Case: 13-11346   Date Filed: 06/16/2014   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11346
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:12-cr-14088-JEM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JOSE SERRANO MOJICA,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 16, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jose Serrano Mojica, a native and citizen of Mexico, appeals his conviction

for illegal reentry after deportation. See 8 U.S.C. § 1326(a), (b)(2). Mojica argues

that his indictment should have been dismissed based on an alleged impropriety in

the underlying order of deportation. We affirm.

      We review de novo the denial of a motion to dismiss based on the invalidity

of the underlying removal order. United States v. Zelaya, 

, 1297

(11th Cir. 2002). To prevail in a collateral challenge to the order of deportation, an

alien must prove that he “exhausted any administrative remedies that may have

been available to seek relief against the order”; “the deportation proceedings at

which the order was issued improperly deprived [him] of an opportunity for

judicial review”; and “the entry of the order was fundamentally unfair.” 8 U.S.C.

§ 1326(d). The entry of an order of deportation is not fundamentally unfair unless

the outcome of the removal proceeding would have been different but for the

alleged error. 

.

      The district court did not err by denying Mojica’s motion to dismiss. Mojica

argues that the entry of his order of deportation in 1996 was fundamentally unfair

because he was misadvised by his attorney and the immigration judge that he could

not obtain a waiver from the order of deportation, but Mojica was ineligible for a

waiver when he was deported. Although the Attorney General in 1996 exercised

some discretion to waive a deportation order, he could not grant a waiver if an


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alien had been “convicted of . . . murder . . . or an attempt or conspiracy to commit

murder.” 8 U.S.C. § 1182(h) (1996). The Attorney General could not have

granted Mojica a waiver because, in 1995, he was convicted of attempted first

degree murder. Moreover, if Mojica had applied for relief from deportation, see 

he would have been ineligible for that relief because he had not

maintained a “lawful unrelinquished domicile of seven consecutive years” in the

United States. Mojica became a lawful resident of the United States on December

3, 1990, when the Immigration and Nationalization Service granted his application

for temporary residency as an agricultural worker, and his lawful residency ended

less than six years later on September 27, 1996, when an immigration judge

entered an order deporting Mojica and he waived his right to appeal that order.

Because Mojica failed to prove that his deportation was fundamentally unfair, he

was not entitled to have his indictment dismissed.

      We AFFIRM Mojica’s conviction.




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