                            In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-4050
MIGUEL ANGEL RAMOS,
                                                       Petitioner,
                               v.

ALBERTO R. GONZALES, Attorney General
of the United States*
                                                      Respondent.
                         ____________
                On Petition for Review of an Order
               of the Board of Immigration Appeals.
                         No. A77 862 762
                         ____________
     ARGUED SEPTEMBER 30, 2004—DECIDED JULY 12, 2005
                     ____________




    Before ROVNER, WOOD, and SYKES, Circuit Judges.
  WOOD, Circuit Judge. Until the recent enactment of the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231
(2005), which among other things amended the judicial
review provisions governing orders of removal in immigra-
tion cases, this case would have required a straightforward


*
  Pursuant to FED. R. APP. P. 43(c), we have substituted Alberto
R. Gonzales, the present Attorney General of the United States,
for his predecessor in office.
2                                                No. 03-4050

inquiry. If, as the government argued, Miguel Angel Ramos
was being removed because he had been convicted of a con-
trolled substance offense, we would have had jurisdiction
only to ensure that he was indeed the correct person, that
the offense qualified as one covered by § 242(a)(2)(C) of the
Immigration and Nationality Act (INA), 8 U.S.C.
§ 1252(a)(2)(C), and that Ramos raised no “substantial”
constitutional claims. See Yang v. INS, 109 F.3d 1185, 1192
(7th Cir. 1997); Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th
Cir. 2001). If those preliminary inquiries demonstrated no
flaws in the removal order, we would have lacked jurisdic-
tion to proceed any further with the case. Flores v. Ashcroft,
350 F.3d 666, 668 (7th Cir. 2003).
  The REAL ID Act has changed all of that. It amended
INA § 242(a) to permit the courts of appeals on a proper
petition for review to consider constitutional claims and
questions of law. See REAL ID Act § 106(a)(1)(A)(iii),
amending 8 U.S.C. § 1252(a)(2) by adding a new subpart (D).
This amendment was effective on the date of the enactment
of the statute, May 11, 2005, and applies to all appeals from
removal orders “issued before, on, or after the date of
enactment.” REAL ID Act § 106(b). We must therefore
consider Ramos’s arguments that the government violated
his constitutional rights in the proceedings that led to his
order of removal. We conclude that his rights were not in-
fringed, and we therefore deny Ramos’s petition for review.


                              I
  In August 2000, Nebraska officials arrested Ramos for
attempted possession of cocaine, charging him with viola-
ting Neb. Rev. Stat. §§ 28-201 and 28-416 (2003). Aside
from the fact that he was doing the wrong thing, he was al-
so in the wrong place at the wrong time. Ramos is a native
and citizen of Mexico, who had entered the United States at
some earlier point “without inspection,” as the euphemism
No. 03-4050                                                  3

goes. This arrest led to a nolo contendere plea in state court,
triggering a series of unfortunate events. Nebraska sen-
tenced Ramos to a fine of $500 and court costs. As with
many in his position, however, that formal punishment was
slight compared to the real-world consequences of his
mistake; his plea spelled the end to his effort to have his
status adjusted based on his marriage to a U.S. citizen.
Although the record on this part of the case is incomplete,
Ramos asserts in his reply brief that he had an I-130 family
petition approved for his benefit on August 17, 1992, and he
had remained in this country ever since, complete with
social security number and employment verification
documents. The immigration authorities ultimately denied
his application for adjustment on January 24, 2003, how-
ever, apparently because of the Nebraska conviction.
Finally, the conviction prompted the then-INS to initiate
removal proceedings against him (also on January 24,
2003), claiming that he was removable on two grounds:
first, as an alien who was present in the United States
without being admitted or paroled, INA § 237(a)(6)(A)(i), as
amended, 8 U.S.C. § 1182(a)(6)(A)(i); and second, as a
person who was automatically removable for committing a
controlled substance offense, INA § 212(a)(2)(A)(i)(II); 8
U.S.C. § 1182(a)(2)(A)(i)(II).
  On February 10, 2003, Attorney Bart A. Chavez entered
his appearance before the immigration court on behalf of
Ramos. He presented a form (EOIR-28) that Ramos pur-
portedly had signed, which authorized Chavez to represent
him. One of the first actions Chavez took on Ramos’s behalf
was to file a motion before the Nebraska court to set aside
Ramos’s drug conviction, relying on the authority conferred
by Neb. Rev. Stat. § 29-2264. That court granted the motion
in an order dated March 10, 2003, stating that “the adjudi-
cation previously entered by this Court is hereby set aside
and nullified, and the Court further orders that all civil
disabilities and disqualifications imposed as a result of said
adjudication are hereby removed.”
4                                                No. 03-4050

   After that date, proceedings continued before Immigration
Judge (IJ) James R. Fujimoto, who sits on the Chicago
immigration bench. Ramos, his lawyer, the witnesses, and
the government’s lawyer participated by teleconference
from Council Bluffs, Iowa, as we noted in an earlier decision
in this matter. See Ramos v. Ashcroft, 371 F.3d 948 (7th
Cir. 2004) (Ramos I). In that opinion, we rejected the
government’s argument that venue for this appeal properly
lies in the Eighth Circuit rather than this court. Id. at 949.
Although the government has now asked us to reconsider
that decision, based on a new order issued by Chief Immi-
gration Judge Michael J. Creppy that states that hearings
will be presumed to be where the parties and lawyers are
located, not where the IJ is, we decline the invitation.
Ramos I established the law of the case with respect to
venue for this proceeding, and we thus move on to the
merits.
  We said earlier that Ramos “participated” in the hearings
held in Council Bluffs before the Chicago judge, but one of
the points Ramos now raises before us is that he never
appeared in person during any of the three IJ hearings
leading up to his removal. At the preliminary hearing held
on March 24, 2003, Chavez appeared on behalf of Ramos
and announced that Ramos was waiving his right to appear
in person. After a brief discussion, Judge Fujimoto contin-
ued the hearing to April 28, 2003. At that time, Chavez
again appeared and again said that Ramos was waiving his
right to appear. Chavez also made two important conces-
sions at the April 28 hearing: he confirmed the existence of
Ramos’s substance abuse conviction (which by then the
Nebraska court had expunged); and he conceded the facts
alleged in the Notice to Appear relating to Ramos’s presence
in the United States without admission or inspection. The
judge then continued the hearing until May 12, 2003. At
that last hearing, Chavez again appeared for Ramos and for
the third time waived Ramos’s right to appear. At the
No. 03-4050                                                 5

conclusion of the hearing, the IJ issued an oral decision
ordering Ramos removed from the United States.
  In his opinion, the IJ found Ramos removable on both
grounds that the INS had alleged. Based on Chavez’s
representation that Ramos admitted the factual allegations
in the Notice to Appear, the IJ concluded that Ramos was
removable under § 212(a)(6)(A)(i) of the INA for being
present without admission or parole. With respect to the
Nebraska conviction, the judge first acknowledged the state
court’s action setting it aside. Nevertheless, the judge noted
that the Board of Immigration Appeals (BIA) had held in
Matter of Roldan, 22 I & N Dec. 512 (BIA 1999), that
dismissals under a state rehabilitative statute like
Neb. Rev. Stat. § 29-2264 do not erase a conviction for
immigration purposes. For that reason, the IJ found that
Ramos was also removable because he had a conviction
covered by 8 U.S.C. § 1101(a)(48)(A) (his controlled sub-
stance offense), for which there had been a formal judgment
of guilt and a form of punishment (the $500 fine).
  At that point, Ramos (represented by new counsel)
returned to the Nebraska court and secured an order
nunc pro tunc, which reissued the March 18 expungement
order and added the following language: “The Court further
finds that since the Defendant was sentenced to a fine only,
that rehabilitative efforts of the Defendant are not consid-
ered or relevant under Nebraska Revised Statutes § 29-
2264, and the Defendant is entitled to have said judgment
set aside without a showing of rehabilitation.” Equipped
with this order, Ramos went to the BIA and filed a motion
to remand the case to the IJ with instructions that the
decision be reconsidered. The BIA refused to do so. Instead,
it affirmed the IJ’s decision and denied the motion to
remand. It found no due process violation based on Ramos’s
lack of personal attendance at the three hearings. It said
nothing about any equal protection claim. It did, however,
find that Ramos had not met his burden under Matter of
6                                                No. 03-4050

Lozada, 19 I & N Dec. 637 (BIA 1988), of showing that his
counsel was ineffective; and it concluded that the convic-
tion, even with the extra language about rehabilitation,
sufficed for immigration purposes. On the last point, the
BIA relied on this court’s decision in Gill v. Ashcroft, 335
F.3d 574, 577-78 (7th Cir. 2003), which upheld the rule of
Matter of Roldan. Ramos then petitioned for review in this
court.


                              II
  Before this court, Ramos has presented two constitutional
arguments for relief: first, that the manner in which the
government conducted the proceedings before the IJ
violated his due process rights, and second, that it violates
equal protection principles to remove him based on his now-
expunged, minor state court conviction, when the govern-
ment could not remove him on that basis had he been
convicted under the analogous Federal First Offender Act
(FFOA), 18 U.S.C. § 3607. Our ability to reach these
arguments was limited before the passage of the REAL ID
Act. At this point, however, as we noted at the outset of this
opinion, the INA now says that “[n]othing in subparagraph
(B) or (C), or in any other provision of this Act (other than
this section) which limits or eliminates judicial review, shall
be construed as precluding review of constitutional claims
or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this
section.” REAL ID Act § 106(a)(1)(iii), amending 8 U.S.C.
§ 1252(a)(2). We therefore proceed directly to Ramos’s two
constitutional arguments.
  Due Process. Ramos is correct insofar as he argues that
the Fifth Amendment to the Constitution entitles aliens to
removal proceedings that comport with due process. See
Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Capric v.
Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). It is not
No. 03-4050                                                7

enough, however, to show that the procedures used fell
short in some constitutionally significant way. In order to
prevail on a due process claim, the petitioner must establish
that the violations that occurred were prejudicial to him.
Capric, 355 F.3d at 1087. The due process violation must
have been one likely to have an impact on the result of the
proceeding. Id. at 1087-88.
  Whether or not Ramos is correct that the IJ’s procedures
fell short of the constitutionally required standard, we con-
clude that he cannot show prejudice on this record. There is
no ironclad rule that aliens subject to removal procedures
have a right personally to be present for every stage of the
proceeding, unless extraordinary circumstances are present.
Cf. U.S. CONST. amend. VI; FED. R. CRIM. P. 43(a). To the
contrary, the INA allows a removal proceeding to take place
in the absence of the alien if that absence is “agreed to by
the parties.” See 8 U.S.C. § 1229a(b)(2)(A)(ii). Here, Ramos
signed an EOIR-28 form recognizing Chavez as his lawyer,
and Chavez then expressly waived appearance on Ramos’s
behalf on three separate occasions.
  Ramos argues, however, that this is not good enough, at
least where the IJ never asked him in person whether
Chavez was really his counsel of choice. He points to 8
C.F.R. § 1240.10(a)(1) as authority for this requirement.
Putting to one side the question whether a violation of this
regulation would at the same time violate Ramos’s due
process rights, we think that Ramos is probably reading too
much into the rule. That section reads as follows:
    (a) In a removal proceeding, the immigration judge
    shall:
    (1) Advise the respondent of his or her right to repre-
    sentation, at no expense to the government, by counsel
    of his or her own choice authorized to practice in the
    proceedings.
8                                                No. 03-4050

Although the regulation uses the word “shall” when refer-
ring to the judge’s duty, the point of this rule seems to be to
assure that the alien knows about the right to counsel
regardless of financial circumstances. When he has already
gotten a lawyer and the lawyer submits form EOIR-28, it is
hard to see how the IJ’s failure to issue the prescribed
advice would prejudice the alien.
  Even if we assume that there is something either in this
regulation or in due process standards generally that re-
quires that the alien be present for the critical stages of his
hearing, Ramos has not shown how the failure to meet that
requirement prejudiced him. See Kuschchak v. Ashcroft, 366
F.3d 597, 602 (7th Cir. 2004). He does not, even now,
challenge the truth of the five allegations on which the IJ
relied. Those allegations were as follows:
    1. Ramos is not a national of the United States.
    2. Ramos is a native of Mexico and a citizen of Mexico.
    3. Ramos arrived in the United States at or near an
    unknown place, on or about an unknown time.
    4. He was not then admitted or paroled after inspection
    by an Immigration Officer (or he arrived at a time or
    place other than as designated by the Attorney Gen-
    eral).
    5. He was, on September 22, 2000, convicted in the
    County Court of Hall County, Nebraska, for the offense
    of Attempted Possession of a Controlled Substance, to
    wit: Cocaine, in violation of sections 28-201 and 28-416,
    Nebraska Revised Statutes.
Before this court, Ramos has not even tried to contradict
those five points as a matter of fact. Allegations 1 through 4
are enough in themselves to support the order of removal,
before we even consider the legal issue Ramos has raised
about Allegation 5. Under the circumstances, there is no
need to discuss Ramos’s other due process complaints in
No. 03-4050                                                 9

detail. Whatever procedural slips the IJ may have made did
not, in the end, result in the kind of prejudice to Ramos that
would justify a remand for further proceedings on due
process grounds.
   We add for the sake of completeness that Ramos has not
denied that Nebraska convicted him of a cocaine offense. He
argues only that the state court’s action expunging his
conviction should relieve him of the legal consequences of
that conviction for immigration purposes. In Gill v.
Ashcroft, supra, however, we discussed 8 U.S.C.
§ 1101(a)(48)(A), which defines the term “conviction” for
purposes of 8 U.S.C. § 1227(a)(2)(B)(i). The statute requires
only a formal judgment of guilt entered by a court (which
includes a plea of nolo contendere) and some form of
“punishment, penalty, or restraint on the alien’s liberty.”
When those criteria are met, the government may remove
the alien. We wrote further that “[e]very court that has con-
sidered the subject believes that § 1101(a)(48)(A) governs
the handling of repeat offenders and that expungements (or
restorations of civil rights) under state law do not negate a
‘conviction’ for purposes of immigration law.” 335 F.3d at
577. Although the question in Gill had to do with the
treatment of deferred dispositions, the underlying decision
to defer to the BIA’s characterization of the conviction for
immigration purposes applies here as well. Thus, the
Nebraska conviction provides an independent basis for
rejecting Ramos’s challenge to the BIA’s decision.
  Equal Protection. Ramos’s equal protection argument
relies on the fact that the government is treating his state
conviction more harshly than it would an analogous con-
viction under the FFOA, 18 U.S.C. § 3607. See Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886) (holding that aliens are
entitled to equal protection of the law). The first problem
with this contention is once again Gill. Addressing a similar
point, this court held that there is a distinction between
prosecution in federal court and prosecution in state court,
10                                               No. 03-4050

and that we are bound to observe that distinction as long as
§ 1101(a)(48)(A) reads as it does. 335 F.3d at 578. Second,
Ramos’s premise—that someone with a FFOA conviction
would escape immigration consequences—is not necessarily
correct. We do not know what the BIA would do if it were
confronted with this situation, nor do we know whether its
decision would pass legal muster. All we can say is that
since the 1996 changes to the INA, the BIA has never used
the FFOA to preclude removal. Finally, Ramos’s assumption
that it is utterly irrational to treat the FFOA and state
convictions like his differently goes too far. State laws vary
considerably, and the BIA (as well as Congress) reasonably
might have thought that the law should entitle only persons
who actually have been charged and sentenced under the
FFOA to leniency for immigration purposes.


                             III
   While we realize that Ramos is paying a heavy price for
a drug deal that the prosecuting jurisdiction—Nebraska—
initially treated as a small-time misstep and later erased,
it is the price that Congress has prescribed under the immi-
gration statutes. Even if there were flaws in the procedures
that led to his order of removal, we can find no prejudice to
him as a matter of due process. Similarly, we reject his
equal protection challenge to his order of removal. The
petition for review is therefore DENIED.
No. 03-4050                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-12-05
