383 F.3d 92 | 3rd Cir. | 2004
CHERTOFF, Circuit Judge. Court of New Jersey, Middlesex County.
Torres voluntarily returned to the Jose Augustin Torres appeals his Dominican Republic but on May 23, conviction for unlawful re-entry into the 1998, he attempted to re-enter the United United States after having been deported. States. On July 18, 2002, Torres was indicted for illegal re-entry after deportation in Torres’s 1993 conviction rendered him removable. [1] INS officials therefore violation of 8 U.S.C. § 1326. The indictment also charged that, prior to his detained Torres at the point of his 1998 removal, Torres had been convicted of an entry and placed him in removal aggravated felony, making him subject to proceedings. In July of 1998, a hearing the enhanced penalties set forth in section was held before an Immigration Judge (IJ) 1326(b)(2). Torres filed a motion to at which Torres was not represented by dismiss the indictment, arguing that the counsel. The IJ informed Torres of his underlying removal order was flawed and rights during and after the hearing, could not, therefore, support a conviction including his right to appeal the outcome for unlawful re-entry. The District Court of his removal proceedings. The IJ then denied the motion to dismiss. Reserving found Torres removable as charged, and his right to appeal, Torres pled guilty on ordered him removed to the Dominican February 24, 2003. On May 15, 2003, the Republic at Torres’s request. Torres District Court sentenced Torres to 27 accepted the IJ’s decision, and did not months imprisonment, three years appeal the IJ’s determination. At no time supervised release and a $100 special assessment. Torres appeals, maintaining during the hearing, however, did the IJ inappropriate predicate for a conviction inform Torres that he was eligible for any under 8 U.S.C. § 1326. See United States form of discretionary relief from removal. v. Mendoza-Lopez, 481 U.S. 828 (1987). Torres was removed on September 2,
After the District Court held an 1998. Despite his removal and without initial hearing on Torres’s motion, Torres authorization, Torres was found yet again sought to admit expert testimony on his in the United States on February 25, 2002. motion. The District Court, finding the Torres’s indictment under 8 U.S.C. § 1326 testimony to be irrelevant, denied Torres’s followed on July 18, 2002. request to admit expert testimony. Before the District Court, Torres Simultaneously, the District Court denied moved to dismiss the indictment Torres’s motion to dismiss the contending that the order of removal upon indictment. [3] Torres then pled guilty to the which it was based was flawed. Torres indictment, subject to his right to appeal. argued that, during his 1998 removal The District Court imposed sentence and, proceedings, he was entitled to be soon after, issued a written opinion considered for discretionary relief from explaining its decision to deny Torres’s removal under section 212(c) of the motion to dismiss. Torres timely Immigration and Nationality Act (“INA”), appealed. 8 U.S.C. § 1182(c) (1995) (repealed by
We have jurisdiction under 28 Illegal Immigrant Reform and Immigrant U.S.C. § 1291, and review this issue of Responsibility Act (IIRIRA), Pub. L. No. law de novo . See Idahoan Fresh v. 104-208, Div. C, § 304(b), 1996 Advantage Produce, Inc., 157 F.3d 197, U.S.C.C.A.N. (110 Stat.) 3009-597). [2] Torres attributed the IJ’s belief that Torres was not eligible for 212(c) relief as being [3] We note that, in the wake of St. based on an erroneous conclusion of law Cyr, only one Circuit has adopted the that was later corrected by the Supreme position Torres advocates. Compare Court’s decision in INS v. St. Cyr, 533 United States v. Aguire-Tello, 353 F.3d U.S. 289 (2001). Further, Torres asserted
1199, 1207-10 (10th Cir. 2004) (en banc), that the IJ’s failure to inform him of his and United States v. Wilson, 316 F.3d eligibility for discretionary relief rendered 506, 509-511 (4th Cir. 2003), and United t h a t r e m o v a l p r o c e e d i n g
States v. Mendoza-Mata, 322 F.3d 829, unconstitutional—and therefore an 832 (5th Cir. 2003), and United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. [2] The discretionary relief from 2002), and United States v. Roque- removal provided for in 8 U.S.C. § Espinoza, 338 F.3d 724, 728 (7th Cir. 1182(c) was commonly referred to as 2003), with United States v. Ubaldo- “212(c) relief.” For convenience, we will, Figueroa, 364 F.3d 1042, 1051 (9th Cir. occasionally, use that term. 2004). 202 (3d Cir. 1998) (exercising plenary and who are returning to a review of legal issue of statutory lawful unrelinquished construction); United States v. Goldberg, d o m i c i l e o f s e v e n 67 F.3d 1092, 1097 (3d Cir. 1995) consecutive years, may be (holding that questions of constitutional admitted in the discretion of waiver are reviewed de novo ). the Attorney General . . . .
The first sentence of this
II.
subsection shall not apply to Torres’s 1998 removal order was an alien who has been an element of his offense of illegal re- convicted of one or more entry. See 8 U.S.C. § 1326. According to aggravated felonies and has Torres, at the time of his 1998 removal served for such felony or proceeding, he was wrongly denied f e l o n i e s a term o f consideration for 212(c) relief from imprisonment of at least 5 removal. In order to address Torres’s years. challenge, it is necessary for us to briefly
See 66 Stat. at 187 (codified at 8 U.S.C. § rehearse the recent history of the 1182(c) (1995)); see also St. Cyr, 533 U.S. immigration laws. at 294-95. Thus, for aggravated felonies, A. the critical threshold for eligibility for 212(c) relief was a sentence below five The 1952 INA contained a years. provision excluding from the United States aliens convicted of the illicit traffic In 1996, Congress eliminated the in narcotics. See 66 Stat. 182-187; see Attorney General’s discretion under INA also St. Cyr, 533 U.S. at 294-95. The section 212(c) to waive removal for aliens same provision, which was section 212(c) excludable for having committed even of the INA, granted the Attorney General non-aggravated controlled substance discretion to waive removal in the case of offenses. See Anti-Terrorism and lawful permanent residents who had Effective Death Penalty Act (AEDPA) § resided in the United States for at least 440(d), Pub. L. No. 104-132, 110 Stat. seven years, so long as they had served 1277; Illegal Immigrant Reform and less than five years in prison for an Immigrant Responsibility Act (IIRIRA) § “aggravated” felony (separately defined at 304(b), Pub. L. No. 104-208, 110 Stat. 8 U.S.C. § 1101(a)(43) (1995)): 3009-597. The five-year threshold was
also thereby eliminated. The question Aliens lawfully admitted for soon arose whether the 1996 elimination permanent resident who of the Attorney General’s discretion temporarily proceeded operated retroactively. That is, in the abroad voluntarily and not wake of AEDPA and IIRIRA, did the under an order of [removal], Attorney General retain discretion to grant 212(c) relief from removal for aliens Soriano and the Courts of Appeals whose non-aggravated removable offense decisions that followed it took the position occurred prior to the change in the law, that the elimination of 212(c) relief but whose removal had not yet been enacted by AEDPA and IIRIRA acted effected? retroactively; that is, 212(c) relief was not
available to any criminal alien whose The first challenge to retroactive removal would be effected after the application of this broader preclusion of effective dates of AEDPA and IIRIRA. 212(c) relief came from aliens who had pled guilty to aggravated felonies prior to In 2001, the Supreme Court the enactment of AEDPA and IIRIRA but resolved the question through an appeal who served less than five years from a denial of a writ of habeas corpus. imprisonment. This group of aliens would See St. Cyr, 533 U.S. at 315. The Court have maintained the possibility of 212(c) reversed Soriano, and held that the relief if they faced removal before the elimination of 212(c) relief effected by effective dates of AEDPA and IIRIRA. AEDPA and IIRIRA was not retroactive. [4] Seeking to retain their opportunity for Thus, the Court explained, 212(c) relief 212(c) relief after the new laws became remained available on the same terms after effective, these aliens argued, in part, that the effective dates of AEDPA and IIRIRA they had entered pleas of guilty to the to aliens who pled guilty before AEDPA aggravated felonies in an effort to keep the sentence imposed below the five-year and IIRIRA. Torres argues that the IJ’s failure to
consider the availability of 212(c) relief
B.
was a fundamental error because St. Cyr Because of the timing of Torres’s later established that, at the time he was narcotics convictions and subsequent ordered removed, Torres was actually removal, he was wrongly precluded from eligible to be considered for 212(c) relief. seeking 212(c) relief because of the then- Importantly, Torres also asserts that the prevailing view that AEDPA and IIRIRA IJ’s error of law denied him an applied retroactively. In 1993, Torres pled opportunity for judicial review of his guilty to committing a drug offense and removal order. According to Torres, his was sentenced to less than five years’ opportunity to seek judicial review of the imprisonment. Under the law at that time, IJ’s decision was effectively precluded by Torres was removable, see 8 U.S.C. § the IJ’s failure to disclose that Torres 1182(a)(2)(A)(i)(II) (1995), but also would have been eligible for consideration eligible to be considered for 212(c) relief. for discretionary relief but for the reigning See 8 U.S.C. § 1182(c) (1995). [5] interpretation of AEDPA and IIRIRA.
Torres reasons that, acting pro se , he But Torres’s removal proceedings would have no reason to know that, but did not begin until 1998—after the for Soriano, he was eligible for effective dates of AEDPA and IIRIRA. discretionary relief. Had the IJ so At that time, the view binding on the IJ informed him, he might have sought adjudicating Torres’s removal proceeding judicial review—in the BIA or in the was that aliens like Torres were subject to federal courts—in an effort to change the the post-AEDPA/IIRIRA rules, and law. Torres therefore argues that he therefore were not eligible for 212(c) should be permitted, in this criminal action relief. Presumably for this reason, the IJ for illegal re-entry, to challenge the IJ’s did not inform Torres that 212(c) relief conduct during his removal proceeding. from removal might be available to him.
III.
May Torres collaterally attack the 1998 removal order that satisfies an [5] According to statistics maintained element of his conviction for illegal re- by the Executive Office of Immigration entry? Review, 212(c) relief was granted in more than half the cases to which it applied. An alien subject to illegal re-entry See Julie K. Rannik, The Anti-Terrorism
prosecution under 8 U.S.C. § 1326 may and Effective Death Penalty Act of 1996: challenge the underlying removal order A Death Sentence for the 212(c) Waiver, only under certain circumstances. 28 U. Miami Inter-Am. L. Rev. 123, 150
Mendoza-Lopez, 481 U.S. at 839. In n.80 (1996); see also St. Cyr, 533 U.S. at Mendoza-Lopez, two Mexican nationals 296 n. 5. were separately arrested in Nebraska, District Court and the Eighth Circuit transported to Colorado, and placed in a agreed in part, permitting the aliens’ group deportation hearing where they collateral challenge at the threshold. appeared pro se . Id. at 830-31. At the
The Supreme Court, at the hearing, the IJ: (1) did not inform them of Government’s request, assumed that the their right to counsel; (2) discussed, at deportation proceeding was fundamentally least to some extent, their right to seek unfair, focusing instead on the threshold suspension of deportation; and (3) question of whether an alien indicted for accepted waiver of their appeal rights. criminally violating 8 U.S.C. § 1326 could See id. at 831 & n.4. The aliens were collaterally challenge the deportation order ordered deported to Mexico, and that satisfying an element of that offense. Id. deportation order was effected on at 834 & n.8, 839-40. The Court found November 1, 1984. Id. at 830. At the that nothing in section 1326 permitted an time of their deportation, the two aliens alien to bring such a collateral attack. See were provided with a copy of an INS form id. at 837. informing them that a return to the United States without permission would But, the Court concluded, due constitute a felony. Id. process requires that a “collateral
challenge to the use of a deportation Just over a month later, both aliens proceeding as an element of a criminal were again separately arrested in offense must be permitted” when the Nebraska. Id. Both were then indicted for underlying proceeding is “fundamentally criminally violating 8 U.S.C. § 1326, and unfair” and when “the deportation both responded by challenging their proceeding effectively eliminates the right indictment on the ground that they were of the alien to obtain judicial review.” Id. denied fundamentally fair deportation at 839. Applying that rule to the case at hearings. Id. at 831. They alleged that hand, the Court concluded that the IJ’s their deportation proceeding was conduct—not adequately explaining fundamentally unfair because the IJ suspension of deportation and accepting a “inadequately informed them of their right waiver of the aliens’ appeal right despite to counsel . . . and accepted their that inadequate explanation—effectively unknowing waivers of the right to apply denied the aliens their right to judicial for suspension of deportation.” Id. [6] The review. Id. at 840. Coupled with the Government’s concession that the proceedings were fundamentally unfair, [6] Although the Supreme Court’s the Court concluded that the aliens’ holding was premised on the IJ’s acceptance of the aliens’ unknowing waiver of their appeal rights , it does not appear from the Court’s recitation of the aliens alleged error on that basis. Id. at procedural history of the case that the 831, 839-41. collateral challenge must be sustained. Id. an alien will be permitted to mount a at 842. collateral challenge to the underlying
removal order. See United States v. Congress later codified the Court’s Roque-Espinoza, 338 F.3d 724, 728 (7th holding in Mendoza-Lopez at 8 U.S.C. § Cir. 2003); United States v. Wilson, 316 1326(d), which states: F.3d 506, 509 (4th Cir. 2003); United (d) Limitation on collateral States v. Fernandez-Antonia, 278 F.3d attack on und erlying 150, 157 (2d Cir. 2002). [removal] order
In 1998, Torres did not pursue his I n a c r i m i n a l right to appeal the removal order proceeding under this underlying his current criminal conviction. section, an alien may The Government does not argue that he not challenge the failed to exhaust his administrative v a l i d i t y o f t h e remedies, as required by section [ r e m o v a l ] o r d e r 1326(d)(1). The only questions for us, described in subsection therefore, are whether, at the time of his (a)(1) of this section or removal, Torres was denied his subsection (b) of this opportunity for “meaningful judicial section unless the alien review” and whether entry of the order demonstrates that– was “fundamentally unfair.” See 8 U.S.C.
§§ 1326(d)(2)-(3). (1) the alien exhausted any administrative A. remedies that may have
Torres’s contention that he was been available to seek denied meaningful judicial review is relief against the order; threefold. First, he contends that all (2) the [removal] avenues of judicial review—other than proceedings at which administrative review—were legally the order was issued foreclosed to him, presumably by the improperly deprived the operation of either 8 U.S.C. § alien of the opportunity 1252(a)(2)(B) or (C), which bars direct for judicial review; and review of the removal proceedings of
certain felons. Second, he argues that, (3) the entry of the because the predominant view at the time o r d e r w a s of his removal was that 212(c) fundamentally unfair. discretionary relief was not available to 8 U.S.C. § 1326(d). These three aliens in his situation, judicial review from requirements are listed in the conjunctive, his removal order was meaningless, even meaning that all three must be met before if technically available. Third, Torres argues that, even if avenues of meaningful (C) Orders against criminal review were available to him, he was aliens denied review because, by not being
Notwithstanding any other informed that discretionary 212(c) relief provision of law, no court might be available to him, he was denied shall have jurisdiction to the opportunity to exercise considered review any final order of judgment in waiving his review rights. removal against an alien With respect to Torres’s first who is removable by reason contention, the Government does not of having committed a contest that one of 8 U.S.C. § criminal offense covered in 1252(a)(2)(B) or (C) would have section 1182(a)(2) or precluded Torres from seeking direct 1227(a)(2)(A)(iii), (B), (C), review of his removal order in the Fifth or (D) of this title, or any Circuit (where his removal proceedings offense covered by section took place). 1227(a)(2)(A)(ii) of this
title for which both Those statutory provisions say: predicate offenses are, (B) Denials of discretionary without regard to their date relief of commission, otherwise
c o v e r e d b y s e c t i o n Notwithstanding any other 1227(a)(2)(A)(i) of this title. provision of law, no court shall have jurisdiction to Id. In short, the two provisions act in review– concert to preclude direct judicial review
of most discretionary immigration (i) any judgment regarding determinations of the Attorney General, the granting of relief under and all immigration determinations with section 1182(h), 1182(i), respect to aliens removable for having 1229b, 1229c, or 1255 of committed certain criminal offenses, this title, or including controlled substance offenses. (ii) any other decision or See Bakhtriger v. Elwood, 360 F.3d 414, action of the Attorney 419 (3d Cir. 2004). General the authority for
T h e G o v e r n ment argues, which is specified under this nevertheless, that Torres had—and subchapter to be in the waived—an absolute right to appeal his discretion of the Attorney removal order to the BIA. Torres, for his General, other than the part, argues that such an appeal would granting of relief under have been futile in light of Soriano. 21 I. section 1158(a) of this title. & N. Dec. at 518. This difference of opinion is beside any subsequent proceeding the point. Even if BIA review had been in which the result of the available, Mendoza-Lopez clearly deportation proceeding is contemplates that “judicial review” used to establish an element include review beyond the administrative of a criminal offense. context. 481 U.S. at 837-39. Mendoza-
Id. (internal footnotes and citations Lopez unambiguously differentiated omitted, additional italics added). between an alien’s administrative removal Torres’s right to appeal to the BIA is, proceeding on the one hand, and judicial therefore, insufficient to establish that he review on the other, stating: was afforded meaningful judicial review. Our cases establish that The Government contends where a determination made alternatively that the availability to Torres in an administrative of habeas corpus afforded him the proceeding is to play a opportunity for judicial review required by critical r o l e i n th e 8 U.S.C. § 1326(d)(1). [7] After all, the subsequent imposition of a criminal sanction, there must be some meaningful
Government argues, that is the path Enrico The District Court adopted an St. Cyr employed in the eponymous eminently sensible reading of the statute. Supreme Court case to obtain the very See Roque-Espinoza, 338 F.3d at 729; relief Torres now contends was denied to Gonzalez-Roque, 301 F.3d at 49-50. As a him. See St Cyr, 533 U.S. at 314. The practical matter, the availability of habeas District Court here accepted the r e l i e f w o u l d h a v e a d e q u a t e ly Government’s reasoning, following a accommodated Torres’s interest in having growing number of federal courts holding his challenges—at least those made on that the availability to an alien of habeas s t a t u t o r y o r c o n s t i t u t i o n a l corpus relief affords meaningful judicial grounds—reviewed by a federal court. review. See, e.g., Roque-Espinoza, 338
The difficulty with the District F.3d at 729; United States v. Gonzalez- Court’s approach, however, is linguistic. Roque, 301 F.3d 39, 49-50 (2d Cir. For the term “judicial review” as used in 2002). [8] another part of the INA has now been interpreted by the Supreme Court to be limited to direct review, and to exclude
the closest Fifth Circuit precedent held habeas review. See St. Cyr, 533 U.S. at that the transitional rules of AEDPA and 311-12. [9] In St. Cyr, the court confronted IIRIRA did not eliminate all habeas review for criminal aliens. See Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997); Williams v. INS, 114 F.3d 82, 84 (5th Cir. the alien’s challenge to his underlying 1997). To be sure, Williams held that removal order was likely to fail AEDPA and IIRIRA precluded review of because—having actually taken an appeal claims that 212(c) relief should have been to the BIA but then opting not to pursue granted as a matter of discretion. 114 F.3d his argument farther—he had not been at 84. But no Fifth Circuit case held that denied meaningful judicial review. In our habeas review was unavailable to assert a discussion, we noted that the alien constitutional or statutory challenge to the abandoned habeas corpus, among other retroactive elimination by AEDPA and avenues for seeking relief. We did not IIRIRA of 212(c) relief. As such, at the hold, however, that the availability of time of his removal, Torres had the right habeas corpus meant that Fellows had to petition the Fifth Circuit federal courts been afforded “meaningful judicial for a writ of habeas corpus. review” or even that habeas corpus was
judicial review. See id. at 84-85. [8] The District Court based its reasoning, in part, on an unpublished [9] Although section 1252 uses both decision of this Court. See United States the terms “judicial review” and v. Fellows, 50 Fed. Appx. 82, 83 (3d Cir. “jurisdiction to review” to refer to court Oct. 29, 2002) (not precedential). To be review, the St. Cyr Court treated them as sure, in Fellows we noted, in dictum , that synonymous and so will we. See 533 U.S. 8 U.S.C. § 1252, several provisions of legislative history); United States v. which literally proscribed “judicial Lopez-Vazquez, 227 F.3d 476, 484 n.13 review” of the removal proceedings of (5th Cir. 2000); United States v. Estrada- aliens convicted of certain crimes. At Torres, 179 F.3d 776, 780 (9th Cir. 1999) least in part to avoid invalidating that overruled on other grounds by United provision on constitutional grounds, see States v. Rivera-Sanchez, 247 F.3d 905, 533 U.S. at 299-300, the Court held that 909 (9th Cir. 2001). Mendoza-Lopez the “judicial review” precluded in section expressly observed that “any alien held in 1252 of the statute meant only direct custody pursuant to an order of review and not habeas review. deportation may obtain judicial review of
that order in a habeas corpus proceeding.” If that is the definition of “judicial 481 U.S. at 836-37. Where a review” in 8 U.S.C. § 1252, does it follow congressional provision implements a that the identical term in 8 U.S.C. § Supreme Court ruling, there is a 1326(d) must mean the same thing, so that compelling reason to adopt an operative the availability to an alien of habeas definition used in that ruling. See Slack v. review at the time of removal is not the McDaniel, 529 U.S. 473, 481 (2000). sort of “judicial review” that bars collateral attack on the alien’s removal Furthermore, realism compels us to order in an action for criminal re-entry? acknowledge that when Congress used the
term “judicial review” in enacting section There is something to be said for 1326(d), it may not have anticipated that reading the terms differently in these two five years later the Supreme Court would parts of the same statute. See Atl. narrowly construe the same phrase in the Cleaners & Dyers v. United States, 286 context of section 1252 to exclude habeas U.S. 427, 433 (1932). As a matter of review. See St. Cyr, 533 U.S. at 330 reality, section 1326(d), which sets forth (Scalia, J., dissenting). Thus, we cannot the conditions under which an alien may confidently assert that Congress collaterally attack his removal order, was “intended” that the term “judicial review” a codification of the Supreme Court’s be defined identically in both sections. decision in Mendoza-Lopez. See United States v. Grey, 87 Fed. Appx. 254, 256 In fact, the St. Cyr Court’s (3d Cir. 2004) (not precedential); United interpretation of the phrase “judicial States v. Copeland, __ F.3d __, 2004 WL review” in section 1252 was strongly 1588088, at *4 (2d Cir. July 16, 2004); affected by the canon of constitutional United States v. Wilson, 316 F.3d at 515 avoidance, see 533 U.S. at 300, 305, n.1 (Motz, J., concurring) (citing to which impels a court to narrow statutory
language when necessary to confronting a statutory clash with the constitution. See, e.g., Crowell v. Benson, 285 U.S. 22, 62
at 311. But see 533 U.S. at 330 (Scalia, J., (1932); United States v. Bishop, 66 F.3d dissenting). 569, 587 (3d Cir. 1996). The Court 518, at 119 (1996), reprinted in 1996 believed that if the preclusion of judicial U.S.C.C.A.N. 924, 952. review under section 1252 were read
At any rate, we need not broadly to include preclusion of habeas conclusively resolve what suffices to review, the resulting bar might amount to constitute judicial review under section an unconstitutional suspension of habeas 1326(d). Torres’s collateral challenge corpus. See St. Cyr, 533 U.S. at 314. We suffers from a more obvious defect—he need not import St. Cyr’s narrow cannot establish that his removal order interpretation of “judicial review” into was “fundamentally unfair” as required by another provision in the statute where section 1326(d)(3). We will therefore there is no such issue of constitutional assume, arguendo , that Torres was denied avoidance. a meaningful opportunity for judicial On the other hand, we acknowledge review. the argument in favor of construing the
B.
term “judicial review” in section 1326(d) as we construe the same term in section Of the seven published cases 1252 after St. Cyr. As a general canon of factually similar to this one decided by the construction, the same words in the same Courts of Appeals in the wake of St. Cyr, statute are interpreted in the same way. most have been decided on the ground that See C.I.R. v. Ridgeway’s Estate, 291 F.2d the alien failed to establish that the 257, 259 (3d Cir. 1961). And it is not underlying removal proceeding was fundamentally unfair. [11] Compare Aguire- nonsensical to interpret section 1326(d) as requiring direct judicial review—and not Tello, 353 F.3d at 1207-10, and Wilson, merely habeas review—to foreclose a later 316 F.3d at 509-11, and Mendoza-Mata, collateral attack on the original removal. 322 F.3d at 832, and Lopez-Ortiz, 313 For, as we have held, the scope of direct F.3d at 231, and United States v. Leon- review is broader than the scope of habeas Paz, 340 F.3d 1003, 1007 (9th Cir. 2003) review. See Bakhtriger, 360 F.3d at 424. (remanding for findings on whether alien Congress could have intended that collateral review be foreclosed only by the fuller form of prior court review afforded
developments more than five years later in by direct appeal, although frankly we see St. Cyr and its progeny. no evidence that Congress had this [11] Mendoza-Lopez does not compel distinction in view when it enacted section a contrary result. There, based on the 1326(d). [10] See H.R. Conf. Rep. No. 104-
Government’s concession, the Supreme Court assumed that the proceeding was question of procedure.” [13] Lopez-Ortiz, had established prejudice and, therefore, fundamental unfairness), with Ubaldo- 313 F.3d at 230. Figueroa, 364 F.3d at 1051 (dismissing
As the Supreme Court and this indictment and holding that alien had court have repeatedly observed, removal successfully challenged underlying proceedings are civil in nature. See removal order), [12] and Roque-Espinoza, Harisaides v. Shaughnessy, 342 U.S. 580, 338 F.3d at 728 (upholding conviction 594 (1952); Perez v. Elwood, 294 F.3d because alien was afforded meaningful 552, 557 (3d Cir. 2002). Aliens in judicial review). removal proceedings are entitled to due This Court has not yet had occasion process, though the procedural protections to construe the term “fundamental[] accorded to them in that context measure unfair[ness]” as it is used in section less than the panoply available to a 1326(d)(3). We must determine, criminal defendant. See Dia v. Ashcroft, therefore, what must be shown in order to 353 F.3d 228, 238-39 (3d Cir. 2003) (en establish that a removal proceeding was fundamentally unfair within the meaning [13] Also, every Circuit to have of 8 U.S.C. § 1326(d)(3). considered the requirements for a In measuring whether an alien’s successful collateral challenge to a removal proceeding was “fundamentally removal order has held that the alien must unfair,” most circuits ask whether the alien make some showing that prejudice has was denied due process. See Ubaldo- resulted—i.e., whether the alien could Figueroa, 364 F.3d at 1047-48; Aguire- realistically have expected that the Tello, 353 F.3d at 1204; Wilson, 316 F.3d Attorney General would exercise at 510; Lopez-Ortiz, 313 F.3d at 230-31; discretion to give the alien relief from Fernandez-Antonia, 278 F.3d at 159. We removal. See Aguire-Tello, 353 F.3d at agree that “[f]undamental fairness is a 1207-10; Leon-Paz, 340 F.3d at 1005; Wilson, 316 F.3d at 510; Mendoza-Mata, 322 F.3d at 832; Fernandez-Antonia, 278 F.3d at 158 (collecting cases); United States v. Loaisiga, 104 F.3d 484, 487 (1st [12] But see Alvarenga-Villalobos v. Cir. 1997); United States v. Perez-Ponce, Ashcroft, 271 F.3d 1169, 1172-73 (9th 62 F.3d 1120, 1122 (8th Cir. 1995); Cir. 2001) (dismissing habeas attack on United States v. Espinoza-Farlo, 34 F.3d removal order underlying reinstatement of 469, 471 (7th Cir. 1994); United States v. removal, questioning whether the Ninth Holland, 876 F.2d 1533, 1536 (11th Cir. Circuit’s decision consonant with St. Cyr 1989). Since we find no fundamental operated retroactively, and concluding that unfairness, we have no reason to reach the alien was afforded meaningful judicial issue of whether section 1326(d) requires review). a showing of prejudice. banc); Lopez-Ortiz, 313 F.3d at 230. criminal proceedings, for example, the “The fundamental requirement of due Supreme Court and this Court have process is the opportunity to be heard at a repeatedly held that “mere error[s] of state meaningful time and in a meaningful law [do not amount to] a denial of due manner.” Mathews v. Eldridge, 424 U.S. process.” Engle v. Isaac, 456 U.S. 107, 319, 333 (1976) (citation and internal 121 n.21 (1982) (internal quotations quotation marks omitted); see also Dia, omitted); Smith v. Zimmerman, 768 F.2d 353 F.3d at 239. More specifically, in the 69, 73-74 (3d Cir. 1985). Similarly, while removal context, “due process requires we have reversed verdicts due to legal that an alien who faces [removal] be error that occurred at a civil trial, it is not provided (1) notice of the charges against generally part of our conclusion that the him, (2) a hearing before an executive or error rose to the level of a violation of due administrative tribunal, and (3) a fair process. See, e.g., Ambrose v. Township opportunity to be heard.” Lopez-Ortiz, of Robinson, Pa., 303 F.3d 488 (2002) 313 F.3d at 230 (citing Kwong Hai Chew (failure to grant judgment as a matter of v. Colding, 344 U.S. 590, 597-98 (1953)). law); Becker v. ARCO Chem. Co., 207 Torres does not contend he was denied F.3d 176 (3d Cir. 2000) (improper any of these. admission of evidence); Bohler-
Uddenholm Am., Inc. v. Ellwood Group., Rather, Torres contends that his Inc., 247 F.3d 79, 100-02 (3d Cir. 2001) removal proceeding was rendered (jury instruction). fundamentally unfair by the IJ’s erroneous conclusion—in accordance with the then- In fairness to Torres, he challenges reigning interpretation of the law—that not just the IJ’s legal conclusion, but also Torres was not eligible for discretionary the consequences that flowed from it. By relief. Torres essentially argues that the definition, when the IJ concluded that IJ’s error of law rose to the level of a due Torres was not eligible for 212(c) relief, process violation. We disagree. he did not consider Torres for that relief.
Torres alleges fundamental unfairness Without more, an error of law will because he maintains that he had a due ordinarily not rise to the level of a due process liberty interest in being considered process violation. [14] In the context of for 212(c) relief. We disagree. federal habeas corpus review of state At least three circuits have held that, because discretionary relief is necessarily a matter of grace rather than of [14] Indeed, the IJ’s understanding of right, aliens do not have a due process the law was not erroneous at the time. We liberty interest in consideration for such are extremely reticent to treat as relief. See Lopez-Ortiz, 313 F.3d at 231; fundamentally unfair an administrative Oguejiofor v. Attorney General, 277 F.3d official’s failure to predict that binding 1305, 1309 (11th Cir. 2002); Smith v. law will change. Ashcroft, 295 F.3d 425, 429-30 (4th Cir. may have no right to the favorable 2002). The possibility that the IJ would exercise of parole while at the same time have granted 212(c) relief in Torres’s case in some circumstances he may have a due was speculative at best. 8 U.S.C. § 1182 process interest in consideration for did not set out criteria for determining parole. See Greenholtz v. Inmates of Neb. whether relief from removal was Penal & Corr. Complex, 442 U.S. 1, 7 appropriate in a given case. Rather, it left (1979); Roque Espinoza, 338 F.3d at 729- to the IJ’s sole discretion whether to grant 30. On closer inspection, however, the that relief. Section 1182 was, therefore, parole cases actually refute any contention entirely a “piece of legislative grace, . . . that Torres had a protectible interest in convey[ing] no rights[ and] no status.” being considered for discretionary relief. Lopez-Ortiz, 313 F.3d at 231 (internal
In Greenholtz, the Supreme Court quotations omitted). It was not the kind of squarely held that there is no constitutional statute that “create[d] a vested liberty or right to parole. 442 U.S. at 7. The Court property interest.” Smith, 295 F.3d at 429. specifically held that the possibility of Even if Torres had presented a most early release “provide[d] no more than a sympathetic and compelling case for mere hope that the benefit will be granting section 212(c) relief, nothing obtained. . . . , a hope which is not would have required the IJ to actually protected by due process.” Id. at 11 grant that relief. (internal citations omitted). Where, To be sure, a meaningful however, a state creates a parole system distinction may exist between the claim that statutorily mandates release unless that an alien has a due process interest in specified conditions are met, a prisoner being considered for available eligible for parole consideration may be discretionary relief on the one hand, and entitled to certain due process protections. the very different claim that an alien has a See id. at 12; Frey v. Fulcomer, 132 F.3d due process interest in the favorable 916, 925 n.7 (3d Cir. 1997); Walker v. exercise of that relief. [15] Thus, Torres can Prisoner Review Bd., 769 F.2d 396, 400 argue that, although he had no right to the (7th Cir. 1985). As we stated in Frey, favorable exercise of 212(c) relief, he therefore, retained a due process interest in being
the Greenholtz line of considered for that relief. The contention decisions stands for the has some superficial support: A prisoner p r o p o s i t i o n t h a t state-created liberty interests will be found when the state [15] The Seventh Circuit has noted (1) establishes substantive this distinction, see Roque Espinoza, 338 predicates to guide official F.3d at 729-30, but no circuit has yet decisionmaking, and (2) considered whether it has merit when uses explicit mandatory applied to section 212(c). language in its the parole statute at issue in Greenholtz, regulations directing section 212(c) sets forth no presumption in the decisionmaker to favor of relief. It speaks merely to the reach a particular Attorney General’s “discretion.” As the outcome if the Fifth Circuit appropriately observed in s u b s t a n t i v e Lopez-Ortiz, section 212(c) is a matter of p r e d i c a t e s a r e “legislative grace.” 313 F.3d at 231 present. (internal quotations omitted). Thus, a
careful reading of Greenholtz and its Frey, 132 F.3d at 925 n.7. progeny reinforces our view that the Section 212(c) uses no “explicit denial of consideration here does not mandatory language” that could create in violate due process with regard to a an alien any protectible expectation of protectible liberty interest. We agree with entitlement to relief. Instead, relief under our sister circuits that have held no section 212(c) falls squarely within what fundamental unfairness in failing to the Court in Greenholtz described as a consider an alien for 212(c) relief. “mere hope” category of relief. [16] Unlike
Finally, although the IJ erroneously concluded that Torres was ineligible to be considered for 212(c) discretionary relief, [16] The language of section 212(c) the IJ did inform Torres of the reasons for stands in stark contrast to the statutory the Government’s charge that Torres was language that the Court in Greenholtz held
removable, did provide him an created an expectation of relief, which provided:
(c) His release would have “Whenever the Board of a substantially adverse Parole considers the release effect on institutional of a committed offender discipline; or who is eligible for release ( d ) H i s c o n t i n u e d on parole, it shall order his correctional treatment, release unless it is of the medical care, or vocational opinion that his release or other training in the should be deferred because: facility will substantially (a) There is a substantial enhance his capacity to lead risk that he will not conform a law-abiding life when to the conditions of parole; released at a later date.” (b) His release would depreciate the seriousness Greenholtz, 442 U.S. at 11 (quoting Neb. of his crime or promote Rev. Stat. § 83-1,114(1) (1976)) disrespect for law; (emphasis added).
opportunity to present a defense, did secure the waiver of Torres’s defense and appeal rights, and did grant Torres’s request to be deported to his native country. The IJ’s conduct in totality did not deny Torres due process.
Because Torres cannot establish that his removal proceeding was fundamentally unfair within the meaning of 8 U.S.C. § 1326(d), his attempt to challenge the removal order underlying his conviction for illegal re-entry into the United States fails.
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
NOTES
[1] Under recent amendments to the that his removal order cannot serve as a Immigration and Nationality Act, the term predicate to his conviction for unlawful re- “removal” embraces concepts of both entry. “deportation” and “exclusion.” See Illegal This case presents a question Immigration Reform and Immigrant concerning the scope of an alien’s right to Responsibility Act, Pub. L. No. 104-208, collaterally attack the removal order that Div. C, § 308, 1996 U.S.C.C.A.N. (110 underlies a conviction for unlawful re- Stat.) 3009-620, 3009-621; 8 U.S.C. § entry. 1229a. Saying that Torres was “removable” is equivalent to saying that I. he was “deportable.”
[4] St. Cyr, like Torres, Soriano and prison term threshold enumerated in 8 many of the other aliens who had U.S.C. § 1182(c). Thus, they had pled challenged whether AEDPA and IIRIRA guilty with the expectation under the could retroactively eliminate 212(c) relief, former law that, despite their felony had pled guilty to the offense that rendered convictions, they would remain eligible him removable. St. Cyr, 533 U.S. at 293. for discretionary relief from removal. The Supreme Court found this fact That being so, it would be unfair and significant because it was at least possible unconstitutional to retroactively apply the that St. Cyr had entered his plea in elimination of 212(c) discretionary relief reliance on the availability—and likely by AEDPA and IIRIRA against them. receipt—of 212(c) relief to avoid removal. The Attorney General disagreed. Id. at 321-24. We have recently held that See In re Soriano, 21 I. &. N Dec. 516, AEDPA and IIRIRA could not act Int. Dec. 3289 (BIA 1996). Eventually, so retroactively to eliminate 212(c) relief did a number of the Courts of Appeals. even for an alien whose removable offense See, e.g., DeSousa v. Reno, 190 F.3d 175, conviction was secured after the alien 186-87 (3d Cir. 1999); Requena- rejected a plea agreement in favor of trial. Rodriguez v. Pasquarell, 190 F.3d 299, See Ponnapula v. Ashcroft, 373 F.3d 480, 306-08 (5th Cir 1999). From 1996-2001, 494-96, 501 (3d Cir. 2004).
[7] Torres disputes that habeas corpus review of the administrative was actually available to him. At the time proceeding. . . . This of Torres’s removal proceedings, a circuit principle means at the very split was developing over whether least that where the defects AEDPA and IIRIRA eliminated recourse in an administrative to habeas corpus for aliens removable for p r o c e e d i n g f o r e c l o se having been convicted of felonies. The judicial review of that Supreme Court eventually resolved that proceeding, an alternative split, holding that AEDPA and IIRIRA did means of obtaining judicial not eliminate a criminal alien deportee’s review must be made recourse to habeas corpus. See St. Cyr, available before th e 533 U.S. at 314; Bakhtriger, 360 F.3d at administrative order may be 419-20. But before St. Cyr, the Fifth u s e d t o e s t a b l i s h Circuit was among those Circuits holding conclusively an element of a that AEDPA and IIRIRA eliminated criminal offense. . . . habeas corpus jurisdiction in so-called Depriving an alien of the criminal alien removal cases. See Max- right to have the disposition George v. Reno, 205 F.3d 194, 198 (5th in a deportation hearing Cir. 2000). Max-George, however, was reviewed in a judicial forum not decided until well after Torres’s requires, at a minimum, that removal proceedings were completed. At review be made available in the time of Torres’s removal proceedings,
[10] This also strains the literal notion fundamentally unfair. 481 U.S. at 839-40 of legislative intent pretty far, since it & n.17. We need not make the same assumes that, in 1996, Congress foresaw assumption here.
