                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                     No. 11-1782
                                   ______________

                           UNITED STATES OF AMERICA


                                           v.


                                  BARTOLO PEREZ,

                                                  Appellant

                                    ______________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                  (D.C. No. 09-cr-352)
                     District Judge: Honorable William H. Walls

                                    ______________

                        Argued Under Third Circuit LAR 34.1(a)
                                 December 8, 2011

                  Before: HARDIMAN and BARRY, Circuit Judges,
                           and SLOMSKY, ∗ District Judge

                                (Filed: January 25, 2012)

      Susan C. Cassell [Argued]
      419 Lucille Court
      Ridgewood, NJ 07450

∗
  The Honorable Joel H. Slomsky, District Judge for the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
              Attorney for Defendant-Appellant


       Mark E. Coyne, Esq.
       Steven G. Sanders, Esq. [Argued]
       Office of United States Attorney
       970 Broad Street
       Newark, NJ 07102-2535

              Attorneys for Appellee

                                     ______________

                               OPINION OF THE COURT
                                   ______________


SLOMSKY, District Judge.

       Bartolo Perez appeals from a judgment of conviction for illegal reentry, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Perez contends that the District Court erred in

denying his motion to dismiss the indictment challenging the constitutionality of the

underlying removal proceedings. Perez also challenges the District Court’s decision

granting the Government’s motion in limine to exclude evidence of his family and work

life in the United States. We will affirm the judgment.

                                       I. Background

       Because we write for the parties, who are well acquainted with the case, we recite

only the essential facts and procedural history.

                                             A.

       Perez is a native and citizen of the Dominican Republic. He came to the United

States as a lawful resident on August 1, 1981. In 1985, Perez traveled to the Dominican



                                              2
Republic to visit his mother, who had suffered a heart attack. When he returned on June

11, 1985, Perez was arrested at John F. Kennedy International Airport for importing a

“substantial quantity” of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and

960(b)(2). On August 30, 1985, Perez pled guilty to these charges in the United States

District Court for the Eastern District of New York. He was sentenced to thirty months

imprisonment, of which he served twenty-two months.

       Because Perez’s conviction qualified as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B), the Immigration and Naturalization Service (“INS”) issued a show

cause order charging Perez with being deportable under § 241 of the Immigration and

Naturalization Act (“INA”). Deportation proceedings commenced on April 22, 1987, and

on November 18, 1987, a hearing was held before an Immigration Judge (“IJ”). At the

hearing, Perez appeared with his attorney Claude Kleefield (“Kleefield”) and conceded

that he was deportable, but he sought the opportunity to apply for a discretionary waiver

of deportation under § 212(c) of the INA, 8 U.S.C. § 1182(c) (“§ 212(c) waiver”). 1

Kleefield thereafter acknowledged that his client was ineligible for relief because he did

not meet the seven year residency requirement. On December 4, 1987, the IJ denied the

§ 212(c) waiver application and ordered Perez deported.




1
   In 1987, § 212(c) provided that “[a]liens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and not under an order of deportation, and
who are returning to a lawful unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General.” 8 U.S.C. § 1182(c), repealed by
Illegal Immigrant Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, §
304(b), 110 Stat. 3009-597 (1996).

                                             3
       On December 17, 1987, Kleefield filed a notice of appeal to the Board of

Immigration Appeals (“BIA”). The basis for the appeal was that Perez had since legally

married a lawful permanent resident. The notice of appeal indicated that Kleefield would

not be filing a separate written brief or statement. Almost three years later, on July 9,

1990, the Executive Office of Immigration Review sent to Kleefield a copy of the

transcript of the “testimony of record,” and informed him that he would have thirty

additional days to file a written brief in support of the appeal. Kleefield did not do so.

       On October 15, 1990, the BIA affirmed the IJ’s decision that Perez was ineligible

for relief and dismissed his appeal. The BIA noted that, “although it has now been more

than 7 years since [Perez’s] admission as a lawful permanent resident, [Perez] has not

filed a motion to remand. Neither has [Perez] filed an application for section 212(c)

relief or any other supporting materials to establish prima facie eligibility for such relief.”

       For reasons unknown, the INS did not issue a deportation order until February 20,

1997. Perez did not appear for deportation, but was thereafter deported to the Dominican

Republic on April 4, 2007, after being detained for a traffic infraction near Boston,

Massachusetts. During this detention, the outstanding deportation order was discovered.

Perez did not move the BIA to reopen his deportation proceeding or seek habeas relief

during the five months between his apprehension and deportation. During the seventeen

years between the BIA’s affirmance of his removal order in 1990 and his actual

deportation in 2007, Perez was steadily employed and had no arrests.

       On January 24, 2009, Perez attempted to reenter the United States through Newark

Liberty International Airport on a flight from the Dominican Republic. He used an


                                               4
assumed name and a forged passport, but was detained after Customs and Border

Protection performed a routine fingerprint check and discovered that he had been

previously deported. On May 11, 2009, a grand jury returned the indictment charging

him with attempted unlawful reentry into the United States in violation of 8 U.S.C.

§ 1326(a) and (b)(2). 2 Perez entered a plea of not guilty.

                                               B.

         On February 21, 2010, court-appointed counsel filed a motion to dismiss the

charges lodged against Perez, challenging the constitutionality of the underlying removal


2
    The statute reads, in relevant part:

          (a) In general.
          Subject to subsection (b) of this section, any alien who−

             (1) has been denied admission, excluded, deported, or removed or has
             departed the United States while an order of exclusion, deportation, or
             removal is outstanding, and thereafter

            (2) enters, attempts to enter, or is at any time found in, the United
          States . . .

          Shall be fined under Title 18, or imprisoned not more than 2 years, or
          both.

          (b) Criminal penalties for reentry of certain removed aliens.
          Notwithstanding subsection (a) of this section, in the case of any alien
          described in such subsection−

                                           *        *    *

             (2) whose removal was subsequent to a conviction for commission of
             an aggravated felony, such alien shall be fined under such title,
             imprisoned not more than 20 years, or both[.]

8 U.S.C. § 1326(a), (b)(2).

                                               5
proceedings. Perez raised a claim of ineffective assistance of counsel based on

Kleefield’s failure to properly refile Perez’s § 212(c) waiver application once he had met

the residency requirement. The District Court held that Perez could not satisfy the

statutory elements required for an ineffective assistance of counsel claim under 8 U.S.C.

§ 1326(d) because he “failed to establish that he was prejudiced by counsel’s failure to

refile the [§ 212(c)] application.” The District Court concluded that Perez could not

successfully challenge the underlying removal proceedings and denied the motion to

dismiss the indictment.

       Thereafter, on December 14, 2010, the Government filed a motion in limine to

exclude evidence about Perez’s family and work life in the seventeen years between the

BIA’s affirmance and his actual deportation. Following a hearing on the motion, the

District Court ruled “that any attempt to introduce evidence relating to [Perez’s] status in

this country pending his deportation, his forced deportation or his family life, a thing of

that nature or his work effort or efforts, as well as the correctness of the deportation

order, are forbidden.”

       After the District Court’s evidentiary ruling, Perez waived his right to a trial by

jury and proceeded to a bench trial on stipulated facts. Perez was found guilty of

unlawful reentry in violation of 8 U.S.C. § 1326(a) and (b)(2), and sentenced to thirty

months imprisonment. He filed a notice of appeal and returned to the Dominican

Republic voluntarily.

                           II. Jurisdiction and Scope of Review




                                              6
       The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1291. We review

the District Court’s determination that Perez could not collaterally attack his deportation

de novo. Richardson v. United States, 558 F.3d 216, 219 n.3 (3d Cir. 2009). We review

the District Court’s factual findings for clear error and we have plenary review over its

conclusions of law. Id. In regard to the evidentiary ruling, we review the District Court’s

decision for abuse of discretion. United States v. Ford, 481 F.3d 215, 217 (3d Cir. 2007).

                                        III. Analysis

                   A. Collateral Attack on Underlying Removal Order

       At the heart of Perez’s appeal is his claim that Kleefield’s failure to refile a

§ 212(c) waiver application deprived him of effective assistance of counsel in the

underlying removal proceedings. Perez contends that he is permitted to collaterally

challenge his removal because, first, neither the BIA nor the IJ had the opportunity to

consider the merits of his § 212(c) waiver application due to counsel’s failure to refile for

relief after Perez had achieved the requisite seven years of residency. (Appellant’s Br. at

14.) Second, Perez maintains that, if his § 212(c) waiver application had been properly

refiled, there is a “reasonable likelihood” that relief would have been granted.

(Appellant’s Br. at 14-15.)

       Due process provides an alien subject to prosecution for illegal reentry under

8 U.S.C. § 1326 with the opportunity to challenge the underlying removal order under

certain circumstances. United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006).

An alien must meet three distinct requirements before he can successfully attack a

removal order or proceeding pursuant to 8 U.S.C. § 1326(d). Id. An alien must prove


                                               7
that: (1) he exhausted administrative remedies to seek relief against the order; (2) the

deportation proceedings at which the order was issued improperly denied the alien of the

opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

Richardson v. United States, 558 F.3d 216, 223 (3d Cir. 2009). 3 All three of these

requirements must be met in order to mount a successful challenge. United States v.

Torres, 383 F.3d 92, 99 (3d Cir. 2004).

       Whether Perez was improperly denied the opportunity for judicial review, or

whether the underlying removal proceedings were fundamentally unfair, turn on whether

Perez was denied effective assistance of counsel. 4 Moreover, in determining whether

removal proceedings were “fundamentally unfair,” we ask “whether the alien was denied

3
 Section 1326(d) codified these requirements as they were formulated by the Supreme
Court in United States v. Mendoza-Lopez, 481 U.S. 828 (1987). The statute provides:

        (d) Limitation on collateral attack on underlying deportation order.

        In a criminal proceeding under this section, an alien may not challenge
        the validity of the deportation order described in subsection (a)(1) or
        subsection (b) of this section 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).
4
  The government did not challenge the exhaustion requirement in the District Court;
thus, it cannot do so here on appeal. Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d Cir.
2002).

                                             8
due process.” Torres, 383 F.3d at 103. Ineffective assistance of counsel can result in a

denial of due process if counsel’s performance was so deficient so as to prevent an alien

from reasonably presenting his case. Rranci v. Att’y Gen. of the U.S., 540 F.3d 165, 175

(3d Cir. 2008). Perez’s contention that the removal proceedings denied him the

opportunity for judicial review or were fundamentally unfair is based on Kleefield’s

failure to refile an application for relief after Perez had satisfied the seven year residency

eligibility requirement.

                     i.      Ineffective Assistance of Counsel

       Although the Sixth Amendment’s right to counsel does not apply in administrative

removal proceedings, “[a] claim of ineffective assistance of counsel in removal

proceedings is cognizable under the Fifth Amendment-i.e., as a violation of that

amendment’s guarantee of due process.” Fadiga v. Att’y Gen. of the U.S., 488 F.3d 142,

155 (3d Cir. 2007). In the immigration context, we have held that an alien must satisfy a

two part test in order to establish a denial of due process based on an allegation of

ineffective assistance of counsel: “(1) whether competent counsel would have acted

otherwise, and, if yes, (2) whether the alien was prejudiced by counsel’s poor

performance.” Rranci, 540 F.3d at 175. Because Perez cannot establish that he was

prejudiced by counsel’s poor performance, we need not discuss the question of whether

competent counsel would have acted otherwise in refiling a § 212(c) waiver application.

       In order for an alien to demonstrate that he suffered prejudice due to his counsel’s

error, he must show that there was a “reasonable likelihood that the result would have

been different if the error[s] . . . had not occurred.” Charleswell, 456 F.3d at 362; accord


                                               9
Rranci, 540 F.3d at 175-76; Fadiga, 488 F.3d at 159. Here, Perez must establish that,

had Kleefield properly refiled his § 212(c) waiver application after Perez achieved seven

years of residence, there is a reasonable likelihood that his application for relief would

have been granted. See Tipu v. INS, 20 F.3d 580, 583 (3d Cir. 1994) (“The applicant

bears the burden of demonstrating that he merits § 212(c) relief from deportation.”). We

determine the “reasonable likelihood” of § 212(c) relief under the following balancing

test:

            Favorable considerations have been found to include such factors
            as family ties within the United States, residence of long duration
            in this country (especially when the inception of residence occurred
            at a young age), evidence of hardship to the respondent and her
            family if deportation occurs, service in this country’s armed forces,
            a history of employment, the existence of property or business ties,
            evidence of value and service to the community, proof of genuine
            rehabilitation if a criminal record exists, and other evidence
            attesting to a respondent’s good character.

            Among the factors deemed adverse to an alien are the nature of the
            underlying circumstances of the exclusion ground at issue, the
            presence of additional significant violations of this country’s
            immigration laws, the existence of a criminal record, and, if so, its
            nature, recency, and seriousness, and the presence of other
            evidence indicative of a respondent’s bad character or
            undesirability as a permanent resident of this country.


Id. at 583. It is well established that “just one of the adverse considerations may be

determinative of whether § 212(c) relief is granted.” Id.; see also Matter of Buscemi,

19 I. & N. Dec. 628, 633 (BIA 1988).

        Here, we evaluate the § 212(c) factors as they existed at the time Perez’s appeal

was denied by the BIA in 1990. Perez entered the United States when he was twenty-five



                                             10
years old, had been here for nine years, and had a wife and two children in the country.

(Appellant’s Br. at 22; App. I at 2, 8.) Aside from his period of incarceration, he had

steady employment. (Appellant’s Br. at 22-23; App. I at 9; App. II at 73.) Additionally,

as part of the proof of his rehabilitation, Perez submitted a letter from the U.S. Probation

Office to the IJ which stated that Perez had “made a concerted effort to become a

productive member of society, and it is our opinion that he should be given every

consideration during his pending deportation proceedings.” (App. II at 73.)

       Despite these favorable factors, we have made it clear that “an alien who has been

convicted of a serious drug offense will usually be required to make a showing of unusual

or outstanding equities in their favor in order to be considered for § 212(c) relief.” Tipu,

20 F.3d at 583. In light of this statement, Perez’s conviction for importing a “substantial

quantity” of cocaine into the United States must be given significant weight, despite the

fact that he had no prior criminal record. (Supp. App. at 60.) Moreover, there is no

evidence that Perez’s family would have suffered hardship in the event of his deportation.

       We find that Perez’s crime of importing cocaine is a serious negative factor that

would likely have weighed heavily against his being awarded discretionary relief. See

Matter of Duarte, 18 I. & N. Dec. 329, 333 (BIA 1982) (stating that crime involving

trafficking in a large quantity of marijuana is an “extremely serious negative factor”

militating against a grant of relief). Moreover, the presence of his wife and two children

in the United States is not itself enough to show extreme hardship, and no further

evidence was submitted in support of this factor. While we are sympathetic to the fact

that Perez maintained a family and work life in the United States, they do not amount to


                                             11
the “unusual or outstanding equities” required to overcome a conviction for such a

serious drug offense. As such, Perez has failed to meet his burden of establishing that,

had Kleefield properly refiled his § 212(c) waiver application, there was a “reasonable

likelihood” that relief would have been granted.

       In light of our findings that Perez did not demonstrate a “reasonable likelihood”

that relief would have been granted, it follows that he cannot establish that he was denied

the opportunity for judicial review or that the underlying deportation proceedings were

fundamentally unfair. Consequently, Perez has not met his burden under 8 U.S.C.

§ 1326(d).

                           B. District Court’s Evidentiary Ruling

       Perez also challenges as an abuse of discretion the District Court’s decision to

grant the Government’s motion in limine to exclude evidence of his family and work life

in the United States. He contends that the District Court’s ruling was so broad that it

effectively prevented him from presenting a defense or testifying on his own behalf.

Perez further argues that the excluded evidence supports a justification defense for a

violation of 8 U.S.C. § 1326. (Appellant’s Br. at 25-29.)

       While the Constitution mandates that a criminal defendant is entitled to a

meaningful opportunity to present a complete defense, “well-established rules of

evidence permit trial judges to exclude evidence if its probative value is outweighed by

certain other factors such as unfair prejudice, confusion of the issues, or potential to

mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006); see Fed. R.

Evid. 403. We have held that the trial judge is “in the best position to assess the extent of


                                              12
the prejudice caused a party,” and review a district court’s balancing analysis for an

abuse of discretion, according great deference to that court’s ultimate decision. United

States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000).

       The Federal Rules of Evidence provide that evidence is relevant when it has a

“tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” Fed. R.

Evid. 401. Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. The District Court

held that evidence of Perez’s life in the United States between 1990 and 2007 was not

relevant to the illegal reentry charge and created a risk of jury nullification. (App. I at

25.) We cannot conclude that the District Court abused its discretion in so holding.

       The elements of an unlawful reentry charge under 8 U.S.C. § 1326 are as follows:

(1) the defendant is an alien who was previously deported; (2) the defendant thereafter

voluntarily attempted to reenter the United States; and (3) the defendant had not received

the consent of the Attorney General to return or apply for readmission. First, it is unclear

how evidence of Perez’s family and work life in the United States is relevant to the

elements of this offense. However, even if Perez could establish relevance, we agree

with the District Court that this evidence poses an improper risk of jury nullification.

                                       III. Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                              13
