United States v. Arita-Campos, No. 09-2368 (7th Cir. 06/08/2010)
 
In September 1993, fourteen-year-old Mario Arita-Campos was apprehended by immigration officials. Because he had entered the United States illegally without inspection, immigration officials determined that he was deportable.

When Arita-Campos subsequently failed to appear at his scheduled deportation hearing in February 1994, he was ordered deported in absentia. That order was never executed, however, because Arita-Campos never appeared for deportation. After being apprehended again nearly ten years later in Illinois, in 2004 the government finally deported AritaCampos per the original order of deportation.
 
Not to be deterred, Arita-Campos re-entered the country sometime during the following year, 2005. This time he was caught and charged with illegal re-entry after being deported in violation of 8 U.S.C. § 1326(a). But because the 1994 order of deportation, which is the under-lying basis for the current offense, was entered in absentia, Arita-Campos moved to dismiss the 2005 indictment, alleging that he never received notice of the 1994 deportation hearing.

After the district court denied Arita-Campos's motion to dismiss the indictment, he pled guilty to the charged conduct but reserved his right to appeal the denial of his motion to dismiss. We now affirm.
 
Background
 
In February 1994, a deportation hearing was held in Arita-Campos's case. The proceeding actually involved ten aliens, none of whom were present. The immigration judge called all ten individuals' names, and when none appeared, he indicated that he would proceed in absentia.
 
The immigration judge proceeded to admit exhibits consisting of the Orders to Show Cause and Certified Written Notices pertaining to and provided to each individual absent from the day's proceedings. After marking the exhibits, the judge made the following findings: the evidence proffered by the government was uncontroverted; the aliens failed to appear for their scheduled hearings, even though all had received proper notice by certified mail; and the aliens therefore abandoned any relief in defense of deportability. Based on the foregoing, the judge ordered all of the aliens deported to their respective countries.

Nearly ten years later, in May 2004, Arita-Campos was arrested in Illinois on the 1994 order of deportation. After a Warrant for Deportation was issued in June 2004 , Arita Campos was at last deported. But at some point during the following year, Arita-Campos re-entered the United States illegally.
 
In March 2005, Arita-Campos was once again apprehended, this time by local authorities in Indiana who believed that Arita-Campos had violated state law. This time, federal immigration officials indicted and charged Arita-Campos with re-entry after deportation in violation of 8 U.S.C. § 1326(a). But Arita-Campos again evaded arrest. He was finally discovered in Connecticut more than three years later, where in 2008 he was arrested on the grounds charged in the federal indictment.
 
After a hearing and numerous briefings, the district court found that because Arita-Campos failed to exhaust his administrative remedies or show that the hearing was fundamentally unfair, he was unable to challenge the validity of the original deportation order. The district court therefore denied Arita-Campos's motion to dismiss and granted the government's motion in limine.
 
Title 8, section 1326 of the United States Code makes it an offense to re-enter the United States illegally after having been deported.

Because an original order of deportation is a condition precedent to the operation of § 1326, the Supreme Court has held that a defendant may collaterally attack the deportation order underlying the offense. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). The flip side of this principle, of course, is that the government may only "rely on a prior deportation as an element of the crime of unlawful re-entry, [if] the proceedings leading up to the deportation . . . comport[ed] with principles of due process." United States v. Roque-Espinoza, 338 F.3d 724, 727 (7th Cir. 2003).
 
But it is the defendant's burden if he wishes to collaterally attack an underlying deportation order. See, e.g., United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000)

In short,  Arita-Campos fails to satisfy any of the three requirements contained in § 1326. To illustrate the shortcomings in Arita-Campos's position, we now turn to the three requirements, reviewing the denial of his motion to dismiss de novo. Santiago-Ochoa, 447 F.3d at 1019.
 
Exhaustion
 
To satisfy the exhaustion prong of § 1326, an alien must have filed a motion to reopen, appealed to the Board of Immigration Appeals, and pursued all other administrative remedies available to him. For purposes of § 1326, a failure to follow these procedures, including a failure to file a motion to reopen, will result in the inability to challenge the deportation order. United States v. Hinojosa-Perez, 206 F.3d 832, 836 (9th Cir. 2000).
 
Ordinarily an alien has ninety days from the entry of the final decision within which to file a motion to reopen. 8 U.S.C. § 1229a(c)(7)(C), 8 C.F.R. § 1003.23(b)(1). But this time constraint is inapplicable when the underlying order was made in absentia and the alien either received no notice of the proceeding or exceptional circumstances kept him from appearing. Id. § 1229a(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). In fact, if an alien can demonstrate that he was never notified of the proceeding, a motion to reopen may be filed "at any time." Id. § 1229a(b)(5)(C)(ii), 8 C.F.R. § 1003.23(b)(4)(ii).
 
In this case, Arita-Campos never filed a motion to reopen.
 
But even if this is not the case, thirty-nine days elapsed between Arita-Campos's 2004 arrest and his deportation. Again, assuming without deciding that he is correct in his assertion that he never received notice, Arita-Campos could have filed a motion to reopen during those thirty-nine days. See, e.g., Hinojosa-Perez, 206 F.3d at 836 (finding that eight days between arrest and deportation was sufficient time to file a motion to reopen). He did not. Because Arita-Campos never filed a motion to reopen-within ninety days, ten years, or even after his arrest-he failed to exhaust his administrative remedies. Consequently, he fails to satisfy § 1326's first prong.
 
Judicial Review
 
Nor can Arita-Campos satisfy the second prong of § 1326's requirements-he is unable to show that he was deprived of the opportunity for judicial review of the immigration judge's legal interpretations. The habeas corpus statute, 28 U.S.C. § 2241, is written broadly enough to allow an alien in custody to petition the federal courts for habeas corpus relief. See INS v. St. Cyr, 533 U.S. 289, 312-13 (2001).

As such, we have held that "an alien is not deprived of judicial review for purposes of [§] 1326(d)(2) as long as he has recourse to relief through a petition for habeas corpus." Santiago-Ochoa, 447 F.3d at 1019 (citing Roque-Espinoza, 338 F.3d at 729). If a defendant fails to show that he was unable to petition for relief under § 2241, he consequently fails to show that he was deprived of judicial review. Id.
 
In this case, Arita-Campos did not demonstrate that he was deprived of the opportunity for judicial review. He made no attempt to demonstrate that habeas relief was unavailable to him. "The fact that [Arita-Campos] chose not to make the attempt does not mean that he was deprived of all avenues of judicial review of his [deportation] order." Roque-Espinoza, 338 F.3d at 729.

Therefore, Arita-Campos has also failed to satisfy the second element of § 1326.
 
Fundamental Unfairness
 
Finally, we turn to the third showing required under § 1326, fundamental unfairness. To establish fundamental unfairness, a defendant must show both that his due process rights were violated and that he suffered prejudice from the deportation proceedings. De Horta Garcia, 519 F.3d at 661. We first take up the issue of due process.
 
The unavailability of discretionary relief does not amount to a deprivation of due process. Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008) ("[W]e have repeatedly held that an alien's right to due process does not extend to proceedings that provide only such discretionary relief because an appeal to discretion is not a substantive entitlement." . In fact, the majority of circuits, including our own, have held that "due process does not [even] encompass a 'right to be informed of eligibility for-or to be considered for-discretionary relief.' " De Horta Garcia, 519 F.3d at 661 (quoting Santiago-Ochoa, 447 F.3d at 1020).

Yet the only deprivation of due process alleged by Arita-Campos is that he was unable to seek voluntary departure. Because availability of voluntary departure is a discretionary decision, id. at 662, Arita-Campos has not shown a due process violation.
 
Nor has Arita-Campos shown that he was prejudiced by the deportation proceedings. In order to establish that he was prejudiced by a deportation proceeding, a defendant must prove that "judicial review 'would have yielded him relief from deportation.' " Id. at 661. Again, the only relief AritaCampos claims to have been deprived of is voluntary departure. Not only does he fail to satisfy his burden, but also he fails to even attempt to demonstrate that, with notice, he would have been granted relief from deportation. As a result, Arita-Campos has failed to satisfy § 1326's third requirement.
 
Because Arita-Campos cannot establish any of the elements required by 8 U.S.C. § 1326, his motion to dismiss was properly denied.

The district court's decision is therefore AFFIRMED.

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