Kеvin Eric Scott appeals from a judgment of the United States District Court for the Eastern District of New York (Sif-ton, J.), convicting him, after a jury trial, of illegal reentry into the United States after deportation, in violation of 8 U.S.C. § 1326(a). This case has tracked a long, sinuous, almost Kafkaesque course.
This is the second time it has been before us. In 2003, we remanded the case for the district court to reconsider its denial of Scott’s motion to dismiss the indictment in light of
United States v. Perez,
On remand, Scott again challenged his indictment, under 8 U.S.C. § 1326(d), by collaterally attacking the deportation order upon which the charge was predicated. Scott claimed that he was prejudiced during the deportation proceeding by his counsel’s ineffective assistance' — -namely, his failure to move for a waiver of deportation under § 212(c) of the Immigration & Nationality Act (“INA”) of 1952, 8 U.S.C. § 1182(c) (repealed Sept. 30,1996).
Despite our decision in Perez, the district court again denied Scott’s motion to dismiss the indictment; and it upheld his conviction for illegal reentry. United States v. Scott, No. 02-0332 (E.D.N.Y. Feb. 9, 2004).
We now conclude that Scott was prejudiced by his counsel’s ineffеctive assistance and that entry of the underlying deportation order was “fundamentally unfair” within the meaning of 8 U.S.C. § 1326(d). We therefore reverse the district court’s denial of Scott’s motion to dismiss his indictment.
BACKGROUND
Kevin Eric Scott is a thirty-one-year-old Jamaican native. In 1981, at the age of eight, Scott moved to the United States with his family and became a lawful permanent resident. He attended grade school, high school, and college in New York. Scott’s mother, father, two sisters, and several other family members also live in New York. Between 1991 and 1996, Scоtt held various jobs in New York.
In October 1989, at the age of sixteen, Scott was convicted of grand larceny (3rd degree) in Queens, New York. Scott was seen putting a motorcycle into a stolen van. He received five years’ probation.
In May 1995, Scott was convicted in the Bronx, New York, of criminal possession of stolen property (3rd degree). Scott reportedly sold two stolen vehicles to an undercover officer. He was sentenced to three- to six-years’ incarceration. Scott served this sentence in thе New York State Shock Incarceration Program (“SIP”), “an alternative form of correctional life stressing a highly structured and regimented daily routine which includes extensive discipline and counseling.” N.Y. Comp.Codes R. & Regs. tit. 7, § 1800.6. Because of his successful completion of the SIP, Scott was released from custody after only six months.
In July 1995, while Scott was still in the SIP, the Immigration and Naturalization Service (“INS”) ordered Scott to show cause why he should not be deported based on his two New York convictions for crimes of “moral turpitude.” * Scott was *114 also instructed to report any change of address or phone number to the immigration court.
In October 1995, Scott appeared before the immigration judge (“IJ”) and requested an opportunity to retain an attorney. The hearing was adjourned. In December 1995, another hearing was adjourned because Scott’s counsel could not be there.
On January 11, 1996, Scott’s counsel appeared at a third hearing, but this time Scott did not. At the hearing, the IJ stated his belief that Scott was eligible for discretionary relief from deportation under § 212(c) оf the INA — i.e., “waiver of deportation.” His counsel conceded that without the waiver Scott was deportable based on his two prior convictions. The IJ, therefore, instructed counsel to file a § 212(c) application in a month, i.e., no later than February 12, 1996. Counsel stated that he did not need more time to file. The IJ scheduled the § 212(c) hearing for March 19th.
Despite the IJ’s instructions, Scott’s counsel never filed an application for § 212(c) relief.
Shortly after the January 11th hearing, Scott was released from state custody and taken into INS custody. He was released on an immigration bond.
On July 30,1996, the IJ convened another deportation hearing. This time neither Scott nor his counsel appeared. The IJ observed that notice of the hearing was delivered to counsel’s address of record. But, unbeknownst to the judge, counsel’s address had changed. Based on the findings made at the January 11th hearing, the IJ issued an order of deportation in absen-tia.
In September 1996, Scott appealed the deportation order to the Board of Immigration Appeals (“BIA”). His attorney stаted that his office had relocated at the end of January 1996, but that he had “forgotten to send a change of address notice to the New York Immigration Office.” Attached to the appeal was an affidavit by Scott stating that he had not been notified of the July 30 deportation hearing.
Later that month, Scott was arrested in New York for attempted auto theft. At the arrest, burglar’s tools were found on his person.
Two years later, in August 1998, the BIA dismissed Scott’s appeal because the BIA was precluded from considering an appeal from a deportation order entered in absentia. The proper way to challenge such an order was to petition the IJ to reopen the deportation proceedings.
In September 1998, Scott was convicted in New York of possessing burglar’s tools, a misdemeanor, in connection with his 1996 arrest. He was sentenced to thirty days’ incarceration.
In March 2001, Scott was taken into INS custody. A month later, Scott was deported to Jamaica. At some point between April and October 2001, Scott returned to the United Stаtes.
In October 2001, Scott was arrested in New York and charged with: (1) grand larceny (4th degree); (2) illegal possession of vehicle identification number plates; and (3) criminal possession of stolen property (5th degree).
In March 2002, Scott was indicted for illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a), in the Eastern District of New York.
*115 In April 2002, Scott moved to dismiss the indictment for illegal reentry under Fed.R.Crim.P. 12(b)(2). Scott argued that his 1996 deportation proceeding, conducted in absentia, was fundamentally unfair and thus could not serve as thе basis for a reentry indictment. Specifically, Scott claimed that his attorney had been ineffective, thus violating his due process rights. According to Scott, had his attorney filed a § 212(c) application in February 1996, his deportation would have been waived. In support of this claim, Scott cited his fifteen years of residence in New York, his strong family ties to the United States, education in New York, completion of the SIP, and a criminal history that involved neither violence nor drugs.
On May 31, 2002, the Eastern District of New York (Sifton, J.) denied Scott’s dismissal motion on procedural grounds. United States v. Scott, No. 02-0332 (E.D.N.Y. May 31, 2002). The court ruled that Scott could have appealed the BIA’s 1998 decision to this Court on the ground of attorney incompetence, but had failed to do so. Therefore, Scott could not meet the requirement of § 1326(d) that he have been deprived of the opportunity for judicial review of the underlying deportation order. Nor did Scott notify the Immigration Office of his address upon release from state custody in 1996.
In June 2002, Scott sought to reargue his motion to dismiss before Judge Sifton, claiming that he was denied a fair opportunity to seek judicial review of the BIA’s decision because he was never notified of the BIA’s 1998 dismissal of his appeal. As proof of his diligence, Scott proffered a document from his INS file dated October 28, 1995, which proved that he had indeed provided his new address to the INS. Although acknowledging that the BIA’s decision was not accompanied by an affidavit of service, the Government characterized as “implausible” Scott’s contention that he had no notice of the BIA decision.
In July 2002, Judge Sifton denied Scott’s motion for reargument. United States v. Scott, No. 02-0332 (E.D.N.Y. July 10, 2002). In doing so, the court: (1) recognized that Scott’s claims raised “serious questions about whether he had the opportunity for judicial review;” but (2) declined to resolve that issue, because even if it were true, “the entry of the deportation order was not fundamentally unfair” under 8 U.S.C. § 1326(d). The court reasoned, in part, that Scott’s 1998 misdemeanor conviction for possession of burglar’s tools would have undermined his application for § 212(c) relief by showing lack of rehabilitation.
Scott proceeded to trial. The jury found him guilty of illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a). Judge Sifton sentenced him to 41 months’ imprisonment.
Scott appealed the denial of his motion to dismiss the indictment. While the appeal was pending, we decided
United States v. Perez,
On remand, Scott argued that Perez required dismissal of the indictment. Scott submitted the declaration of Manuel D. Vargas, an immigration lawyer, stating that Scott “would have been likely to have *116 been granted a 212(e) waiver had he been afforded a waiver hearing during his deportation proceedings back in 1996.” Vargas also stated that, between 1988 and 1996, immigration judges “would issue a decision orally on the day of the 212(c) waiver hearing in about one half of cases, and would issue decisions in writing generally within six mоnths of the 212(c) waiver hearing date in the other half of cases.” Although the Government could not proffer any additional evidence to show that Scott had been given notice of the BIA’s 1998 dismissal, the Government urged the court to deny Scott’s motion because he was not “a strong candidate” for § 212(c) relief.
In February 2004, Judge Sifton once again denied Scott’s motion to dismiss:
[I]f defendant had been granted 212(c) relief [in 1996], whether or not the INS decided to appeal that decision, once defendant received his later conviсtion [in 1998], the INS could have, and doubtless would have, reopened deportation proceedings against him.
United States v. Scott, No. 02-0332 (E.D.N.Y. Feb. 9, 2004). The court also held that Scott’s 1998 misdemeanor conviction for possessing burglar’s tools “alone would have been sufficient to warrant ... deportation.” Moreover, the court opined that Scott would not have received § 212(c) relief, even if his 1998 misdemeanor conviction had been disregarded.
Scott now appeals the denial of his motion to dismiss the indictment.
DISCUSSION
Because it entails mixed questions of law and fact, we review
de novo
the district court’s denial of Scott’s motion to dismiss the indictment.
United States v. Fernandez-Antonia,
Under § 1326 of the INA, it is a crime for a deported or removed alien to enter, attempt to enter, or be found in the United States. 8 U.S.C. § 1326(a). “An alien can defend against such a charge by challenging the validity of the deportation order upon which the charge is predicated.”
United States v. Copeland,
Congress effectively codified the holding of Mendoza-Lopez in 8 U.S.C. § 1326(d), which provides:
(d) In a criminal proceeding [for illegal reentry], an alien may not challenge the validity of the 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.
8 U.S.C. § 1326(d).
In
United States v. Perez,
First, we found that Perez had fulfilled the exhaustion requirement of § 1326(d)(1) *117 by appealing to the BIA the denial of his motion to reopen his deportation proceedings. Id. at 101.
Under the second prong, § 1326(d)(2), we held that Perez had been deprived of the opportunity for judicial review because: (a) his counsel failed to file, after stating that he would, a § 212(c) application, which “fell below thе level of performance expected of competent counsel;” and (b) Perez was thereby prejudiced because “he ha[d] shown that he was eligible for § 212(c) relief and that he could have made a strong showing in support of his application for such relief.” Id. at 101-02 (“Deprivation of the opportunity for judicial review can be established by demonstrating ineffective assistance of counsel, and the failure of counsel to file a § 212(c) application can constitute ineffective assistance of counsel.”).
Finally, under the third prong, § 1326(d)(3), we held that the entry of the order against Perez was “fundamentally unfair” because he had shown, under § 1326(d)(2), ineffective assistance of counsel, which constituted a fundamental procedural error that prejudiced him. Id. at 104.
In collaterally attacking his 1996 deportation order, Scott invokes Perez, claiming that he has satisfied each of § 1326(d)’s three prongs — namely, that: (1) he exhausted his administrative remedies by challenging the 1996 deportation order on due process grounds before the BIA; (2) he was deprivеd of the opportunity for judicial review because his lawyer never filed a § 212(c) application on his behalf and because he (Scott) was never given notice of the BIA’s 1998 dismissal of his appeal; and (3) the 1996 deportation order was fundamentally unfair because his lawyer’s failure to seek § 212(c) relief was a prejudicial and fundamental procedural error.
I. Sections 1326(d)(1) & (2): Exhaustion of Administrative Remedies and Deprivation of the Opportunity for Judicial Review
Finding many parallels between
Perez
and the instant case, we conclude that Scott has satisfied the first two prongs of § 1326(d) (the exhaustion requirement and deprivation of the opportunity for judicial review) for the reasons stated in
Perez. See Perez,
II. Section 1326(d)(3): Fundamental Unfairness
The pivotal issue on this appeal is the third prong: whether “entry of the [deportation] order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). To establish “fundamental unfairness” under § 1326(d)(3), a defendant “must show both a fundamental procedural error and prejudice resulting from that error.”
Fernandez-Antonia,
A. Fundamental Procedural Error
In
Perez,
we found that counsel’s failure to seek § 212(c) relief “after stating that he would at the deportation hearing, and without later informing his client otherwise, fell below the level of performance expected of competent counsel.”
Perez,
B. Prejudice
Recently, in
Copeland,
we clarified that “prejudice” in the context of § 1326(d) “is shown where there is a
reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Copeland,
1. Role of Ex Post Data
As an initial matter, we address whether the district court erred in considering ex post data (i.e., Scott’s 1998 conviction for possession of burglar’s tools) in determining whether Scott was prejudiced by his counsel’s failure to seek § 212(c) relief two years earlier. In denying Scott’s motion to dismiss the indictment, the district сourt held that: (1) Scott’s 1998 conviction for possession of burglar’s tools would have undermined a showing of rehabilitation; (2) even if Scott “had been granted 212(c) relief, whether or not the INS decided to appeal that decision, once [Scott] received his later conviction [for possession of burglar’s tools], the INS could have, and doubtless would have, reopened deportation proceedings against him;” and (3) “[t]he existence of the new conviction alone would have been sufficient to warrant his deportаtion.”
Scott argues that his 1998 conviction for possessing burglar’s tools is ex post data that should have no bearing on whether he had a “reasonable probability” of obtaining § 212(c) relief in 1996. Consequently, according to Scott, the 1998 conviction is irrelevant to determining the issue of prejudice. We agree.
We begin our analysis with the language of § 1326(d)(3), which requires an alien to demonstrate that “the entry of the [deportation] order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3) (emphasis added). The statute’s focus on the “entry” of the order suggests a temporal limitation on the district court’s inquiry. In other words, the statutе itself indicates that, contrary to the district court’s analysis, the only pertinent issue is whether entry of the deportation order in 1996 prejudiced Scott — regardless of Scott’s potential de-portability for some later crimes.
The BIA’s decision in
Matter of Gordon,
20 I. & N. Dec. 52,
To allow the IJ to withdraw § 212(c) relief based on subsequent crimes, the BIA reasoned in Gordon, “would be to leave the *119 alien in a tenuous state indefinitely, without the benefit of the procedural safeguards afforded in a new deportation hearing.” Id. (emphasis added). Similarly, as we are presently concerned about the prоcess afforded to Scott at his deportation proceeding in 1996, it would be anomalous to consider criminal conduct after that date.
Nor are our recent decisions to the contrary. In
Copeland,
we remanded for the district court to consider whether the defendant-alien was prejudiced by the lack of a § 212(c) hearing.
Copeland,
Based on the foregoing principles, we hold that § 1326(d)’s prejudice inquiry does not extend beyond the fairness of the deportation order itself. That is, in assessing whether the defendant-alien had a reasonable probability of not being deported at his proceeding but for counsel’s incompetence, the district court should reconstruct events as they existed at the time of the disputed deportation proceeding, without considering future occurrences.
We now consider the other two ways in which the district court considered Scott’s 1998 conviction. The Government seems to concede that the court erred in reasoning that “the INS could have, and doubtlеss would have, reopened deportation proceedings against him.” See Gordon, 20 I. & N. Dec. at 56 (“Reopening may not serve as the vehicle by which subsequent crimes are considered after a section 212(c) waiver has been granted.”).
Nonetheless, the Government maintains that Scott’s additional conviction in 1998 for possession of burglar’s tools is a crime of moral turpitude, which would have warranted new deportation proceedings. See 8 U.S.C. § 1227(a)(2)(A)(ii). We need not resolve this issue, however, because whether the INS could initiate new deportation proceedings against Scott for the 1998 conviction has no bearing on the fairness of the deportation order entered against Scott on July 30,1996.
2. The Merits: Was Scott Prejudiced?
For the reasons that follow, we conclude that Scott had a “reasonable probability” of receiving § 212(c) relief in 1996 and, perforce, that Scott was prejudiced by his counsel’s ineffective assistance.
While in effect, § 212(c) of the I & N Act (repealed 1996) permitted certain aliens to seek a discretionary waiver of deportability. In “considering a 212(c) application, аn immigration judge [had to] balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appeared to be] in the best interests of this country.”
Lovell v. INS,
Favorable factors include: (1) family ties to the United States; (2) many years of residency in the United States; (3) hardship to the alien and his family upon deportation; (4) United States military service; (5) employment history; (6) community service; (7) property or business ties; (8) evidence attesting to good character; and, in the case of a convicted criminal, (9) proof of genuine rehabilitation. Id.
Several factors would have weighed in favor of granting § 212(c) relief to Scott in 1996 — fifteen years of residence in New York, strong family ties to New York, young age of lawful arrival in United States, and employment and education in New York.
See, e.g., Perez,
Although the parties dispute the degree of rehabilitation a defendant-alien must achieve, Scott makes a legitimate claim under any reasonable standard that he could have persuaded an IJ in 1996 that he was rehabilitated, given his successful completion of the SIP.
Compare Matter of Buscemi,
19 I.
&
N. Dec. 628, 635,
Scott’s criminal record as of 1996 would undoubtedly have weighed against § 212(c) relief. Prior to being ordered deported in 1996, Scott had four convictions, for which he was sentenced to five years of probation, three days of community service, two to four years of imprisonment, and three to six years of imprisonment, respectively. In
Perez,
we found that the alien could have made a strong showing for § 212(c) relief despite his single conviction for a drug trafficking offense, for which he was sentenced to six months’ imprisonment.
See Perez,
There is some indication, as the district court suggested, that, given his “lengthy
*121
criminal history,” Scott may have been required to show “unusual or outstanding equities” in his favor.
Matter of Burbano,
20 I.
&
N. Dec. 872, 875,
We also find noteworthy that, between 1989 and 1995, more than one-half of the applications filed for § 212(c) relief were granted.
INS v. St. Cyr,
Based on these factors, we conclude that Scott had a “reasonable probability” of receiving § 212(c) relief in 1996. Thus, the failure of Scott’s counsel to seek § 212(c) relief was prejudicial and rendered entry of the deportation order “fundamentally unfair” within the meaning of § 1326(d). Accordingly, we hold that the deportation order was unlawful and that the district court erred in denying Scott’s motion to dismiss the indictment charging him with illegal reentry.
We do not express any opinion on Scott’s future deportation proceedings, if any, except to emphasize that his illegal reentry conviction is expunged from his record.
CONCLUSION
For the foregoing reasons, we REVERSE the judgment denying Scott’s motion to dismiss the indictment and quash his conviction for illegal reentry.
Notes
At this time, Scott had two additional convictions in New York. He was convicted in 1994 of unauthorized use of a vehicle and sentenced to three days of community service. *114 In 1995, Scott was convicted of criminal possession of stolen property, for which he was sentenced to two- to four-years’ imprisonment, which ran concurrently with his other 1995 conviction for criminal possession of stolen property.