals his conviction, upon a
conditional guilty plea, on one count of being a deported alien
found in the United States in violation of 8 U.S.C.S 1326.
Garcia-Martinez collaterally attacks the prior deportation
order upon which his conviction rested, contending that his
expedited administrative removal for being an aggravated
felon violated the Due Process Clause of the Fifth Amend-
ment. He claims that the Immigration and Naturalization Ser-
vice enforcement officer who adjudicated the removal order
was institutionally biased. We have jurisdiction under 28
U.S.C. S 1291. Because there was no institutional bias and, in
any event, Garcia-Martinez failed to show actual prejudice
from the asserted procedural defect, we affirm.
I. Background
This case arises from Garcia-Martinez's November 18,
1998 arrest by United States Border Patrol agents, after which
he admitted that he was a Mexican citizen present in the
United States without permission. Earlier that year, on June
26, 1998, while Garcia-Martinez was in custody at Centinela
State Prison in Imperial, California, the INS served him with
a Notice of Intent to Issue a Final Administrative Removal
Order ("Notice of Intent"). INS Officer A. Neil Clark, the
issuing service officer,1 signed the Notice of Intent. It charged
Garcia-Martinez with having entered the United States on
January 1, 1993, without inspection and without having been
lawfully admitted for permanent residence. Garcia-Martinez
also was charged with a February 7, 1994 conviction in Cali-
fornia Superior Court of the offense of sexual intercourse by
means of force, violence, and fear, in violation of section 261
of the California Penal Code, for which he was sentenced to
eight years' imprisonment.
The Notice of Intent further stated that Garcia-Martinez
was deportable because "[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable,"
8 U.S.C. S 1227(a)(2)(A)(iii), and Garcia-Martinez's Califor-
nia conviction was for an "aggravated felony. " See 8 U.S.C.
S 1101(a)(43). The Notice of Intent informed Garcia-Martinez
that he was subject to an expedited administrative removal
proceeding under 8 U.S.C. S 1228(b), that he could choose to
be represented by counsel at the proceeding, and that he had
ten calendar days within which to respond in writing to the
charges against him.2
Garcia-Martinez signed and dated the Notice of Intent on
June 26, 1998, the same day it was served. Garcia-Martinez
also signed the "I do not wish to contest" portion of the
Notice of Intent, admitting the charges that he was deportable
and that he was ineligible for any relief from removal. He
waived the fourteen-day period for execution of the final
removal order.
The same day, INS Officer Hector Najera, Jr., the deciding
Service officer,3 signed a Final Administrative Removal Order
("Removal Order"). Ten days later, the INS removed Garcia-
Martinez from the United States to Mexico, through the
Calexico, California Port of Entry.
On December 2, 1998, following his November arrest, the
United States filed a one-count indictment against Garcia-
Martinez in the Southern District of California, charging him
with being a deported alien found in the United States in vio-
lation of 8 U.S.C. S 1326. Garcia-Martinez moved to dismiss
the indictment in the district court. He argued that entry of the
1998 order of deportation was fundamentally unfair. Specifi-
cally, he contended that the expedited removal proceeding
violated his due process rights under the Fifth Amendment.
Therefore, he argued, the government could not rely on the
order to satisfy the prior deportation element of the Section
1326 charge.
The district court denied the motion to dismiss. It held that
neither the statute governing the expedited removal proce-
dure, 8 U.S.C. S 1228, nor its implementing regulation, 8
C.F.R. S 238.1, was facially unconstitutional because the stat-
utory scheme allowed the INS discretion to provide aliens a
full removal hearing before an immigration judge, which the
INS permits whenever an alien contests the removal charges.
The district court found that Garcia Martinez's "waiver of a
deportation hearing was not knowing or intelligent " because
he was never informed that he could proceed before an immi-
gration judge and the INS failed to provide him with a list of
available free legal services. It concluded, however, that
"Garcia-Martinez has not shown, and under the circumstances
of his case cannot show, that he suffered prejudice from the
defects in his removal proceeding."4 Thus, the government
was entitled to rely upon Garcia-Martinez's prior deportation
for its Section 1326 charge.
On May 21, 1999, Garcia-Martinez entered a conditional
plea of guilty to the one-count indictment. On June 24, 1999,
the district court sentenced Garcia-Martinez to thirty-seven
months in custody and three years of supervised release. This
timely appeal followed.
II. Fundamental Fairness
Garcia-Martinez contends that the district court erred in
rejecting his due process challenge to expedited removal. A
defendant charged under 8 U.S.C. S 1326 may not collaterally
attack the underlying deportation order unless the order is
fundamentally unfair. See 8 U.S.C. S 1326(d).5 Garcia-
Martinez contends the INS violated his due process rights by
unconstitutionally applying the expedited removal procedures
set forth in 8 U.S.C. S 1228 and 8 C.F.R.S 238.1. We review
de novo Garcia-Martinez's "claim that defects in the underly-
ing deportation procedure invalidated the proceeding for use
in his criminal proceedings." United States v. Corrales-
Beltran, 192 F.3d 1311, 1313 (9th Cir. 1999). Garcia-
Martinez "can succeed in this collateral challenge only if he
is able to demonstrate that: (1) his due process rights were
violated by defects in his underlying deportation proceeding,
and (2) he suffered prejudice as a result of the defects."
United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th
Cir. 1998). We address each of these requirements in turn.
A. Due Process
Garcia-Martinez argues that his removal pursuant to 8
U.S.C. S 1228 cannot be used as an element of the offense of
illegal re-entry after removal under 8 U.S.C. S 1326 because
that removal was rendered in a proceeding conducted by an
adjudicator inherently biased due to his daily enforcement
activities. To evaluate this contention, we first review the
expedited administrative removal procedure to which Garcia-
Martinez was subjected.
[1] Where, as here, an illegal alien has been convicted of
an aggravated felony, the Attorney General may commence
deportation proceedings. See 8 U.S.C. S 1228(b). Proceedings
under Section 1228(b) are governed by regulations promul-
gated by the Attorney General and set forth in 8 C.F.R.
S 238.1. Under 8 C.F.R. S 238.1, removal proceedings com-
mence when an issuing Service officer determines that suffi-
cient evidence supports removal and serves the alien with a
Notice of Intent. See 8 C.F.R. S 238.1(b)(1).6 If, as here, the
alien concedes deportability, a "deciding Service officer shall
issue and cause to be served upon the alien a Final Adminis-
trative Removal Order that states the reasons for the deporta-
tion decision." 8 C.F.R. S 238.1(d)(1). A deciding Service
officer may not be "the same person as the issuing Service
officer." 8 C.F.R. S 238.1(a).
Garcia-Martinez argues that deciding Service officers, as
INS enforcement employees, are inherently biased adjudica-
tors. Although we have not addressed the question of institu-
tional bias in the context of expedited removal proceedings
conducted by deciding Service officers under 8 U.S.C.
S 1228, we have considered the issue on review of deportation
orders issued after full immigration hearings. See LeTourneur
v. INS, 538 F.2d 1368 (9th Cir. 1976); Hosseinmardi v. INS,
405 F.2d 25 (9th Cir. 1968). In that context, we rejected the
contention that because the immigration judge "is under the
supervision of Immigration and Naturalization Service offi-
cers who perform prosecuting and investigative functions, due
process may be violated." LeTourneur, 538 F.2d at 1370;
accord Hosseinmardi, 405 F.2d at 27-28. We conclude that
the argument similarly lacks merit in the context of expedited
removals.
One other circuit has addressed this issue, and we find its
reasoning persuasive. See United States v. Benitez-Villafuerte,
186 F.3d 651 (5th Cir. 1999) cert. denied, _______ U.S. _______, 120
S. Ct. 838 (2000) (No. 99-7193). In Benitez-Villafuerte, the
Fifth Circuit considered whether "the INS impermissibly
functioned in both a prosecutorial and an adjudicative capac-
ity during the S 1228 proceeding." Id. at 659. Relying primar-
ily on Marcello v. Bonds, 349 U.S. 302, 311 (1955), the Fifth
Circuit held that this allegation of institutional, structural bias
was "wholly devoid of merit." Id.
We agree with the Fifth Circuit that Marcello is instructive.
In Marcello, the Supreme Court rejected the argument that a
deportation hearing violated due process because the INS spe-
cial inquiry officer who conducted the hearing "was subject
to the supervision and control of officials in the Immigration
Service charged with investigative and prosecuting func-
tions." Marcello, 349 U.S. at 311. As the Marcello Court rea-
soned:
The contention is without substance when consid-
ered against the long-standing practice in deportation
proceedings, judicially approved in numerous deci-
sions in the federal courts, and against the special
considerations applicable to deportation which the
Congress may take into account in exercising its par-
ticularly broad discretion in immigration matters.
Id.; accord LeTourneur, 538 F.2d at 1370 ("The separate con-
tention that because the officer is under the supervision of
Immigration and Naturalization Service officers who perform
prosecuting and investigative functions, due process may be
violated, is also without merit." (citing Marcello, 349 U.S. at
311)); Hosseinmardi, 405 F.2d at 27-28 (citing Marcello, 349
U.S. at 311, in rejecting a similar institutional-bias argument).
Thus, as the Fifth Circuit noted, "the Supreme Court's prece-
dent on this point is clear: we will not presume bias from the
mere institutional structure of the INS." Benitez-Villafuerte,
186 F.3d at 660.
[2] Garcia-Martinez nevertheless insists that Benitez-
Villafuerte and Marcello do not counsel against him. He
asserts that his bias argument differs from that in Benitez-
Villafuerte because it is not predicated on the commingling of
prosecutorial and adjudicative functions in a Section 1228
proceeding, but rather on the daily activities of INS enforce-
ment officers. This contention is without merit. The argument
that the daily activities of the officers, which are primarily
prosecutorial and investigative, preclude them from constitu-
tionally functioning in an adjudicative capacity is no different
than the argument that the officers "impermissibly functioned
in both a prosecutorial and an adjudicative capacity." Benitez-
Villafuerte, 186 F.3d at 659. Thus, just as in Benitez-
Villafuerte, we decline to "presume bias from the mere insti-
tutional structure of the INS." Id. at 660.
Furthermore, although the Marcello Court focused on the
issue of inherent bias resulting from supervision of an adjudi-
cator by those with prosecutorial or investigative functions,
rather than commingling of functions within one individual,
in other administrative contexts the Supreme Court has rea-
soned:
The contention that the combination of investigative
and adjudicative functions necessarily creates an
unconstitutional risk of bias in administrative adjudi-
cation . . . . must overcome a presumption of honesty
and integrity in those serving as adjudicators; and it
must convince that, under a realistic appraisal of
psychological tendencies and human weakness, con-
ferring investigative and adjudicative powers on the
same individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden if
the guarantee of due process is to be adequately
implemented.
Withrow v. Larkin, 421 U.S. 35, 47 (1975). Thus, the Court
rejected the "bald proposition" that Garcia-Martinez advances
here, "that agency members who participate in an investiga-
tion are disqualified from adjudicating." Id. at 52.
Garcia-Martinez also attempts in three ways to distinguish
Marcello on its facts and, by necessary implication, our hold-
ings in LeTourneur, 538 F.2d at 1370, and Hosseinmardi, 405
F.2d at 27-28. First, he asserts that the special inquiry officer
whose role was at issue in Marcello functioned more like an
immigration judge than a deciding Service officer. We dis-
agree, finding no relevant distinction between the roles and
responsibilities of a special inquiry officer and a deciding Ser-
vice officer.
Special inquiry officers, the forerunners of immigration
judges, were officers designated by the Attorney General to
oversee deportation and exclusion proceedings. See Thomas
A. Aleinikoff & David A. Martin, Immigration Process and
Policy 107-110 (2d ed. 1991).7 In 1983, immigration judges
were moved out of the INS into a new unit insulated from the
enforcement functions of the INS, the Executive Office for
Immigration Review. See id. at 109; see also Reno v. Flores,
507 U.S. 292, 308 (1993) ("The immigration judge is a quasi-
judicial officer in the Executive Office for Immigration
Review, a division separated from the Service's enforcement
staff."). On the other hand, before 1983, special inquiry offi-
cers, like deciding Service officers, were employees of the
INS, supervised by officials with enforcement responsibilities.
See Marcello, 349 U.S. at 311 (noting "the special inquiry
officer was subject to the supervision and control of officials
in the Immigration Service charged with investigative and
prosecuting functions"). Furthermore, like a deciding Service
officer but unlike an immigration judge, a special inquiry offi-
cer could engage in investigative and prosecutorial functions
for the INS, and was barred "only from hearing cases which
he has taken some part in investigating or prosecuting." Id. at
305-06; see also 8 C.F.R. S 1.1(i). 8
Second, Garcia-Martinez contends that Marcello , which
involved a direct challenge to the validity of a deportation
order, does not govern challenges to the use of such an order
in a later criminal prosecution. To challenge the use of the
Removal Order in this criminal prosecution, however, Garcia-
Martinez must "demonstrate that . . . his due process rights
were violated by defects in his underlying deportation pro-
ceeding." Corrales-Beltran, 192 F.3d at 1316. Marcello there-
fore is instructive as to whether there was a due process
violation in Garcia-Martinez's underlying expedited removal
proceeding, and thus whether Garcia-Martinez satisfied the
first requirement for a successful collateral attack on his prior
deportation. See Benitez-Villafuerte, 186 F.3d at 659-60.
Finally, Garcia-Martinez tries to distinguish Marcello on
the ground that there, unlike in this case, the petitioner
appealed to the Board of Immigration Appeals. In finding no
due process violation, however, the Marcello Court made no
mention of the petitioner's appeal to the Board. The Supreme
Court instead focused on the relationship between a special
inquiry officer and his investigative and prosecutorial supervi-
sors at the INS, and held that, in a deportation hearing, adjudi-
cation by a "special inquiry officer . . . subject to the
supervision and control of officials in the Immigration Service
charged with investigative and prosecuting functions " did not
violate due process. Marcello, 349 U.S. at 311.
[3] We therefore conclude that Officer Najera's adjudica-
tion of Garcia-Martinez's expedited removal proceeding is
not a due process violation.
B. Prejudice
[4] Even if we were to find a due process violation, Garcia-
Martinez's claim would fail because he cannot meet the sec-
ond requirement for a collateral challenge to an underlying
deportation proceeding. To succeed, he must demonstrate that
prejudice resulted from the asserted procedural defect. See
Corrales-Beltran, 192 F.3d at 1316. To meet this burden,
Garcia-Martinez must demonstrate plausible grounds for
relief from deportation. See United States v. Esparza-Ponce,
193 F.3d 1133, 1136 (9th Cir. 1999) petition for cert. filed
_______ U.S.L.W. _______ (U.S. May 25, 2000) (No. 99-9722).
[5] Garcia-Martinez does not assert that he suffered actual
prejudice. Because his deportation was a foregone conclusion,
he cannot demonstrate that he had plausible grounds for relief
from deportation. See Esparza-Ponce, 193 F.3d at 1136. His
prior California rape conviction constitutes an "aggravated
felony" under 8 U.S.C. S 1101(a)(43)(A), a conclusion that
Garcia-Martinez does not dispute. Under 8 U.S.C.
S 1227(a)(2)(A)(iii), any "alien who is convicted of an aggra-
vated felony at any time after admission is deportable." And,
under 8 U.S.C. S 1228(b), no alien deportable as an aggra-
vated felon under Section 1227(a)(2)(A)(iii) "shall be eligible
for any relief from removal that the Attorney General may
grant in the Attorney General's discretion." 8 U.S.C.
S 1228(b)(5); see also Benitez-Villafuerte , 186 F.3d at 659.
Instead, Garcia-Martinez contends that prejudice is pre-
sumed in a proceeding before a biased adjudicator, relying on
United States v. Mendoza-Lopez, 481 U.S. 828 (1987).9 In
Mendoza-Lopez, the Supreme Court reasoned that there must
be "some meaningful review of the administrative proceed-
ing" if it is "to play a critical role in the subsequent imposition
of a criminal sanction." Id. at 837-38. The Mendoza-Lopez
Court noted that there may be some procedural errors that are
so fundamental "that they may functionally deprive the alien
of judicial review, requiring that the result of the hearing in
which they took place not be used to support a criminal con-
viction." Id. at 839 n.17. Garcia-Martinez argues that Officer
Najera's inherent bias is just the sort of fundamental unfair-
ness the Supreme Court had in mind. As the Court said, "[w]e
have previously recognized, however, in the context of crimi-
nal proceedings, that `some errors necessarily render a trial
fundamentally unfair.' " Id. (quoting Rose v. Clark, 478 U.S.
570, 577 (1986) (holding criminal adjudication by a biased
judge renders trial fundamentally unfair)).
The Mendoza-Lopez Court did not strictly apply the hold-
ing of Rose v. Clark in the administrative context, however.
Rather, noting that "the procedures required in an administra-
tive proceeding are less stringent than those demanded in a
criminal trial," the Court concluded that "analogous abuses
could operate, under some circumstances, to deny effective
judicial review of administrative determinations. " Mendoza-
Lopez, 481 U.S. at 839 n.17.10
[6] Although we have not previously addressed the claim
that prejudice should be presumed from adjudicator bias in
the underlying proceeding, our cases declining to adopt a pre-
sumed prejudice standard for other collateral due process
challenges to underlying deportation orders in Section 1326
prosecutions suggest the answer we reach today -- that
Garcia-Martinez must demonstrate actual prejudice. See
United States v. Leon-Leon, 35 F.3d 1428, 1431-32 (9th Cir.
1994) (requiring actual prejudice where immigration judge
failed to translate crucial inquiries); Proa-Tovar, 975 F.2d at
594-95 (requiring actual prejudice where alien is deprived of
direct judicial review of deportation order). In Leon-Leon, we
stated that "[t]he only circumstance under which we sug-
gested no showing of prejudice was necessary was`when the
administrative proceedings were so flawed' that an effective
judicial review of a deportation, which might otherwise have
been prevented, would be foreclosed." Leon-Leon, 35 F.3d at
1431; see also Proa-Tovar, 975 F.2d at 595 (concluding that
in the absence of any "discretionary authority that might have
prevented the deportation," the defendant "bears the burden of
proving prejudice"). Therefore, we have indicated that we will
presume prejudice only where discretionary relief from depor-
tation is available.11
[7] This case fits squarely within the logic of our prior
cases because Officer Najera had no discretionary authority to
grant Garcia-Martinez relief from deportation. As noted
above, Garcia-Martinez "would have been deported anyway."
Leon-Leon, 35 F.3d at 1431. Because he conceded his guilt --
that he was an illegal alien convicted of an aggravated felony
-- Garcia-Martinez was statutorily barred from obtaining any
relief from deportation. See 8 U.S.C. S 1228(b)(5). Conse-
quently, even if we were to find institutional bias at a level
sufficient to implicate our notions of fundamental fairness, we
would not presume prejudice. To prevail, Garcia-Martinez
must demonstrate actual prejudice, a showing he has con-
ceded he cannot make.
III. Conclusion
We therefore affirm Garcia-Martinez's conviction.
AFFIRMED.
_______________________________________________________________
FOOTNOTES
*The panel finds this case appropriate for submission without oral argu-
ment pursuant to Fed. R. App. P. 34(a)(2).
**The Honorable Charles R. Weiner, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by designation.
1 "Issuing Service officer means any Service officer listed in S 239.1 . . .
as authorized to issue notices to appear." 8 C.F.R. S 238.1(a). Section
239.1 lists more than twenty types of INS officials who qualify as issuing
officers.
2 The Notice of Intent also stated that judicial review of any final admin-
istrative order was available. The district court found, however, that no
judicial review was available. See Lewis v. INS , 194 F.3d 539, 541 (4th
Cir. 1999) ("Thus, under [8 U.S.C. S 1252(a)(2)(C),] there is plainly no
appellate recourse from a final order of removal for an alien who is
removable . . . because he has committed an aggravated felony.");
Valderama-Fonseca v. INS, 116 F.3d 853, 855 & n.1 (9th Cir. 1997) (not-
ing the same). On appeal, the government apparently concedes that
S 1252(a)(2)(C) barred direct judicial review of the deportation order.
3 "Deciding Service officer means a district director, chief patrol agent,
or another immigration officer designated by a district director or chief
patrol agent, who is not the same person as the issuing Service officer."
8 C.F.R. S 283.1(a).
4 Whether Garcia-Martinez's waiver was knowing and intelligent and
whether he has shown prejudice are not at issue on appeal.
5 8 U.S.C. S 1326(d) provides that:
In a criminal proceeding under [8 U.S.C. S 1326], an alien may
not challenge the validity of the [underlying ] 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.
This provision partially codifies the due process standard governing collat-
eral attacks established by the Supreme Court in United States v.
Mendoza-Lopez, 481 U.S. 828 (1987). See United States v. Estrada-
Torres, 179 F.3d 776, 780 (9th Cir. 1999) petition for cert. filed _______
U.S.L.W. _______ (U.S. June 22, 2000) (No. 99-10166).
6 8 C.F.R. S 238.1(b)(2)(i) provides in relevant part:
The Notice of Intent shall set forth the preliminary determina-
tions and inform the alien of the Service's intent to issue a . . .
Final Administrative Removal Order, without a hearing before an
immigration judge. . . . The Notice of Intent shall include allega-
tions of fact and conclusions of law. It shall advise that the alien:
has the privilege of being represented, at no expense to the gov-
ernment, by counsel of the alien's choosing . . . ; may inspect the
evidence supporting the Notice of Intent; may rebut the charges
within 10 calendar days after service of such Notice (or 13 calen-
dar days if service of the Notice was by mail).
7 The term "special inquiry officer" was replaced by "immigration
judge" in 1973. See Aleinikoff & Martin, supra, at 109.
8 Garcia-Martinez argues that the role of special inquiry officers was
more similar to that of current immigration judges than of deciding Ser-
vice officers because special inquiry officers were deemed "specially qual-
ified" to conduct deportation and beginning in 1956, like immigration
judges, they had to be lawyers. This argument is without merit, however,
because deciding Service officers also must be specifically designated for
that position, see 8 C.F.R. S 238.1(a), and at the time of the Marcello deci-
sion, in 1955, no lawyer requirement existed, see Aleinikoff & Martin,
supra, at 109.
9 Garcia-Martinez also asserts that his due process rights were violated
because 8 U.S.C. S 1252(a)(2)(C) barred direct judicial review of his
removal. This argument also fails because he cannot show the requisite
actual prejudice. See United States v. Proa-Tovar, 975 F.2d 592, 595 (9th
Cir. 1992) (en banc) ("A defendant who seeks to exclude evidence of a
deportation order in a prosecution under 8 U.S.C.S 1326 must do more
than demonstrate deprivation of the right to a direct appeal from that
order. The defendant also bears the burden of proving prejudice.").
10 Only the Fifth Circuit has addressed whether prejudice may be pre-
sumed under Mendoza-Lopez in the context of collateral challenges based
on adjudicator bias, holding that it may not. See Benitez-Villafuerte, 186
F.3d at 658-60. Every circuit to consider collateral challenges to deporta-
tion orders on other grounds, however, including ours, has required a
showing of actual prejudice. See Proa- Tovar , 975 F.2d at 595; see also
United States v. Loaisiga, 104 F.3d 484, 487 (1st Cir. 1997); United States
v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); United States v.
Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994); United States v. Meraz-
Valeta, 26 F.3d 992, 998 (10th Cir. 1994); United States v. Fares, 978
F.2d 52, 57 (2d Cir. 1992); United States v. Holland, 876 F.2d 1533, 1536
(11th Cir. 1989).
11 This conclusion comports with the concept of structural error in the
criminal context. The Supreme Court has recognized that some errors can
never be harmless because "[w]ithout . . . basic protections [including an
unbiased adjudicator], a criminal trial cannot reliably serve its function as
a vehicle for determination of guilt or innocence. " Rose v. Clark, 478 U.S.
at 577. Where, as here, however, a defendant has conceded his guilt, the
reliability of the underlying proceeding is not in dispute.