                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 04-4178
                               ________________

United States of America,               *
                                        *
            Appellee,                   *
                                        *      Appeal from the United States
      v.                                *      District Court for the Northern
                                        *      District of Iowa.
Ernesto Garcia Rodriguez,               *
                                        *
            Appellant.                  *
                                        *
                                        *

                               ________________

                            Submitted: June 21, 2005
                                Filed: August 25, 2005
                              ________________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Ernesto Garcia Rodriguez appeals his conviction for illegal re-entry from
Mexico in violation of 8 U.S.C. § 1326. Rodriguez collaterally attacks the prior
removal order upon which his conviction is based. For the reasons discussed below,
we affirm the judgment of the district court.1

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
I.    BACKGROUND

       Rodriguez, a native and citizen of Mexico, became a legal permanent resident
of the United States in 1990. In April 1997, he was arrested in California on a felony
charge of driving under the influence of alcohol or drugs.2 Rodriguez pled guilty to
the charge. At the time of his plea, Rodriguez understood that the conviction would
cause him to be deported.

       On January 4, 1999, Rodriguez appeared before an immigration judge (“IJ”)
for a deportation hearing. The IJ advised him of his right to counsel and his right to
appeal the decision of the IJ to the Board of Immigration Appeals (BIA). The IJ
ordered Rodriguez to be deported to Mexico as an aggravated felon. Rodriguez asked
the IJ, “If I were to appeal, what are my possibilities of winning?” The IJ replied,

      Well, the appeals court made a ruling that . . . an Arizona statute
      involving drunk driving is an aggravated felony. They have not
      specifically ruled on the California statute yet. However, my review of
      the two statutes shows they are almost identical. In many ways, the
      Arizona statute is much broader than the California statute, so I can’t tell
      you what they would decide. But it doesn’t look good. Otherwise, I
      would give you an option. I don’t like deporting people away from their
      families unless the law very clearly applies. I have a family myself and
      I wouldn’t want to be deported either. So I take those things in
      consideration. Would you like to appeal my decision or would you like
      to accept it?

      Rodriguez then asked how long an appeal would take. The IJ responded
“around six to twelve months.” Rodriguez asked whether he could move his case to
Iowa. The IJ explained that there is no immigration court in Iowa and that the closest


      2
       Rodriguez already had eight previous convictions for driving under the
influence of alcohol from July 1990 through January 1996.
                                          -2-
one to Iowa would probably be Omaha or Chicago. Rodriguez asked if he could
move the case to one of those locations. The IJ responded that there was no reason
to address a change of case location unless, on appeal, the BIA found a reason to
remand for further proceedings. Next, Rodriguez asked whether the IJ could give him
voluntary departure. The IJ explained that “under the law you are not eligible for
voluntary departure because your crime is classified as an aggravated felony.” The
IJ also discussed the possibility of adjustment of status if Rodriguez were to marry
his girlfriend, a United States citizen. Finally, the IJ asked, “Would you like to
reserve your right of appeal or do you want to accept the decision I have made
today?” Rodriguez responded, “I accept your decision.” He was then deported to
Mexico. Had Rodriguez appealed his decision to the BIA and received an
unfavorable decision, he could have obtained judicial review in a federal court of
appeals.

       In May 2001, Rodriguez illegally re-entered the United States. In July 2003,
he was discovered in Iowa due to an arrest for operating a motor vehicle while
intoxicated or drugged. Rodriguez was indicted on one count of illegal re-entry in
violation of 8 U.S.C. § 1326. He agreed to a bench trial pursuant to Fed. R. Crim. P.
23(a). At trial, Rodriguez collaterally attacked his 1999 deportation order, claiming
a due process defect because the IJ allegedly misinformed him in a way that led him
not to appeal the order. The district court found that no defect prevented Rodriguez
from appealing the 1999 deportation order. Consequently, the district court
pronounced Rodriguez guilty of illegal re-entry. He was sentenced to 30 months’
imprisonment. Rodriguez appeals, arguing that the district court erred in rejecting his
collateral attack on the 1999 deportation order.

II.   DISCUSSION

       We review the district court’s findings of fact for clear error, but we review
de novo whether those facts establish a due process defect. United States v. Torres-

                                          -3-
Sanchez, 68 F.3d 227, 229 (8th Cir. 1995). An alien’s ability to collaterally attack a
deportation order in a criminal proceeding under 8 U.S.C. § 1326 is governed by
subsection (d) of that statute:

      In a criminal proceeding under this section, an alien may not challenge
      the validity of the deportation order . . . 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).

       We have recognized subsection (d) as a codification of United States v.
Mendoza-Lopez, 481 U.S. 828 (1987), which established due process requirements
for the application of § 1326. United States v. Mendez-Morales, 384 F.3d 927, 928-
29 (8th Cir. 2004). Under Mendoza-Lopez, consistent with § 1326(d), an alien must
show that “(1) an error in the deportation proceedings rendered the proceedings
fundamentally unfair in violation of due process, and (2) the error functionally
deprived the alien of the right to judicial review.” Mendez-Morales, 384 F.3d at 929
(quoting Torres-Sanchez, 68 F.3d at 230). An error cannot render the proceedings
fundamentally unfair unless it resulted in actual prejudice. Torres-Sanchez, 68 F.3d
at 230. “Actual prejudice exists where defects in the deportation proceedings ‘may
well have resulted in a deportation that would not otherwise have occurred.’” Id.
(quoting United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989)).

       Rodriguez argues that he was deprived of judicial review. He contends he
waived his right to appeal to the BIA only after he was “materially misinformed” by
the IJ that the appeals court would most likely consider drunk driving to be an

                                         -4-
aggravated felony. Subsequent Ninth Circuit and Supreme Court rulings held that
drunk driving is not a crime of violence and thus not an aggravated felony for
immigration law purposes. See Leocal v. Ashcroft, 125 S. Ct. 377 (2004); United
States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).

       Rodriguez relies upon Mendoza-Lopez, in which an IJ failed to adequately
inform aliens of their eligibility for suspension of deportation before accepting the
aliens’ waiver of their right to appeal a deportation order. 481 U.S. at 831 & n.3. The
aliens were later charged under § 1326 with illegal re-entry, and they collaterally
attacked the deportation order. The Supreme Court held that “[b]ecause the waivers
of their rights to appeal were not considered or intelligent, [the aliens] were deprived
of judicial review of their deportation proceeding.” Id. at 840.

       The IJ’s statements to Rodriguez regarding his chances on appeal do not
implicate the holding of Mendoza-Lopez. The aliens in Mendoza-Lopez could not
make a considered and intelligent waiver of their right to appeal because they were
not adequately informed of their eligibility for an existing form of statutory relief. In
contrast, Rodriguez argues only that the IJ did not adequately inform him of a future
change in the interpretation of the law. A subsequent change in the law does not
render Rodriguez’s waiver of his right to appeal “not considered or intelligent.” Id.
at 840; see United States v. Killgo, 397 F.3d 628, 629 n.2 (8th Cir. 2005) (explaining
that a failure to anticipate a change in the law does not place that change outside the
scope of a waiver of the right to appeal).

      The record demonstrates that Rodriguez was aware of and understood his right
to appeal.3 In response to a question from Rodriguez regarding his chances on

      3
       The dissent relies on Santos-Vanegas to reach a different result. However,
Santos-Vanegas is distinguishable on its facts. Santos-Vanegas, who “spoke no
English and could not read or write in any language,” filed an appeal with the BIA
with the assistance of an INS employee. 878 F.2d at 249. His statements in the
                                           -5-
appeal, the IJ discussed the current law on drunk driving as an aggravated felony and
concluded, “I can’t tell you what they would decide. But it doesn’t look good.” This
in no way deprived Rodriguez of his known right to present his case to the BIA and,
if unsuccessful there, to a court of appeals. Therefore, Rodriguez has not shown that
an error in the proceeding before the IJ functionally deprived him of the right to
judicial review. Mendez-Morales, 384 F.3d at 929. Rodriguez’s attempt to
collaterally attack the 1999 deportation order fails.

III.   CONCLUSION

       Because Rodriguez does not meet the requirements to collaterally attack his
1999 deportation order under 8 U.S.C. § 1326(d), we affirm his conviction for illegal
re-entry from Mexico.




Notice of Appeal “reveal[ed] the defendant’s confusion about the deportation order
issued by the ILJ and its consequences.” Id. at 250. The BIA denied his appeal, the
deportation notice he received six days later “did not in any way indicate that he
could pursue further appeal in the federal courts,”and “[n]either had the ILJ or anyone
else earlier advised him of any opportunity to appeal beyond the administrative
level.” Id. Because Santos-Vanegas’s actions demonstrated that he had no intention
of waiving his right to appeal, we held that “[t]he government ought to have told the
defendant of his opportunity to pursue further challenge in federal court.” Id. at 251
(emphasis added).

       In the instant case, by contrast, Rodriguez demonstrated no confusion about the
deportation order and its consequences. At a minimum, he was aware that he had a
right to challenge that order with an appeal to the BIA, and he knowingly waived that
right. No right to petition for review in federal circuit court arises unless an alien first
appeals to the BIA. See 8 U.S.C. § 1252(d)(1). Unlike Santos-Vanegas, Rodriguez
chose to waive his right of appeal.
                                            -6-
HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. Having carefully reviewed the record, I conclude that
Rodriguez did not make a knowing and intelligent waiver of his right to appeal. The
IJ’s acceptance of his waiver therefore resulted in a deprivation of Rodriguez’s right
to judicial review. I arrive at this conclusion for two reasons.

       First, our court has unambiguously held that an alien’s waiver of his appellate
rights cannot be knowing or intelligent if the alien is not advised “of his right to
appeal the administrative decision in federal court.” United States v. Santos-Vanegas,
878 F.2d 247, 251 (8th Cir. 1989). At Rogriguez’s deportation hearing, the IJ advised
the respondents as a group that they would have a right to appeal to the BIA if they
disagreed with his decision. The IJ also asked Rodriguez individually if he wanted
to reserve his right to appeal or accept the decision made by the IJ. At no point in the
hearing, however, did the IJ inform Rodriguez or the other respondents that they
would have the right to judicial review, as opposed to administrative review.4

      The failure of the IJ to inform Rodriguez of his right to appeal to the federal
courts before accepting his waiver of his right to appeal was sufficient in itself to
deprive Rodriguez of an opportunity for meaningful review. This omission is more
serious because the IJ’s other comments suggest that he could be relied upon to
provide a comprehensive assessment of the respondent aliens’ legal rights and
options. In his initial remarks to the respondent aliens, the IJ clarified:




      4
        While the IJ stated that “the appeals court made a ruling” that drunk driving
is an aggravated felony, this was a reference to a BIA decision, In Re Carlos Istalin
Magallanes-Garcia, 22 I. & N. Dec. 1(1998). The Ninth Circuit addressed this
question more than two years after Rodriguez’s hearing before the IJ. See United
States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).
                                          -7-
      [C]ontrary to popular belief, I do not work for the Immigration Service.
      The purpose of today’s hearing is for me to determine the validity of the
      charges made against you by the Immigration Service. If the charges
      turn out to be invalid, I will dismiss the case against you. And even if
      the charges are valid, there are some times [sic] ways to avoid
      deportation in the immigration laws. That will depend on the facts of
      your case. Once I know more about your case, I will let you know if you
      are eligible to avoid deportation or not.

Later, addressing Rodriguez’s request for voluntary departure, he stated: “You are
not eligible for anything, not a single thing.” These comments are troubling both
because they create the impression that the IJ would be offering legal advice to the
respondents, and because the assessment the IJ made of Rodriguez’s case was
incomplete if not incorrect.

       The IJ’s comments were based on the assumption that Rodriguez’s conviction
for driving under the influence of alcohol was an aggravated felony. Because this
conclusion was consistent with recent BIA determinations, the IJ also advised
Rodriguez that any appeal was not likely to succeed. By omitting any mention of a
potential appeal to the federal courts, the IJ created the impression that the issue was
firmly settled, when, in fact, the Ninth Circuit had not yet addressed the matter. The
Ninth Circuit and Supreme Court subsequently determined that driving under the
influence was not an aggravated felony. Leocal v. Ashcroft, 125 S. Ct. 377 (2004);
United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001). This is more than
a mere failure to anticipate a future change in the interpretation of the law;5 it is a

      5
        In some cases an IJ’s failure to anticipate a change in interpretation has been
held to invalidate a waiver of appellate rights. However, this issue has not been
treated consistently throughout the circuits. Compare United States v. Calderon, 391
F.3d 370 (2d Cir. 2004) (holding that failure to advise an eligible alien of the
possibility of relief under § 212(c) invalidated a waiver of appeal rights even though
the BIA believed such relief was statutorily barred and the Supreme Court had not yet
ruled on the issue), United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004)
                                          -8-
failure to adequately advise Rodriguez of his current appellate rights. In this group
proceeding the IJ had “an affirmative obligation . . . to advise [Rodriguez] effectively
of his . . . right to judicial review of deportation proceedings,” an obligation which
is heightened, not diminished, by Rodriguez’s decision to proceed without counsel.
Santos-Vanegas, 878 F.2d at 251. Rodriguez should have been informed of his
opportunity to appeal his deportation order in federal court. I would therefore hold
that Rodriguez was deprived of the right to judicial review.
                          ______________________________




(same), and United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (holding
that alien’s waiver of appellate rights was not considered or intelligent where the IJ
did not inform him of his eligibility for relief from deportation because she believed
the alien had been convicted of an aggravated felony) with United States v. Aguirre-
Tello, 353 F.3d 1199 (10th Cir. 2004) (en banc) (holding that an alien did not have
a constitutional right to be informed of discretionary relief he or she may be eligible
for) and United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003) (suggesting
that an alien was not deprived of the right to judicial review where the IJ failed to
inform him of his eligibility for relief under § 212(c)).
                                          -9-
