                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2006

USA v. Charleswell
Precedential or Non-Precedential: Precedential

Docket No. 04-4513




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                                     PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                No. 04-4513
                ___________

      UNITED STATES OF AMERICA

                      v.

           RIEL CHARLESWELL,

                      Appellant

                ___________

  APPEAL FROM THE DISTRICT COURT
           OF THE VIRGIN ISLANDS
             (D.C. No. 02-cr-00158)
District Judge: The Honorable Thomas K. Moore
                  ___________

       ARGUED DECEMBER 6, 2005

     BEFORE: SCIRICA, Chief Judge,
     McKee and Nygaard, Circuit Judges.

            (Filed August 1, 2006)
                 ___________
Stephen A. Brusch, Esq. (Argued)
International Plaza, Suite 2G
P. O. Box 988
Charlotte Amalie, St. Thomas USVI 00804
       Counsel for Appellant


Kim L. Chisholm, Esq. (Argued)
Office of the United States Attorney
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas, USVI 00802-6924
       Counsel for Appellee

                        ___________

                 OPINION OF THE COURT
                      ___________


NYGAARD, Circuit Judge.

      Riel Charleswell appeals from his conviction for re-

entering the United States without permission after having been

previously deported, in violation of 8 U.S.C. §§ 1326(a) and

(b)(2). The District Court rejected Charleswell’s collateral

challenge to the validity of both his original 1991 Deportation



                              2
order and his 2001 Reinstatement order, concluding that

Charleswell was not denied the opportunity for judicial review

in both instances. We hold that Charleswell was denied the

opportunity for judicial review of the 2001 Reinstatement order

and that the reinstatement proceeding, if prejudicial, was

fundamentally    unfair.    Accordingly,    we    will   vacate

Charleswell’s conviction and remand to the District Court for

findings on whether Charleswell can demonstrate prejudice.

                       I. Background

       Charleswell was born in the British Virgin Islands but

became a permanent resident of the United States in 1967, when

he was three years old. In 1987, Charleswell was convicted in

a Maryland state court for possession with intent to distribute

marijuana and, based on that conviction, the Immigration and

Naturalization Service commenced deportation proceedings

against him (“1991 Deportation”). At his deportation hearing,

                              3
Charleswell conceded that he was deportable but sought waiver

pursuant to section 212(c) of the Immigration and Naturalization

Act (“INA”), 8 U.S.C. § 1182(c) (1995) (repealed by Illegal

Immigrant Reform and Immigrant Responsibility Act (IIRIRA),

Pub. L. No. 104-208, Div. C, § 304(b), 1996 U.S.C.C.A.N. (110

Stat.) 3009-597). Section 212(c) permits the Attorney General

discretion to waive deportation of a removable alien who had

established a continuous, lawful domicile in the United States

for seven years. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct.

2271, 150 L. Ed. 2d 347 (2001).            It is undisputed that

Charleswell had established a continuous, lawful domicile in the

United States for seven years. In distressing fashion, however,

the Immigration Judge denied Charleswell’s request for a

section 212(c) waiver because he believed that the United States

Virgin Islands, specifically St. Thomas, was not a territory of the

United States.    The IJ’s mistaken belief led him to find

                                4
Charleswell deportable to the British Virgin Islands. Despite the

adverse finding, Charleswell did not appeal this decision and, on

July 9, 1992, Charleswell was deported to the British Virgin

Islands.

       In 1997, Charleswell was again found and arrested in

Maryland. He was charged with re-entering the United States

after deportation and being a felon in possession of a firearm in

violation of 8 U.S.C. § 1326. Charleswell moved to dismiss the

indictment on the ground that his previous deportation was

fundamentally unfair. The District Court dismissed this motion

and, after a conditional plea of guilty, sentenced Charleswell to

49 months in prison. The Court of Appeals for the Fourth

Circuit affirmed the District Court’s judgment. See United

States v. Charleswell, 173 F.3d 425 (4th Cir. 1999).         On

November 28, 2000, the INS issued a Notice of Intent to

Reinstate Charleswell’s 1991 Deportation. Pursuant to the

                               5
Notice of Intent, Charleswell was deported again in 2001 (“2001

Reinstatement”).

       In 2002, Charleswell was again found in the United

States, this time in St. Thomas, and he was charged in the

District Court for the United States Virgin Islands with re-entry

after deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2).1

1.
 § 1326(a) provides, in relevant part:
      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[] . . . with respect to an
             alien previously denied admission and removed,
             unless such alien shall establish that he was not
             required to obtain such advance consent under the
             chapter or any prior Act, shall be fined under Title
             18, or imprisoned not more than 2 years, or both.
§ 1326(b)(2) provides:
      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
                                                    (continued...)

                                6
Charleswell filed a Motion to Dismiss, arguing that the 1991

Deportation and the 2001 Reinstatement, upon which the

indictment was based, were fundamentally unfair and invalid.

The District Court denied this motion, finding that Charleswell

was not denied judicial review of the 1991 Deportation order or

the 2001 Reinstatement. The government moved to preclude

Charleswell from challenging the lawfulness of his prior

deportations at trial, which the District Court granted and the

matter proceeded to trial. On January 26, 2004, a jury returned

a guilty verdict and the District Court sentenced Charleswell to

57 months in prison. This timely appeal follows.

                              II.




1.
  (...continued)
         commission of an aggravated felony, such alien shall be
         fined under such Title, imprisoned not more than 20
         years, or both[.]

                               7
       We have jurisdiction over the appeal from the final

judgment of the District Court pursuant to 28 U.S.C. § 1291.

We review the District Court’s determination precluding

Charleswell from collaterally attacking his deportation de novo.

United States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004). We also

review the District Court’s factual findings for clear error and

we have plenary review over its decisions of law. United States

v. Perez, 280 F.3d 318, 336 (3d Cir. 2002), cert. denied, 537

U.S. 859, 123 S.Ct. 231, 153 L.Ed.2d 98 (2002).

                        III. Discussion

       Fundamental precepts of due process provide an alien

subject to illegal re-entry prosecution under 8 U.S.C. § 1326

with the opportunity to challenge the underlying removal order

under certain circumstances. See Torres, 383 F.3d at 98.

Interpreting the Supreme Court’s pronouncement in United

States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.

                               8
Ed. 2d 772 (1987), we have formulated three distinct but

compulsory requirements that must be met by any alien wishing

to collaterally attack a previous deportation order or proceeding.

The alien must establish that (1) he exhausted any administrative

remedies that may have been available; (2) the hearing

effectively eliminated the right of the alien to obtain judicial

review from that proceeding; and (3) the prior hearing was

“fundamentally unfair”. Torres, 383 F.3d at 98-99; see also

United States v. Luna, 436 F.3d 312 (1st Cir. 2006); United

States v. Lara-Aceves, 183 F.3d 1007, 1010 (9th Cir. 1999);

United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir.

1998); United States v. Paredes-Batista, 140 F.3d 367, 378 (2d

Cir.), cert. denied, 525 U.S. 859, 119 S.Ct. 143, 142 L.Ed.2d

116 (1998); United States v. Perez-Ponce, 62 F.3d 1120, 1122

(8th Cir. 1995); United States v. Espinoza-Farlo, 34 F.3d 469,

471 (7th Cir. 1994). Congress recognized the weight of the

                                9
Court’s formulation in Mendoza-Lopez and, in 1996, enacted 8

U.S.C. § 1326(d) which codified these requirements.2

          A. Jurisdiction over the 1991 Deportation

        The bulk of Charleswell’s appeal hinges on his effort to

collaterally attack both the 1991 Deportation and the 2001

Reinstatement.     Before turning to the substance of these

collateral challenges, however, we must first address some

confusion over which order constitutes the predicate element of




2.
  § 1326(d) states:
       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.

                               10
Charleswell’s § 1326 conviction.3 The government argues that

we lack jurisdiction to review the 1991 Deportation, signaling

its belief that Charleswell’s conviction is premised solely on the

2001 Reinstatement and, consequently, that Charleswell is

precluded from a collateral challenge to the original 1991

Deportation. Reading the indictment, it might seem that the

government is correct, as it invokes only the 2001 Reinstatement

as the underlying “deportation order” required for a § 1326

charge. However, Mendoza-Lopez did not constrict collateral

challenges in the way that the government advocates and we do

not agree that, for purposes of a collateral challenge, we are


3.
 In most cases involving a collateral challenge to an illegal re-
entry charge the underlying predicate element is the actual
deportation proceeding. See e.g., Mendoza-Lopez, 481 U.S. at
828; Torres, 383 F.3d at 92. Challenges to an illegal re-entry
charge stemming from a reinstatement order represent a
relatively new iteration in the Mendoza-Lopez collateral
challenge context and the exact contours of these second wave
challenges have yet to be fully defined.

                               11
limited to reviewing only the 2001 Reinstatement. Rather,

under Mendoza-Lopez, an alien may mount, and we must hear,

a challenge to the validity of both a reinstatement order and the

original deportation or removal order. See generally United

States v. Luna, 436 F.3d 312 (1st Cir. 2006) (discussing, but not

deciding, which of two deportation orders could act as a basis

for an illegal re-entry indictment); Ramirez-Molina v. Ziglar,

436 F.3d 508 (5th Cir. 2006) (concluding that on direct appeal

from a reinstatement order the court retained the power to hear

constitutional and legal challenges to the underlying deportation

order). To hold otherwise would allow the government to avoid

the consequences of a fundamentally unfair underlying

deportation or removal proceeding simply by deleting it from

the indictment, in contravention of the teaching in Mendoza-

Lopez that “where a determination made in an administrative

proceeding is to play a critical role in the subsequent imposition

                               12
of a criminal sanction, there must be some meaningful review of

the administrative proceeding.” Mendoza-Lopez, 482 U.S. at

837-38 (first emphasis added). Reinstatement orders do not

exist independent and separate from their prior orders of

removal but are instead explicitly premised on the prior order.

See 8 U.S.C. § 1231(a)(5); Ramirez-Molina, 436 F.3d at 514.

Consequently, the prior order remains a critical element of the

reinstatement and, more importantly, of the illegal re-entry

charge where that charge is premised on the reinstatement.

Thus, insofar as the underlying element of the § 1326

proceeding is the reinstatement order, an alien may attempt to

collaterally challenge both the original deportation order and

the reinstatement order. And, where either proceeding – the

reinstatement or the original – is so procedurally flawed that it

“effectively eliminated the right of the alien to obtain judicial




                               13
review,” we may invalidate the criminal charges stemming

therefrom.4 See Mendoza-Lopez, at 839.

     B. Sufficiency of the Collateral Challenge to the 1991
                          Deportation

        Having determined that we may review Charleswell’s

attempt to collaterally challenge the 1991 Deportation order, we

next address whether he is able to meet the Mendoza-Lopez

requirements. We conclude he cannot. Charleswell is unable to

4.
 Any claim that we are statutorily prohibited from entertaining
a collateral challenge to the original deportation order is equally
unavailing. But cf. United States v. Avila-Macias, 328 F.3d 108,
115 (3d Cir. 2003) (concluding on direct appeal that we did not
have jurisdiction over a collateral challenge to the initial
deportation order where that order was reinstated pursuant to
section 305(a)(5) [8 U.S.C. § 1231(a)(5)]). Any conceivable
statutory bar (e.g., § 1231(a)(5)) focuses on the actual
reinstatement and any direct appeal from the reinstatement order
itself. See id.; Ramirez-Molina, 436 F.3d at 514. We can find no
support for the contention that a statute, like § 1231(a)(5),
withdrawing jurisdiction over the original deportation order
reaches collateral challenges to a criminal charge for illegal re-
entry. Serious constitutional concerns would arise if this were
the case. See Mendoza-Lopez, 481 U.S. at 837-38; Torres, 383
F.3d at 100.

                                14
demonstrate that he was deprived of the opportunity for judicial

review after the IJ’s plainly adverse order deporting him. The

record reveals that, despite the “monumental error” made by the

IJ during the hearing, Charleswell had the opportunity to appeal

the deportation order.5 Charleswell seeks to excuse his decision

not to appeal by arguing that “[t]he [Immigration J]udge then

orally stated that he is deporting Charleswell to the [United

States] Virgin Islands. Having lived in St. Thomas for most of

his life, having had family in St. Thomas, Charleswell saw no

reason to appeal.” We are unpersuaded by this claim. A review

of the IJ’s decision reveals that Charleswell designated the

British Virgin Islands as the country for deportation, indicating

that he was aware of the effect of the deportation order.


5.
 As noted earlier, the IJ, incredibly, believed that the United
States Virgin Islands were not a territory of the United States
and this obviously incorrect supposition led him, in part, to
order Charleswell deported.

                               15
Moreover, the IJ’s deportation order states: “IT IS FURTHER

ORDERED, that the Respondent [Charleswell] be deported

from the United States to the British Virgin Islands under the

charge and the order to show cause.” App. at 56 (emphasis

added).    The IJ’s decision is, therefore, unambiguous:

Charleswell was ordered to be deported to the British Virgin

Islands. There is no indication whatsoever that Charleswell was

effectively precluded from appealing this clearly adverse

decision. He was told he had the right to appeal and does not

claim that he failed to understand that right. Furthermore, as the

Court of Appeals for the Fourth Circuit noted when it handled

Charleswell’s prior appeal, “the immigration judge simply made

a substantive error of law–albeit an egregious one–of precisely

the sort that could have been corrected on appeal.” App. at 46.

Accordingly, because Charleswell is unable to demonstrate he

was effectively denied the right to obtain judicial review from

                               16
1991 Deportation proceeding, he fails to satisfy the Mendoza-

Lopez requirements and may not collaterally challenge the 1991

Deportation order.

        C. Jurisdiction over the 2001 Reinstatement

       We must next address the government’s contention that

we lack jurisdiction to review Charleswell’s effort to collaterally

challenge the 2001 Reinstatement order.         The government

points to Immigration and Nationality Act (“INA”) § 242(a)-(b),

8 U.S.C. § 1252(a)-(b) (2002) as the authority to which we

should look in determining whether we possess jurisdiction over

the 2001 Reinstatement order. Section 242(a)-(b) of the INA

grants the courts of appeals subject matter jurisdiction over

“final orders of removal.” And although “a reinstatement order

is not literally an “order of removal” because it merely reinstates

a previously issued order of removal or deportation[]” we

consider it a final order of the INS and it therefore falls within

                                17
section 242’s jurisdictional grant. Ojeda-Terrazas, 290 F.3d

292, 295 (5th Cir. 2002) (“A fair interpretation of § 242 grants

this court the authority to review the lawfulness of the

reinstatement order.”). Thus, according to the government,

because the 2001 Reinstatement was effectuated in Maryland,

the Court of Appeals for the Fourth Circuit is the only court that

has jurisdiction over the 2001 Reinstatement order. Again, we

disagree.

       In Ojeda-Torrazas, the Court of Appeals for the Fifth

Circuit addressed the jurisdictional grant in the context of a

direct appeal from the alien’s reinstatement order. There, the

INS apprehended the alien after he had already been deported

and served him with a Notice of Intent to reinstate the original

deportation order. From that Notice of Intent, the alien filed a

petition for review directly to the Court of Appeals for the Fifth

Circuit, the proper court of appeal in which to contest the

                               18
lawfulness of his reinstatement order.        We agree with the

government that if Charleswell had directly appealed the 2001

Reinstatement order, section 242(a)-(b) would control and we

would not possess subject matter jurisdiction because the

reinstatement order was issued in Maryland, outside of our

jurisdictional control.

       Here, however, Charleswell is not directly appealing the

2001 Reinstatement order, but is instead attempting to

collaterally attack it. Because this is not a direct appeal, section

242(a)-(b) is inapplicable.       Where, as here, a criminal

prosecution is based upon an underlying deportation order, an

alien may attempt to collaterally challenge that order in the court

in which the prosecution takes place. Torres, 383 F.3d at 97

(assuming jurisdiction to review the sufficiency of a collateral

challenge to a removal order constituting an element of a

conviction for illegal reentry.”); see Mendoza-Lopez, 481 U.S.

                                19
at 839 (“[A] collateral challenge to the use of a deportation

proceeding as an element of a criminal offense must be

permitted where the deportation proceeding effectively

eliminates the right of the alien to obtain judicial review.”).

Consequently, we have subject matter jurisdiction to assess the

sufficiency of Charleswell’s attempted collateral attack because

we have jurisdiction over the District Court for the United States

Virgin Islands. See 28 U.S.C. § 1291.

   D. Sufficiency of the Collateral Challenge to the 2001
                       Reinstatement


       Turning to the sufficiency of Charleswell’s collateral

challenge, Charleswell specifically argues that “[t]he 2001

reinstatement of the deportation order also violated [his] rights

because he was never informed of his right to appeal to a federal

court of appeals, and the ‘reinstatement statute’ ought not be

applied retroactively to [his] conduct.” As noted earlier, the

                               20
District Court analyzed only the first two Mendoza-Lopez

requirements, concluding that, although Charleswell did satisfy

the first requirement of exhaustion of administrative remedies

(“First . . . there were no practicable administrative remedies

that Charleswell could have exhausted”), he could not establish

that he was denied judicial review of the reinstatement order.6

As set out below, we conclude that Charleswell was denied the

opportunity of judicial review of the reinstatement order and,

additionally, that the proceeding, if prejudicial, was

fundamentally unfair.

       1. Opportunity for Judicial Review

       In concluding that Charleswell could not meet the second

requirement, the District Court noted that 8 U.S.C. § 1252(a)(1)

conferred appellate jurisdiction over reinstatement orders to

6.
 The government concedes, and we agree, that the District Court
was correct in concluding that Charleswell had met the first
requirement. See 8 U.S.C. § 1231(a)(5).

                              21
federal courts of appeal and that “Charleswell has provided no

evidence to this Court that he was denied access to judicial

review, either through a direct appeal from the reinstatement

order or a petition for habeas relief.” Therefore, according to

the District Court, because judicial review was available in

some form and Charleswell could offer no reason why he did

not appeal, he could not meet the second prong.

       It is certainly true that there is a statute conferring

appellate jurisdiction on the courts of appeal over reinstatement

orders and it is also correct that Charleswell did not directly

appeal the reinstatement order. However, it is not the case that

Charleswell failed to offer any evidence that he was denied

access to judicial review. Charleswell contends that his failure

to appeal stems from the fact that he “appeared”7 pro se at the

7.
 As discussed below, the reinstatement proceeding is less a
proceeding and more a summary procedure, requiring the alien
                                              (continued...)

                               22
time of the reinstatement order and that he was never informed

he could appeal the reinstatement order to the federal courts of

appeal. (“The government summarily deported Charleswell

from the United States with . . . no notification of the right of

judicial review . . . .”). This is important because while what

constitutes an “effective denial of judicial review” has not been

definitively determined,8 in Mendoza-Lopez, the Court held that

an IJ’s failure to adequately explain to the alien that he had the

7.
 (...continued)
to literally appear but beyond that denying him certain
opportunities which are usually associated with traditional legal
proceedings.
8.
 In Torres, we left the question open, stating:
       At any rate, we need not conclusively resolve what
       suffices to constitute judicial review under section
       1326(d). Torres’s collateral challenge suffers from a
       more obvious defect - he cannot establish that his
       removal order was “fundamentally unfair” as required by
       section 1326(d)(3). We will therefore assume, arguendo,
       that Torres was denied a meaningful opportunity for
       judicial review.
Torres, 383 F.3d at 102-03.

                               23
opportunity to appeal, which then resulted in an uninformed

waiver of that right, “was an error that deprived the individuals

in that case of their opportunity for judicial review.” Luna, 436

F.3d at 319. In other words, in Mendoza-Lopez, the Court ruled

that a collateral attack “could be made by aliens who had

effectively been denied direct appeal because they were not

given proper notice of the right to appeal.” United States v.

Fares, 978 F.2d 52, 56 (2d Cir. 1992).               According to

Charleswell, the failure to inform him of his right to take direct

appeal of the reinstatement order denied him the opportunity for

meaningful judicial review.

       The right to “proper notice” and the somewhat more

capacious right to notice, generally, of the availability of judicial

review, however, are not necessarily coextensive in their

constitutional    or   Mendoza-Lopez        collateral    challenge

implications. For instance, the Court of Appeals for the Second

                                 24
Circuit recently declined to find that an alien has a right to

notice of the availability of judicial review over a deportation

hearing. United States v. Lopez, __ F.3d __, 2006 WL 853261

(2d Cir. 2006). There, an IJ informed the alien of his right to

BIA review but neglected to inform him of the availability of

habeas review. Id. at *4. The court rejected his claim that this

lack of notice established that he was denied the opportunity for

meaningful review because “the receipt of a final order of

deportation ordinarily would put an alien on notice to look for

remedies for that order” and “where judicial remedies are

readily available in case law and statutes, due process is not

offended where no notice of those remedies is provided.” Id.

Under this reading, Mendoza-Lopez will not support a collateral

challenge where the only claimed defect is the failure to inform

the alien of his right to appeal. Id. (“Nothing in Mendoza-Lopez

. . . requires a right to notice about the availability of judicial

                                25
review.”).9 We need not now decide whether the mere lack of

notice concerning the right to take a direct appeal from an

administrative order can ever be considered an effective denial

of meaningful judicial review because we consider the defect in

this case to be considerably more significant.




9.
 We express no opinion on the sufficiency of this logic except
to note that this appears to us to be an open question both in how
we construe Mendoza-Lopez and in how we read the procedural
protections that are necessary in the context of removal
proceedings. See Martinez-de Bojorquez v. Ashcroft, 365 F.3d
800, 804 (9th Cir. 2004) (taking as settled law that due process
violations occur “when the BIA fail[s] to inform aliens
appealing adverse decisions . . . about certain requirements they
must meet when filing their appeal”); see also United States v.
Copeland, 376 F.3d 61, 67 (2d Cir. 2004) (“An alien is denied
[the opportunity for judicial review], for example, if the IJ does
not adequately inform him of his right to a direct appeal from a
deportation order.”) (citing Mendoza-Lopez, 481 U.S. at 840).
Additionally, we note that United States v. Lopez addresses the
right of notice to appeal in the habeas context as opposed to the
right of notice to take a direct appeal. See Torres, 383 F.3d at
100-03.


                               26
       The reinstatement procedures, as established by INA §

241(a)(5), 8 U.S.C. § 1231(a)(5), and 8 C.F.R. § 241.8, are quite

summary.10 No hearing is associated with the reinstatement

order and the alien is not entitled to appear before an IJ. Instead,

the alien is served with a single piece of paper titled “Notice of

Intent/Decision to Reinstate Prior Order.” An immigration

officer is required to ascertain three facts: (1) whether the alien

10.
  Although these procedures have generally been upheld against
due process challenges, they continue to cause a significant
amount of consternation. See Salazar v. Ashcroft, 38 Fed. Appx.
812, 814 (3d Cir. 2002) (“[I]t is an open question whether the
INS regulation providing for reinstatement of a prior removal
order without a hearing could violate due process rights.”)
(comparing Castro-Cortez, 236 F.3d at 1040, with Alvarenga
Villabolos v. Ashcroft, 271 F.3d 1169, 1174 (9th Cir. 2001));
Lattab v. Ashcroft, 384 F.3d 8, 21 n. 6 (1st Cir. 2004) (“The
summary reinstatement process offers virtually no procedural
protections. The regulation grants aliens to whom it applies
nothing more than a chance to make a statement opposing
reinstatement to an immigrations officer (not to a judge). It
guarantees the alien no notice before reinstatement of a prior
deportation order, affords him no real opportunity to contest the
facts underlying the reinstatement, and contemplates no
presentation of evidence.”).

                                27
is subject to a prior order of deportation, exclusion, or removal;

(2) whether the alien has been correctly identified; and (3)

whether the alien has illegally reentered the United States.

Additionally, the officer must communicate to the alien that he

has a “right to make a written or oral statement contesting th[e]

determination.” If the alien wishes, he may make a statement

contesting the determination and then check the box stating that

he made the statement. Nowhere on the Notice of Intent form

is there a statement alerting the alien that he may seek judicial

review, pursuant to § 1252(a)(5), in the federal courts of

appeals. The corresponding regulations, 8 C.F.R. § 241.8,

likewise fail to require that an alien be given notice that he has

a right to appeal. Moreover, the alien is usually deported

immediately, precluding any real attempt to obtain judicial

review unless that alien has counsel immediately available to

secure an emergency stay of removal. See Castro-Cortez v. INS,

                               28
239 F.3d 1037, 1040-43 (9th Cir. 2000). But most importantly,

for our purposes, the Notice of Intent form states:

       In accordance with Section 241(a)(5) of the Act, you are
       removable as an alien who has illegally reentered the
       United States after having been previously removed or
       departed voluntarily while under an order of exclusion,
       deportation or removal and are therefore subject to
       removal by reinstatement of the prior order. You may
       contest this determination by making a written or oral
       statement to an immigration officer. You do not have a
       right to a hearing before an immigration judge.
       (Emphasis added).

This language is misleading. We are persuaded that reasonable

persons reading this Notice would be led to believe that their

only avenue for relief if they desire to contest the reinstatement

order would be to make either a written or oral statement to the

immigration officer. The presence of an affirmative statement

concerning an avenue of relief (“You may contest this

determination by . . .”) immediately followed by a negative

command concerning what the alien may not do, creates the



                               29
impression that “these are the options.” Absent any affirmative

notice to the contrary, and combined with the velocity of the

reinstatement process, it is simply unrealistic to expect an alien

to recognize, understand and pursue his statutory right, pursuant

to § 1252(a)(5), to direct judicial review in the appropriate court

of appeals.

       We therefore find analogous the line of cases beginning

with Copeland establishing that where an alien is misled to

believe that he has no opportunity for judicial review, the lack

of an affirmative notice of the right to an appeal may combine

to constitute a denial of the meaningful opportunity for judicial

review, satisfying both § 1326(d)(2) and Mendoza-Lopez.

United States v. Copeland, 376 F.3d 61, 68-69 (2d Cir. 2004);

see Lopez, __ F.3d at __; United State v. Calderon, 391 F.3d

370, 375-76 (2d Cir. 2004); Sosa, 387 F.3d at 13; see also

Vargas-Garcia v. INS, 287 F.3d 882, 884 (9th Cir. 2002)

                                30
(finding that language contained in a Notice of Appeal form

misled aliens to believe that they need only make a brief

statement of their desire for appeal rather than state the specific

allegations of error). For example, even though the court in

Lopez rejected the argument that the mere absence of notice of

the right to appeal denied the alien the opportunity for

meaningful review, it accepted the claim that “affirmative

misstatements . . . functioned as a deterrent to seeking relief.”

Lopez, __ F.3d at __. Thus, based on the speed with which the

deportation order was effectuated and the fact that the

deportation proceeding’s “administrative nature makes it less

likely that an alien would immediately look outside the

administrative process for relief[,]” the court concluded that

where an alien has been misled to believe that no relief exists he

will have been denied the opportunity for meaningful judicial

review. Id.

                                31
       Here, Charleswell appeared pro se and indicated his

desire to contest the reinstatement order by checking the

appropriate box. He was never informed that he had relief

beyond this box and its corresponding statement. Consequently,

the lack of any notice concerning his right to a direct appeal in

combination with the misleading nature of the explicit language

of the reinstatement order and the speed with which aliens are

deported following a reinstatement process leads us to conclude

that he was effectively denied an opportunity to seek judicial

review, thereby meeting Mendoza-Lopez’s second requirement.

       We are simply unable to fathom or rationalize a

legitimate reason why the government would not want to fully

inform aliens of their statutory right to appeal. Although it

would require a slight change in the Reinstatement forms, a

sensibly easy way to cure this glaring deficiency would be to

amend the regulations governing the reinstatement process to

                               32
include, directly on the Notice/Intent form, some notice that an

alien may seek review of the reinstatement determination in the

appropriate court of appeals while at the same time changing the

language that would seem to convey that the exclusive remedy

for the alien is to make a statement to the immigration officer.

Although this would not address the more fundamental, and

potentially unconstitutional, concerns expressed by numerous

courts concerning the procedures associated with the actual

reinstatement proceeding, it would have cured the claimed

defect in this case and would satisfy our concerns regarding the

effective denial of Charleswell’s opportunity to obtain judicial

review.   While there are other, more troubling, questions

concerning the adequacy of the reinstatement procedures we

need not reach them today because we find that the failure to

notify Charleswell of his right to appeal, when combined with

the misleading language, is determinative. Because the District

                              33
Court based its denial of Charleswell’s attempt to collaterally

attack the 2001 Reinstatement entirely on the second

requirement of § 1326(d), and because this was in error, we

must reverse on this point and move to the third requirement,

whether the proceeding was fundamentally unfair.11

11.
  The District Court also determined that the opportunity for
habeas relief precluded Charleswell from meeting § 1326(d)(2).
But it is certainly not a foregone conclusion that merely
technically having the opportunity to appeal, for instance
through habeas relief, will preclude an alien from meeting the
second Mendoza-Lopez requirement. See Torres, 383 F.3d at
100-03; Copeland, 376 F.3d at 68; Sosa, 387 F.3d at 137; but
see United States v. Roque-Espinoza, 338 F.3d 724, 729 (7th
Cir. 2003) (holding that the possibility of judicial review,
including the ability to seek habeas relief, defeated an alien’s
claim that he was deprived of an opportunity to seek judicial
review). After all, even in Mendoza-Lopez, the alien technically
had the option of habeas review available to him but because he
was not made aware of this option, he could not have been
considered to have known it was available. In any event, we
need not determine whether the mere opportunity for habeas
review precludes an alien from meeting § 1326(d)(2) because no
habeas relief exists for review of a reinstatement order. See
Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162 (10th Cir.
2004) (holding that habeas relief is unavailable for appeals from
                                                    (continued...)

                               34
                 2. Fundamental Unfairness

       We turn next to the third requirement, under Mendoza-

Lopez and § 1326(d)(3), that the proceeding be “fundamentally

unfair.”12   Section 1326(d)(3) does not define the term

“fundamental fairness.” Thus it is necessary to briefly discuss

the contours of the term. At this juncture, while we have yet to

specifically address whether 1326(d)(3), in addition to proof of

some fundamental defect, also requires a showing of prejudice,

11.
  (...continued)
reinstatement orders where 8 U.S.C. § 1252 provides for explicit
direct review in the courts of appeal); Castro-Cortez v. INS, 239
F.3d 1037, 1041 (9th Cir. 2001). The District Court, therefore,
erred by including in its analysis the possibility that Charleswell
could have obtained habeas review of his reinstatement order,
and we need not consider whether his failure to apply for such
relief prevents him from meeting § 1326(d)(2).

12.
  In Mendoza-Lopez, the Court assumed without deciding, at the
government’s request, that the alien’s rights to due process were
violated by “the failure of the Immigration Judge to explain
adequately their right to suspension of deportation or their right
to appeal.” Mendoza-Lopez, 481 U.S. at 839.

                                35
it is essentially a foregone conclusion that this is so. Indeed,

here, both parties agree that in order to succeed on a collateral

challenge, under § 1326(d)(3), an alien must show not only that

the underlying proceeding suffered some fundamental defect,

but also that the result of the defect was prejudicial. To the

extent that we have not explicitly held that prejudice is a

necessary component under 1326(d)(3), we do so today. See

Torres, 383 F.3d at 103 n. 13 (noting that every circuit to have

addressed the issue has found that § 1326(d)(3) does require a

showing of prejudice). Thus, under § 1326(d)(3), in order for a

proceeding to be “fundamentally unfair,” the alien must

establish both that some fundamental error occurred and that as

a result of that fundamental error he suffered prejudice. See,

e.g., United States v. Perez, 330 F.3d 97, 103 (2d Cir. 2003)

(“To show fundamental unfairness, a defendant must show both

a fundamental procedural error and prejudice resulting from that

                               36
error.”) (internal quotations omitted); United States v. Torres-

Sanchez, 62 F.3d 227, 230 (8th Cir. 1995) (“[T]he establishment

of a fundamentally unfair hearing in violation of due process

requires a showing both of a fundamental procedural error and

that the error caused prejudice.”).

       Before reaching the substance of the fundamental

unfairness inquiry, we pause to address the argument “that §

1326(d)(3) requires a showing that the error in the deportation

hearing has resulted in a deprivation of a liberty or property

interest.” Luna, 436 F.3d at 319 (citing Torres, 383 F.3d at

103). To the extent that it might be argued that, for our Circuit,

the sole way to establish fundamental unfairness is through

proof of a deprivation of a liberty or property interest, we

respectfully disagree. It is true that, in Torres, we held that

“[w]ithout more, an error of law will ordinarily not rise to the

level of a due process violation,” and that because it is axiomatic

                                37
that discretionary relief is discretionary, there was no due

process liberty right in consideration for such relief and thus, no

“fundamental unfairness in failing to consider an alien for

[discretionary] relief.” Id. at 105-06.13 However, the question

13.
  This is not an altogether uncontroversial conclusion.
Disagreement exists over the exact nature of an alien’s right to
apply for discretionary relief. The disagreement hinges on
whether the constructive denial of the ability to seek
discretionary review is viewed more appropriately as a
substantive liberty or property interest or, alternatively, as a
fundamental procedural right. See United States v. Copeland,
376 F.3d 61, 70-71 (2d Cir. 2004) (cataloguing the disagreement
between the circuits); compare Torres, 383 F.3d at 104 (“Torres
alleges fundamental unfairness because he maintains that he had
a due process liberty interest in being considered for 212(c)
relief.”) with Copeland, 376 F.3d at 73 (“The issue . . . [is]
whether a denial of an established right to be informed of the
possibility of such relief can, if prejudicial, be a fundamental
procedural error. We believe that it can.”). Courts concluding
that the right is procedural have accordingly found that a
deprivation of the right may render the proceeding
fundamentally unfair. See Copeland, 376 F.3d at 73; United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004).
Courts concluding, as we did in Torres, that the right is not
procedural, but rather substantive, have held that a denial of the
right does not render the proceeding fundamentally unfair. See
                                                    (continued...)

                                38
we addressed, in Torres, was whether an error of law denying

an alien discretionary relief to which he may have been entitled

rendered an otherwise procedurally fair proceeding unfair.14

Consequently, we did not address the meaning of “fundamental

unfairness” in the context of a defendant who was challenging

some procedural defect in the underlying proceeding.

       There are at least two avenues by which a proceeding can

be fundamentally unfair.     First, as addressed in Torres, a



13.
  (...continued)
Torres, 383 F.3d at 104; United States v. Aguirre-Tello, 353
F.3d 1199, 1205 (10th Cir. 2004) (en banc); United States v.
Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002), cert. denied,
537 U.S. 1135, 123 S.Ct. 922, 154 L.Ed.2d 827 (2003); Smith v.
Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002).
14.
  In Torres, an alien contested his original deportation order,
which formed the basis for his criminal conviction for illegal
reentry. See id. at 94. The alien did not contend that he was
denied procedural due process, but instead that his removal
proceedings were rendered unfair by the IJ’s erroneous
conclusion that he was not eligible for any discretionary relief.
See id. at 104.

                               39
proceeding may be fundamentally unfair where it deprives an

alien of some substantive liberty or property right such that due

process is violated. Thus, in Torres, had section 212(c) “use[d]

explicit mandatory language in its regulations directing the

decisionmaker to reach a particular outcome if the substantive

predicates [were] present,” we would likely have found that a

state-created liberty interest had been denied to the alien,

rendering the proceeding fundamentally unfair if prejudice

ensued. 383 F.3d at 105 (quoting Frey v. Fulcomer, 132 F.3d

916, 925 n.7 (3d Cir. 1997)). Because we held that the statutory

language providing for discretionary relief was not mandatory,

and because we viewed the right at issue to be substantive, we

concluded that it did not rise to the level of fundamental

unfairness.

       Second, a proceeding may be fundamentally unfair where

an agency has violated procedural protections such that the

                               40
proceeding is rendered fundamentally unfair. See Torres, 383

F.3d at 106. We have not yet addressed what procedural

protections, if denied, rise to the level of fundamental fairness.15

However, as noted in United States v. Aguirre-Tello, 353 F.3d

1199, 1204 (10th Cir. 2004) (en banc), the Supreme Court has

suggested that errors that are “so fundamental that they may

functionally deprive the alien of judicial review[]” may establish

fundamental unfairness. Id. at 1204 (quoting Mendoza-Lopez,

482 U.S. at 839 n.17). Thus, some procedural deficiencies are

so core to the fairness of a proceeding that their deprivation, if


15.
 In Torres, we simply stated that:
      although the IJ erroneously concluded that Torres was
      ineligible to be considered for 212(c) relief, the IJ did
      inform Torres of the reasons for the Government’s
      charge that Torres was removable, did provide him an
      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.
383 F.3d at 106.

                                41
prejudicial, will render the proceeding fundamentally unfair.

For instance, an alien’s right to counsel in an immigration

hearing before an IJ is so fundamental to the proceeding’s

fairness that a denial of that right could rise to the level of

fundamental unfairness. Saakian v. INS, 252 F.3d 21, 24 (1st

Cir. 2001) (“[The right to counsel] is an integral part of the

procedural due process to which an alien is entitled.”) (quoting

Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993)); Orantes-

Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990);

see Xu Long Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001)

(“Congress has long recognized the importance of counsel in

immigration proceedings.”).         The ability to build an

administrative record before an IJ during his deportation hearing

is likewise so fundamental such that a denial, if prejudicial, may

also render the proceeding fundamentally unfair. See Gatechaw

v. INS, 25 F.3d 841, 845 (9th Cir. 1994). Some procedural

                               42
defects, however, are not so fundamental that they could render

the underlying proceeding fundamentally unfair. For example,

the right to be told of the possibility of being free on bond

pending appeal, while a procedural defect, is not fatal to the

entire proceeding. See United States v. Aguirre-Tello, 353 F.3d

1199, 1207 (10th Cir. 2004) (holding that the denial of this

procedural right did not render the proceeding fundamentally

unfair).

       Here, we must conclude that the INS’s failure to inform

Charleswell of his statutorily prescribed right to seek an appeal

of his reinstatement order, combined with the misleading

language contained in the reinstatement Notice of Intent form,

is a fundamental defect of the nature that, if prejudicial, renders

the proceeding fundamentally unfair.        Under the Supreme

Court’s own suggested test, see Mendoza-Lopez, 482 U.S. at 839

n.17, if a procedural defect is fundamental where it functionally

                                43
deprives the alien of judicial review, it is a fortiori that the

functional deprivation of a statutory right to appeal is itself a

fundamental defect. United States v. McCalla, 38 F.3d 675,

680-81 (3d Cir. 1994) (“[A] severely deficient deportation

proceeding which effectively deprives the defendant of his right

of direct appeal may preclude use of that deportation as a

predicate to prosecution under section 1326.”); see United States

v. Fares, 978 F.2d 52 (2d Cir. 1992) (finding that the denial of

an alien’s right to appeal, if prejudicial, is fundamentally unfair);

United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992)

(en banc); see also United States v. Holland, 876 F.2d 1533,

1536 (11th Cir. 1989) (“We disagree . . . that the denial of

judicial review alone renders the proceeding fundamentally

unfair. However, we do agree that if a defendant is denied

judicial review, a court must look closely at the proceeding on




                                 44
a collateral attack to ensure that no errors seriously prejudiced

the defendant.”) (internal citations omitted).

       We thus turn, finally, to the question of prejudice.

Whether Charleswell will be successful in his collateral

challenge of the 2001 Reinstatement order hinges on whether he

is able to show that he was prejudiced by the procedural

deprivation. See Fares, 978 F.2d at 57. Because the District

Court made no findings on this question, we will remand so that

the District Court, the more appropriate venue for the specific

factual inquiry that will need to be developed, has an

opportunity to address this question.

       However, because our Court has never spoken directly to

the issue of prejudice, we are compelled to offer some

guidance.16 For the majority of courts that have addressed it, the

16.
 In a not-precedential opinion United States v. Fellows, 50 Fed.
Appx. 82, 85 (3d Cir. 2002), a panel of this court asserted,
                                                  (continued...)

                               45
standard an alien must meet to establish prejudice is “a

reasonable likelihood that the result would have been different

if the error in the deportation proceeding had not occurred.”

Loaisiga, 104 F.3d at 487; see United States v. Sosa, 387 F.3d

131, 138 (1st Cir. 2004); United States v. Copeland, 376 F.3d

61, 73 (2004); United States v. Lopez-Vazquez, 227 F.3d 476,

485 (5th Cir. 2000); United States v. Perez-Ponce, 62 F.3d 1120,


16.
  (...continued)
without much discussion, that prejudice requires that the alien
“establish a reasonable likelihood that but for the errors
complained of he would not have been deported.” (quoting
Lopez-Vazquez, 227 F.3d at 485) (internal quotations omitted).
Applying this standard, the panel rejected the alien’s claim that
the IJ’s denial of the opportunity to be considered for a waiver
of deportation under section 212(c) created a reasonable
likelihood that he would have avoided deportation because of
his substantial arrest record (he was arrested eleven times) and
his lack of connections and employment in the United States.
The panel concluded that, “[h]is chance[s] of receiving a 212(c)
waiver if he were eligible for one are therefore less than sterling,
and we therefore find no prejudice.” This standard, as
propounded, was not precedential. We now adopt this standard
and make it so.

                                46
1122 (8th Cir. 1995); United States v. Aguirre-Tello, 353 F.3d

1199, 1209 (10th Cir. 2004). As the Court in Copeland noted,

this standard appears analogous to the standard required of a

defendant to prove an ineffective assistance of counsel claim.

Copeland, 376 F3d at 73. The Court of Appeals for the Ninth

Circuit, however, has held that an alien must only show that he

had a “plausible ground for relief from deportation.” United

States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004)

(internal quotations omitted). This standard appears to require

the alien to make a showing merely that there was some

plausible legal challenge he could have pursued had he not

suffered the defect. Id. Thus, while there is some disagreement

over the exact burden an alien carries when attempting to

establish prejudice, on balance we agree with the majority of

courts that prejudice requires a reasonable likelihood that the




                              47
result would have been different if the error in the deportation

proceeding had not occurred.17

       Just how the District Court will resolve this query, we

cannot say. However, because “[r]esolution of the prejudice

issue in the Section 1326(d)(3) context is somewhat akin to a

trial within a trial,” the District Court will have to determine

whether there is a reasonable probability that Charleswell would


17.
  Here, it makes sense to require such a burden because
Charleswell remains able to show, on the record, how, if at all,
the result could have been different. However, as some courts
have recognized, this standard is not necessarily fixed. Almost
all courts that have established a prejudice standard have done
so with scenarios that involved the erroneous denial, by an IJ, of
some opportunity to apply for discretionary relief, such as a
waiver under section 212(c). But some procedural defects may
be so central or core to a proceeding’s legitimacy, that to require
an alien to establish even a “reasonable likelihood” that he
would have obtained a different result establishes too high a
burden. See United States v. Luna, 436 F.3d 312, 321 (1st Cir.
2006) (“There may be some cases where the agency’s violations
of a petitioner’s rights were so flagrant, and the difficulty of
proving prejudice so great that prejudice may be presumed . . .
.”) (internal citations and quotations omitted).

                                48
have obtained relief had he not been denied the opportunity for

direct judicial review of his reinstatement order. Copeland, 376

F.3d at 73. Importantly, this inquiry should not be limited

merely to the predicate facts underlying the reinstatement

order.18 Because Charleswell was denied the opportunity to

directly appeal his reinstatement order, he was denied the

opportunity to contest the predicate elements leading to his

reinstatement (specifically, that he was subject to a prior order

18.
  Some courts have been tempted to conclude otherwise. See
De Sandoval v. Attorney General, 440 F.3d 1276, 1285 (11th
Cir. 2006) (“Petitioner fails to show how the additional
procedures she demands would have changed the result in her
case because she admitted all of the facts necessary to warrant
reinstatement of the original removal order under § 1231(a)(5)
. . . . Even if Petitioner had received all of the additional
procedural protections she requests, therefore, her existing
removal order still would have been reinstated.”); Alvarez-
Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002) (“[T]he
only issues to be determined are those establishing the agency’s
right to proceed under § 241(a)(5)–the alien’s identity, the
existence of a prior removal order, and whether the alien has
unlawfully reentered.”); United States v. Martinez-Vitela, 225
F.3d 665 (9th Cir. 2000).

                               49
of removal, that he was the same alien who was previously

removed, and whether he had entered illegally). But he was also

denied the opportunity to argue that the new reinstatement

provision, § 241(a)(5), 8 U.S.C. § 1231(a)(5), and its

corresponding regulations, 8 C.F.R. § 241.8,                   were

impermissibly        retroactive      as   applied     to    him. 1 9

19.
   In light of the Supreme Court’s very recent pronouncement in
Fernandez-Vargas, the extent and scope of the District Court’s
inquiry on this point has been significantly delimited. Compare
Fernandez-Vargas v. Gonzales, 548 U.S. __ (2006) with
Dinnall v. Gonzalez, 421 F.3d 247 (3d Cir. 2005). The Court
did not entirely foreclose the claim that § 241(a)(5) may be
impermissibly retroactive when applied to aliens who reentered
before IIRIRA’s effective date, see id., at __ n. 5, but it appears
to have significantly confined the grounds for such a claim.
Thus, the mere fact that § 241(a)(5) deprives aliens who
reentered before IIRIRA’s effective date of certain forms of
relief to which they were initially eligible is no longer a basis for
a finding of impermissible retroactivity. Id. at __ n. 10
(“Fernandez-Vargas’s claim to such relief was contingent, and
it was up to him to take some action that would elevate it above
the level of hope. It is not that these forms of relief are
discretionary []; it is rather that before IIRIRA’s effective date
Fernandez-Vargas never availed himself of them or took action
                                                      (continued...)

                                 50
       Here, as noted above, the District Court declined to

address the third Mendoza-Lopez requirement and made no

findings on the question of prejudice.         In short, if, after

obtaining all the facts necessary to determine Charleswell’s

exact posture, the District Court determines that there is

reasonable likelihood that the result would have been different

had the error in the deportation proceeding not occurred, the

reinstatement order will have been fundamentally unfair within

the meaning of § 1326(d)(3).

                                V.

       For the foregoing reasons, we will vacate Charleswell’s

conviction and remand so that the District Court may determine

whether Charleswell was prejudiced when he was deprived of

the opportunity to appeal his reinstatement order.


19.
  (...continued)
that enhanced their significance to him in particular . . . .”).

                                51
52
