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United States v. Adame-Orozco

June 4, 2010


Appeal from the United States District Court for the District of Kansas (D.C. No. 6:09-CR-10046-WEB-1).

The opinion of the court was delivered by: Gorsuch, Circuit Judge.


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

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 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 re-entry 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.


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 re-entry prosecution (Section I.B), before proceeding to analyze the arguments he presents for our review (Section II).


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.*fn1 In their view, Mr. Adame-Orozco's convictions constituted "aggravated felonies" sufficient to warrant deportation under 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1101(a)(43)(B).*fn2 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, 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 still-operative 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.

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 ...

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