                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                             No.    94-30663


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,



                                   VERSUS


                         RAUL ESTRADA-TROCHEZ,

                                                   Defendant-Appellant.




          Appeal from the United States District Court
              for the Eastern District of Louisiana

                         (September 27, 1995)

Before REYNALDO G. GARZA, GARWOOD, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

                              BACKGROUND

     Raul Estrada-Trochez was charged with one count of unlawful

re-entry into the United States after deportation in violation of

8 U.S.C. § 1326 and two counts of making false statements in

violation of 18 U.S.C. § 1546(b)(3).           Estrada-Trochez moved to

dismiss the unlawful re-entry charge, claiming that the original

deportation was accomplished in violation of due process.           The

district court denied the motion without a hearing.            Estrada-

Trochez then entered a guilty plea to the false statement charges,
but he conditioned his guilty plea to the unlawful re-entry charge

on the right to appeal the denial of the motion to dismiss.

Estrada-Trochez now appeals the denial of his motion to dismiss.

We affirm.

     The record is replete with INS error.                      There are long,

unexplained delays in the proceedings, missing court records, and

documents    misfiled       in   internal       Immigration   and   Naturalization

Service files. Despite these mistakes, we have pieced together the

facts concerning the important issues in this case.

     Estrada-Trochez, a citizen of Honduras, legally entered the

United States in 1963 at age six.                The INS initiated deportation

proceedings against him based on a 1977 state drug conviction. The

INS issued an Order to Show Cause on February 3, 1978.                   Appellant

and his attorney William Noland appeared before an Immigration

Court on     April    26,    1978   and     conceded    deportability.    At   this

appearance the Appellant was ordered to file his petition for

relief pursuant to 8 U.S.C. § 1182(c) (“§ 212(c) waiver”).                 On June

13, 1978, Estrada-Trochez timely filed the appropriate form I-191.

     Appellant and his attorney were notified by certified mail

that a hearing regarding his §212(c) waiver would be held on

November 8, 1979.           That hearing was postponed and Noland was

informed that he would receive notice of a rescheduled hearing at

a future date.       Ostensibly due to an oversight by the INS and the

Immigration Court, no action was taken in Estrada-Trochez’s case

for more than five and one-half years.

     On June 5, 1985 the INS filed a Motion for Decision requesting


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that the Immigration Court find that Estrada-Trochez had abandoned

his request for a § 212(c) waiver because he had failed to timely

file an I-191.       Five days later, the INS withdrew its motion,

conceding that Appellant had timely filed the I-191.

      Noland moved to withdraw as Estrada-Trochez’s counsel on June

12, 1985, asserting that he had not been in contact with his client

for several years and did not know how to locate him.                     Noland

averred that, although he “maintained the same law office address

and telephone number from 1978 to present” he never received a

response   from    the    Immigration   Court     regarding      his   motion   to

withdraw, nor did he receive any notices of hearings from the

Immigration Court.        No action was taken on the case for another two

years.

      On February 13, 1987, a notice of hearing was mailed to Noland

indicating that a hearing regarding Estrada-Trochez’s I-191 would

be held on March 27, 1987.            That hearing was rescheduled, and

Noland did not receive any further notice regarding a new hearing

date.    On May 21, 1987, a notice of a hearing to be conducted on

July 16, 1987, was mailed to Estrada-Trochez at his 1978 address

via   regular     mail.      The   notice   of    hearing   was    returned     as

undeliverable.

      The deportation hearing was held in absentia on July 21, 1987,

and the Immigration Court held that Estrada-Trochez was deportable

(as Appellant      had    admitted)   and   had   failed    to    establish     his

eligibility for discretionary relief.             A warrant of deportation

issued on August 5, 1987, and notice that he was to be deported was


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sent    to   Estrada-Trochez’s         1978     address   via   certified    mail.

Appellant asserts that he did not learn of the deportation order

until he filed a request for a replacement alien registration card

in 1992.      He was arrested by INS agents on June 30, 1992 and

deported to Honduras on July 8, 1992.

       INS agents arrested Estrada-Trochez on October 14, 1993 in

Louisiana after he had illegally re-entered the country on or about

January 7, 1993.         Appellant moved to re-open the 1987 deportation

proceeding, asserting that he was denied procedural due process

because neither he nor his attorney of record received notice of

the deportation hearing.         The Immigration Court denied the motion,

finding that the execution of a deportation order on July 8, 1992

foreclosed any right Estrada-Trochez had to contest the lawfulness

of the deportation.

                                   DISCUSSION

       Appellant’s claim that the District Court incorrectly applied

constitutional standards is reviewed de novo.                   United States v.

Perez-Torres, 15 F.3d 403, 406 (5th Cir. 1994).

       To prevail in a collateral challenge to a deportation order,

an alien must prove: (1) The deportation hearing was fundamentally

unfair;      (2)   the     defective      deportation     hearing       effectively

eliminated the alien’s right to direct judicial review of the

deportation order; and (3) the procedural deficiencies caused

actual prejudice.         United States v. Encarnacion-Galvez, 964 F.2d

402, 406 (5th Cir. 1992), cert. denied, 113 S.Ct. 391 (1992).

Prejudice     requires      a   showing       “that   there   was   a   reasonable


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likelihood that but for the errors complained of the defendant

would not have been deported.”   Id.   We hold that Estrada-Trochez

cannot demonstrate that the deportation hearing was fundamentally

unfair, and therefore, limit our discussion to the first prong of

the Encarnacion-Galvez test.

The Fairness of the Deportation Hearing

     An alien is entitled to due process under the Fifth Amendment

in his deportation hearing.    Patel v. INS, 803 F.2d 804, 806 (5th

Cir. 1986); Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985).

Holding a deportation hearing in absentia does not per se violate

due process.   Patel, 803 F.2d at 806.    An in absentia hearing is

permissible if the alien has been given “a reasonable opportunity

to be present at the proceeding” and “without reasonable cause

fails or refuses to attend.”      8 U.S.C. § 1252 (b).    Thus, we

address whether Estrada-Trochez had a reasonable opportunity to be

present at his deportation hearing and whether he failed to attend

without reasonable cause.

     Appellant argues that the notice sent to his last known

address was inadequate under 8 U.S.C. § 1252(b), thereby depriving

him of a reasonable opportunity to be present at the hearing.   He

argues that the INS “easily” could have notified him through his

father, sister, or brothers because all of their current names and

addresses were contained on his I-191. Estrada-Trochez also argues

that Noland was still his counsel of record and should have been

notified of the hearing.

     We hold that the notice sent to Appellant satisfies the


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requirements of constitutional due process.1           The INS mailed the

notice of the deportation hearing to the last address that Estrada-

Trochez provided to the INS.        Estrada-Trochez did not receive this

notice,   however,   because   he    had   moved   without   informing   the

government of his change of address, as required by 8 U.S.C. §

1305.   While his case was pending, the statutory duty remained on

the Appellant to “notify the Attorney General in writing of each

change of address and new address within ten days from the date of

such change . . . .”    8 U.S.C. § 1305.       Estrada-Trochez offers no

evidence that he complied with this law at any time during the nine

year delay.   Although the INS is certainly to blame for its abysmal

handling of Estrada-Trochez’s deportation, the ultimate fault lies

with the Appellant for his failure to comply with a law that is

essential to the administration of the INS.          This is particularly

true since Appellant had formally admitted his deportability and

the only issue remaining was whether Appellant could prove he was

entitled to relief.    Therefore, Estrada-Trochez had a reasonable

opportunity to be present at his deportation hearing and failed to

attend without reasonable cause.

     Appellant also argues that because the notice misstated the

date of the proceeding, the hearing was fundamentally unfair.            The



       The notice requirements for deportation proceedings are set
forth in 8 U.S.C. § 1252(b): "the alien shall be given notice,
reasonable under all the circumstances, of the nature of the charge
against him and of the time and place at which the proceedings will
be held." 8 U.S.C. § 1252(b). This statute does not impose a more
stringent notice requirement on the INS than required by the
Constitution. See Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314-15 (1950).

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hearing was held on July 21, 1987, but the notice indicated that

the hearing would take place on July 16, 1987.    Even though the

notice was flawed, we find that Appellant suffered no prejudice

from the discrepancy in the hearing dates.   Estrada-Trochez would

not have attended a hearing on either July 16 or July 21 as a

result of his failure to update his address pursuant to 8 U.S.C. §

1305.

                           CONCLUSION

     For the foregoing reasons, the district court’s judgment is

AFFIRMED.




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