The government appeals from Judge Weinstein’s dismissal of an indictment charging Richard Copeland with illegal reentry into the United States after deportation. See 8 U.S.C. § 1326(a). Copeland collaterally attacked the validity of his deportation order as provided under Section 1326(d), and the district court held that his deportation was not a valid element of the criminal reentry charge because the underlying deportation hearing was not consistent with due process. We agree that most of the requirements of Section 1326(d) have been met. However, we remand for a hearing and findings on whether the defects in Copeland’s deportation hearing caused him prejudice.
BACKGROUND
a) Copeland’s History
Copeland, a Jamaican citizen, had been adopted by his grandmother, a naturalized citizen of the United States, in 1978. He came to the United States at age 12 in 1982 and lived in this country as a lawful permanent alien until he was deported in 1998. The district court found that at the time of his deportation, Copeland was living with and supporting his two children, ages 11 and 4, and their mother, all of whom are citizens of the United States.
Copeland was convicted of four New York state crimes prior to his deportation. Upon each arrest, he gave the police false names, social security numbers, addresses, and/or birth dates. On May 18, 1988, he *63 was arrested for grand larceny of a car, criminal possession of stolen property, and unauthorized use of a vehicle. Based on this arrest, Copeland ultimately pled guilty to disorderly conduct and was sentenced to three days in prison. On March 22, 1989, Copeland was arrested and charged with criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the third degree. Copeland failed to appear on the date set by the court, and a bench warrant for his arrest was issued. While the warrant in the weapons case was still out, Copeland was arrested under an alias on February 9, 1993, for attempted criminal sale of a controlled substance — crack cocaine — in the third degree. Still under the alias, Copeland pled guilty to this charge and was sentenced to a year in prison but apparently did not begin to serve his sentence. 1
The warrant on the weapons charge was returned after yet another arrest on September 18, 1995. At that time Copeland pled guilty under his own name to criminal possession of a weapon in the third degree for the 1989 arrest and was sentenced to a year in prison on that charge. The conduct leading to Copeland’s September 16, 1995 arrest involved serious violence. He pulled a man from a car at gunpoint, demanded money, and shot him in the throat when the man tried to escape. The victim was paralyzed by the shot. Copeland was charged with attempted murder, first degree robbery, first and fourth degree assault, criminal possession of a weapon in the second and third degrees, and menacing in the second degree. On October 27, 1995, Copeland pled guilty to criminal possession of a weapon in the second degree based on these charges and was sentenced to an 18 to 54 month term of imprisonment. Copeland served his three felony sentences concurrently, from October 13, 1995 to September 23,1998.
b) The Deportation
"While Copeland was incarcerated on his various sentences, the INS initiated deportation proceedings based on his conviction of the February 9, 1993 attempted criminal sale of a controlled substance. 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(A)(iii). A deportation hearing was held before an Immigration Judge (“IJ”) on August 7 and November 27, 1996. At the August hearing, the IJ began by informing Copeland of his right to an attorney and to appeal any decision by the IJ within 30 days of that decision. The IJ also told Copeland that because he was an alien, he would be deportable if the INS proved that he had been convicted of attempted sale of a controlled substance. The IJ stated that “[u]nder current law there is no waiver for deportability if you’re, had been convicted of, of violation of a controlled substance law,” because “the law changed April 1996 a couple a months ago ... and the new law says if you have a conviction for narcotics you’re not eligible for any form of relief.”
Copeland seemingly tried to ask whether the date of his conviction affected his eligibility for waiver:
Copeland: So, so that law it, it all depends umm ... if it was before April 19...
Judge: It doesn’t depend upon when the crime was com...
Copeland: Oh?
Judge: No! No! Goes by whether ... if you have ...
*64 Copeland: ... (unintelligible) what’s in your record.
Judge: Right. Alright, that’s what the law says now. As if and it says that. Okay? But speak to lawyers about it
The IJ then adjourned the hearing for three months to give Copeland time to find an attorney.
When the hearing resumed on November 27, 1996, Copeland appeared pro se. Copeland admitted that he was not a citizen of the United States, that he was a citizen of Jamaica, and that he had been convicted of attempted criminal sale of a controlled substance on September 27, 1993. 2 The IJ found Copeland “deportable from the United States as charged.” The following colloquy then occurred:
Judge: There’s no relief available to you anymore because the law changed in April. And the new law said that if you have a conviction for a controlled substances [sic] you’re deportable and there’s no relief. So I feel I have no alternative but to order you deported to Jamaica. You could accept this decision as a final decision or you can appeal my decision. Which would you prefer to do?
Copeland: I will accept this decision.
Copeland did not file an appeal with the Board of Immigration Appeals (“BIA”) within the 30 day time limit for such filings. Copeland remained in the United States, however, because of his incarceration in New York.
The “new law” referred to by the IJ was actually two laws: the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, enacted on April 24, 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), Pub.L. No. 104-208, 110 Stat. 3009-546, enacted on September 30, 1996 (collectively, “the 1996 Amendments”), which amended the Immigration and Nationality Act (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101
et seq.
Prior to these amendments, the Attorney General had broad discretion to cancel deportation orders for aliens who met certain residence requirements and had not served five years in prison for an aggravated felony.
See 8
U.S.C. § 1182(c) (repealed 1996);
INS v. St. Cyr,
During 1997 and 1998, however, several courts in this circuit and elsewhere ruled
*65
that Section 440(d) could not be applied retroactively in Copeland’s circumstances.
See, e.g., Goncalves v. Reno,
On September 22, 1998, after his deportation hearing but prior to the decision in St. Cyr, Copeland filed a motion to reopen his deportation proceedings and for a stay of deportation under Section 212(c). Copeland, now represented by counsel, based his motion in part on the argument that the IJ had breached his obligation under 8 C.F.R. § 242.17(a) to inform Copeland of his eligibility for Section 212(c) relief. The same IJ denied Copeland’s motion to reopen on the ground that, although Section 212(c) relief remained available to aliens whose deportation proceedings began prior to the passage of AEDPA, Copeland was ineligible for Section 212(c) relief because his deportation proceedings began after its passage.
Copeland appealed the IJ’s decision to the BIA on October 6, 1998, arguing that he was eligible for Section 212(c) relief. However, on November 24, 1998, before the BIA considered his appeal, Copeland was deported to Jamaica. On May 25, 1999, the BIA dismissed Copeland’s appeal as moot under 8 C.F.R. § 3.6(b) because Copeland had already been deported.
c) District Court Decision
Copeland reentered this country by February 22, 1999, at the latest. On December 1, 2001, he was arrested and thereafter indicted in the Eastern District of New York for illegal reentry into the United States. 8 U.S.C. §§ 1326(a),(b)(2); 18 U.S.C. § 3551 ei seq. On March 27, 2002, Copeland moved to dismiss the indictment on the grounds that his deportation order, an element of the crime of illegal reentry, was invalid.
At a hearing before Judge Weinstein, Copeland argued that he was not accurately advised of his right to appeal because the IJ incorrectly told him that no relief was available because of the 1996 Amendments. The district court scheduled another hearing to determine whether Copeland “really didn’t appreciate that he had a right to appeal!,] having been overborne” by the IJ. At that hearing, the court listened to the tapes of Copeland’s deportation hearings, heard testimony from an INS agent on Copeland’s criminal history, and asked Copeland about his age (27) and education (high school equivalency) at the time of his deportation hearing. The district court found that Copeland’s “will was not overborne” and that he made “a rational decision [not to appeal] — based upon the advice he then received, which ultimately turned out to be incorrect.” The court also found that the IJ effectively told Copeland that appeal would be futile, and Copeland rationally “decided not to waste his time and the government’s time by appealing.”
The district court then dismissed the indictment on the ground that the underlying deportation order violated Copeland’s due process rights and therefore could not be the basis for the prior deportation element in the illegal reentry charge.
United States v. Copeland,
The district court noted that, under Section 1326(d), a deportation order could be collaterally challenged in an illegal reentry criminal case if the alien 1) exhausted administrative remedies; 2) was deprived of the opportunity for judicial review; and 3) *66 showed that the proceeding was fundamentally unfair. Id. at 270 (citing 8 U.S.C. § 1326(d)). According to the court, Copeland satisfied the exhaustion requirement because, though he did not appeal to the BIA, “any attempt to do so would have been futile” given the then-current BIA interpretation of AEDPA. Id. at 271. Copeland was deemed by the court to have been denied judicial review because the applicable transitional rules of IIRIRA barred direct judicial review of deportation orders against aliens deported for. narcotics offenses. Id. Finally, Copeland’s deportation order was found to be “fundamentally unfair” because the IJ “not only failed to advise the defendant of the existence of discretionary relief, but affirmatively misled him by indicating he was ineligible for such relief.” Id. at 271-72. This unfairness was deemed prejudicial to Copeland because there was a “reasonable likelihood” that he would have been granted Section 212(c) relief. Id. at 272. Because the requirements of Section 1326(d) had been satisfied, the court dismissed the indictment.
This appeal by the government followed.
DISCUSSION
The adjudicative facts are not in dispute, and we review the issues of law
de novo. Elewski v. City of Syracuse,
a)
Collateral Attack on Deportation Orders
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. In
United States v. Mendoza-Lopez,
the Supreme Court held that “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.”
(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). We turn to the application of Section 1326(d)(1),(2), and (3) in the present matter.
1. Section 1326(d)(1): Exhaustion of Administrative Remedies
The district court held that Copeland had fulfilled the exhaustion requirement of Section 1326(d)(1) because an appeal to the BIA would have been futile in light of
Soriano.
However, we have since held that there is no futility exception, with one qualification described below, to statutory exhaustion requirements.
3
Theodoropoulos v. INS,
Nevertheless, under our caselaw, Copeland’s motion to reopen his deportation hearing and his appeal from the denial of that motion satisfied the exhaustion requirement of Section 1326(d). In
United States v. Perez,
we held that an alien who failed to appeal an IJ’s deportation order satisfied the exhaustion requirement of Section 1326(d) by making a motion to reopen his case and appealing the denial of that motion to the BIA.
2. Section 1326(d)(2): Denial of Judicial Review
Under Section 1326(d)(2), Copeland must demonstrate that he was denied an opportunity for judicial review. An alien is denied this opportunity, for example, if the IJ does not adequately inform him of his right to a direct appeal from a deportation order.
Mendoza-Lopez,
The availability of habeas review is sometimes deemed to constitute an opportunity for judicial review.
See Gonzalez-Roque,
Reading
Gonzalez-Roque
and
Mendozar-Lopez
in tandem, we hold that where habe-as review is technically available, judicial review will be deemed to have been denied if resort to a habeas proceeding was not realistically possible. In both decisions, the consequences of the availability of ha-beas review turned on the temporal interval between the order and physical deportation during which the alien could have filed a habeas petition. In
Mendoza-Lopez,
the deportation order was issued on or after October 30, 1984, in Denver, Colorado, and the aliens were deported — after being bused to El Paso, Texas — on November 1, 1984.
We read these precedents to indicate that where habeas review is potentially available, an opportunity for judicial review will still be deemed to have been denied where the interval between entry of the final deportation order and the physical deportation is too brief to afford a realistic possibility of filing a habeas petition. We read them further to establish a principle that where no realistic opportunity for judicial review by way of habeas review existed, an alien’s failure to seek such review will not be deemed to preclude *69 a collateral attack on a deportation order under Section 1326(d)(2). In the present case, Copeland had no realistic opportunity for habeas review not only because of the lack of time but also because of the legal uncertainties as to the availability of habe-as review.
Copeland’s deportation order became administratively final on November 27, 1996, when the IJ ordered him deported.
See 8
C.F.R. § 1003.39 (“Except when certified to the [BIA], the decision of the [IJ] becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs first.”) (formerly codified at 8 C.F.R. § 3.39). After deportation, further administrative and habeas review were precluded by a pre-IIRIRA provision which applied to Copeland under the transitional rules of IIRI-RA. That provision, former Section 106 of the INA, stated that “[a]n order of deportation ... shall not be reviewed by any court if the alien ... has departed the United States after the issuance of the order.” 8 U.S.C. § 1105a(c) (1995). Section 106 applied to aliens subject to IIRI-RA’s transitional rules governing judicial review — aliens who were in deportation proceedings “as of’ April 1, 1997, and in whose cases final orders of deportation were entered after October 30, 1996. IIR-IRA § 309(c). Copeland met these criteria, because his final deportation order was entered on November 27, 1996. Thus, Copeland was statutorily barred from filing a habeas petition after he was deported.
See Swaby v. Ashcroft,
Copeland therefore had habeas relief available, if at all, only before his deportation on November 24, 1998. However, had Copeland sought habeas review before filing the motion to reopen with the IJ and appealing the denial of that motion, he would have faced the defense that he had not exhausted his administrative remedies because his appeal to the BIA was still pending at the time of his deportation. An alien who waives his appeal cannot seek habeas relief when the order becomes final because such relief is not available unless a petitioner “has exhausted all administrative remedies available ... as of right.” 8 U.S.C. § 1252(d)(1). See also Theodoropoulos, 358 F.3d at 171. 7
*70
A complexity arises because Copeland has argued' that his initial failure to exhaust may have resulted from a waiver of appeal that was not knowing and intelligent.
See
note 6,
supra.
It is therefore possible, although we do not decide the question, that, if Copeland had not attempted to exhaust by pursuing a motion to reopen and had instead sought habeas review, he would have been afforded such review on the ground that his failure to exhaust administrative remedies was based oh an invalid waiver of appeal to the’ BIA.
See Mendoza-Lopez,
3. Section 1326(d)(3): .Fundamental Unfairness
“To show fundamental unfairness [under Section 1326(d)(3) ], a defendant ‘must show both a fundamental procedural error and prejudice resulting from that error.’ ”
Perez,
We turn first to the nature of the error in Copeland’s deportation hearing. There is a disagreement among the circuits over whether the failure to inform an alien of his right to seek discretionary relief can ever be a fundamental procedural error. The Fifth Circuit has stated that “[bjecause eligibility for § 212(c) relief is not a liberty or property interest warranting due process protection, we hold that the [IJ’s] error in failing to explain [the alien’s] eligibility does not rise to the level of fundamental unfairness,”
United States v. Lopez-Ortiz,
*71
Only the Ninth Circuit has held that an IJ’s failure properly to inform an alien facing removal of his right to seek discretionary relief may be fundamentally unfair.
United States v. Ubaldo-Figueroa,
We believe that a failure to advise a potential deportee of a right to seek Section 212(c) relief can, if prejudicial, be fundamentally unfair within the meaning of Section 1326(d)(3). To be sure, relief under Section 212(c) is not constitutionally mandated and is discretionary. It does not follow, however, that where an alien is erroneously denied information regarding the right to seek such relief, and the erroneous denial of that information results in a deportation that likely would have been avoided if the alien was properly informed, such error is not fundamentally unfair within the meaning of Section 1326(d)(3).
An error in a ruling by a lower tribunal is generally not deemed fundamental when a remedy was available on appeal but no appeal was taken.
See Alfano v. United States,
The cases holding that prejudicial misinformation about Section 212(c) relief is never a fundamental procedural error rely upon a property rights analysis that is utilized most frequently in Section 1983 cases.
See, e.g., McMenemy v. City of Rochester,
Critical to our reasoning, of course, is the distinction between a right to seek relief and the right to that relief itself, although often the concepts overlap as a practical matter. The decisions holding that a failure to inform an alien about Section 212(c) relief cannot be a fundamental error collapse this distinction and incorrectly assume that, because the grant of Section 212(c) relief is itself discretionary, the denial of a Section 212(c) hearing cannot be a fundamental procedural error.
See, e.g., Lopez-Ortiz,
Traditionally, courts recognized a distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand. Eligibility that was “governed by specific statutory standards” provided “a right to a ruling on an applicant’s eligibility,” even though the actual granting of relief was “not a matter of right under any circumstances, but rather is in all cases a matter of grace.”.
The issue, therefore, is not whether Section 212(c) relief is constitutionally mandated, but whether a denial of an established right to be informed of the possibility of such relief can, if prejudicial, be a fundamental procedural error. We believe that it can. Deportation usually has very serious consequences,
see, e.g., Fong
*73
Haw Tan v. Phelan,
St Cyr
also recognized the importance of being able to seek such relief and that the right to seek such relief, even if discretionary, cannot be lightly revoked. In the context of its retroactivity discussion, the Court noted that “IIRIRA’s elimination of any possibility of § 212(c) relief for people who entered plea agreements with the expectation that they would be eligible for such relief clearly ‘attaches a new disability, in respect to transactions or considerations already past.’ ”
St. Cyr,
Moreover, in
Perez,
we held a deportation proceeding to be fundamentally unfair when the erroneous advice of counsel caused an alien who was “eligible for § 212(c) relief and could have made a strong showing in support of such relief’ to fail to apply for waiver.
We turn now to whether that error prejudiced Copeland. Prejudice is shown where “defects in the deportation proceedings may well have resulted in a deportation that would not otherwise have occurred.”
Fernandez-Antonia,
In our view, however, the appropriate test for prejudice is the one used to decide ineffective assistance of counsel claims, namely, prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,”
Strickland v. Washington
Resolution of the prejudice issue in the Section 1326(d)(3) context is somewhat akin to a trial within a trial. The district *74 court must determine whether there is a reasonable probability that the alien would have obtained relief had he or she been informed of, and sought, a Section 212(c) hearing. The court must first obtain all of the facts relevant to the particular alien and then apply standards established under Section 212(c) to those facts, taking into account actual cases in which similarly situated aliens have been granted or denied discretionary relief.
A Section 212(c) determination involves a balancing of “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 appears in the best interests of this country.”
Matter of Marin,
16 I.
&
N. Dec. 581, 584 (BIA 1978);
accord Douglas v. INS,
“Where ... an alien is deportable by reason of two narcotics convictions, the alien must make a showing of unusual or outstanding countervailing equities to obtain a waiver of deportation.”
Lovell v. INS,
Because the parties to the present matter could not have anticipated the precise nature of our decision, it would not be appropriate for us to review the district court’s finding of prejudice on the present record. Specifically, although the record includes comprehensive evidence of Copeland’s criminal history, there is little detail about Copeland’s family relationships or other potentially favorable considerations. Such evidence would be essential to any finding that Copeland was prejudiced by the lack of a Section 212(c) hearing, given the fact that Copeland’s criminal record is quite serious. Moreover, the district court’s conclusion as to prejudice was based on an incomplete review of the relevant factors. Not only did the court lack the testimony just discussed, but it also declined to consider the full extent of Copeland’s criminal record. 9 However, Copeland’s entire criminal record at the time of his deportation is relevant.
*75 We therefore remand for findings based on a full record — supplemented if necessary by an evidentiary hearing — on the question of whether Copeland was prejudiced by the IJ’s failure to advise him of his right to seek Section 212(c) relief.
CONCLUSION
For the foregoing reasons, we hold that: (i) Copeland exhausted his administrative remedies by filing a motion to reopen and appealing the denial of that motion; (ii) Copeland was denied the opportunity for judicial review because direct review was unavailable and he never had a realistic opportunity to seek habeas review; and (iii) the IJ’s failure to inform Copeland of his right to seek discretionary relief was a procedural error sufficient to render the deportation order fundamentally unfair if that failure prejudiced Copeland. Because the record is inadequate with regard to whether Copeland was prejudiced, we vacate the dismissal of the indictment and remand to the district court for an eviden-tiary hearing and findings on that question.
Notes
. Copeland pled guilty to the crack cocaine charge on September 27, 1993 under an alias. Copeland, the INS, and the IJ seemingly believed that a formal conviction was entered on that date. However, it appears that Copeland was not formally convicted on that charge until October 16, 1995, that is, until after his 1995 arrest.
. It appears that Copeland pled guilty on September 27, 1993, but was not convicted until October 16, 1995. See note 1, supra. Because neither party discusses this discrepancy, the record is somewhat unclear. In any event, the precise date of conviction appears not to be material to the issues before us, and we do not resolve the discrepancy.
. In ruling to the contrary, the district court relied upon
Sousa v. INS.
. It is true that in
Perez
the motion to reopen was timely,
. The government suggests that Copeland’s failure to pursue a habeas action buttresses its claim that he did not exhaust administrative remedies. However, Section 1326(d)(l)’s exhaustion requirement applies to exhaustion of administrative, not judicial remedies.
See Perez,
. Copeland and the government dispute whether Copeland was denied direct judicial review because his waiver of appeal to the BIA was invalid — i.e. not knowing and intelligent. Where a waiver of the right to appeal is not knowing, an alien is deprived of the opportunity for judicial review.
See United States v. Fares,
. Theodoropoulos referred to the IIRIRA’s permanent rules quoted supra, but their exhaustion requirement is substantively identical to that in the transitional rules applicable to Copeland. See INA § 106(c) (formerly codified at 8 U.S.C. § 1105a(c)) ("an order of deportation or exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations").
.' It is true that in
Perez
the motion to reopen was timely,
. The district court stated at the September 18, 2002 hearing that it considered Copeland’s convictions other than the narcotics conviction for which he was deported irrelevant to the success of Copeland's collateral attack on his deportation proceeding. Specifically, the court asked for the exhibit documenting the conviction for which Copeland was deported. When provided with the exhibit, the court said “that is all I am concerned about. I am not concerned about his other record. That might very well result in the defendant's being denied any relief under 212(c).”