                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2004

USA v. Torres
Precedential or Non-Precedential: Precedential

Docket No. 03-2574




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"USA v. Torres" (2004). 2004 Decisions. Paper 287.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/287


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                        PRECEDENTIAL                        District Judge*

   UNITED STATES COURT OF                             (Filed: September 7, 2004)
          APPEALS
    FOR THE THIRD CIRCUIT                      MAUREEN KEARNEY ROWLEY
                                               Chief Federal Defender
                                               DAVID L. McCOLGIN
             No. 03-2574                       Supervising Appellate Attorney
                                               ELIZABETH T. HEY
                                               Assistant Federal Defender
  UNITED STATES OF AMERICA                     Defender Association of Philadelphia
                                               Federal Court Division
                   v.                          Curtis Center,
                                               Independence Square West
     JOSE AUGUSTIN TORRES,                     Suite 540 West
 a/k/a Juan Diaz, a/k/a Victor Torres,         Philadelphia, PA 19106
a/k/a Anthony Rodriguez, a/k/a Joselito
    Torres, a/k/a Martin Rodriguez                   Counsel for Appellant

        Jose Augustin Torres,                  PATRICK L. MEEHAN
                                               United States Attorney
                           Appellant           LAURIE MAGID
                                               Deputy United States Attorney
                                               for Policy and Appeals
                                               ROBERT A. ZAUZMER
          On Appeal from the                   Assistant United States Attorney,
      United States District Court             Senior Appellate Counsel
for the Eastern District of Pennsylvania       ANITA EVE
     (Dist. Court. No. 02-cr-00427)            Assistant United States Attorney
             District Judge:                   Office of the United States Attorney
    Honorable Eduardo C. Robreno               615 Chestnut Street, Suite 1250
                                               Philadelphia, PA 19106

                                                     Counsel for Appellee
 Submitted Under Third Circuit LAR
              34.1(a)
          January 23, 2004                           *
                                                           Honorable Dickinson R.
                                               Debevoise, Senior United States District
  Before: ALITO and CHERTOFF,                  Judge for the District of New Jersey,
  Circuit Judges, and DEBEVOISE,               sitting by designation.

                                           1
                                                           Torres was admitted into the United
                                                   States on July 14, 1989, as a lawful
                                                   permanent resident from the Dominican
      OPINION OF THE COURT                         Republic, his native country. On August
                                                   30, 1993, Torres was convicted of a felony
                                                   drug trafficking offense in the Superior
CHERTOFF, Circuit Judge.                           Court of New Jersey, Middlesex County.
                                                   Torres voluntarily returned to the
       Jose Augustin Torres appeals his
                                                   Dominican Republic but on May 23,
conviction for unlawful re-entry into the
                                                   1998, he attempted to re-enter the United
United States after having been deported.
                                                   States.
On July 18, 2002, Torres was indicted for
illegal re-entry after deportation in                     Torres’s 1993 conviction rendered
violation of 8 U.S.C. § 1326. The                  him removable.1 INS officials therefore
indictment also charged that, prior to his         detained Torres at the point of his 1998
removal, Torres had been convicted of an           entry and placed him in removal
aggravated felony, making him subject to           proceedings. In July of 1998, a hearing
the enhanced penalties set forth in section        was held before an Immigration Judge (IJ)
1326(b)(2). Torres filed a motion to               at which Torres was not represented by
dismiss the indictment, arguing that the           counsel. The IJ informed Torres of his
underlying removal order was flawed and            rights during and after the hearing,
could not, therefore, support a conviction         including his right to appeal the outcome
for unlawful re-entry. The District Court          of his removal proceedings. The IJ then
denied the motion to dismiss. Reserving            found Torres removable as charged, and
his right to appeal, Torres pled guilty on         ordered him removed to the Dominican
February 24, 2003. On May 15, 2003, the            Republic at Torres’s request. Torres
District Court sentenced Torres to 27              accepted the IJ’s decision, and did not
months imprisonment, three years                   appeal the IJ’s determination. At no time
supervised release and a $100 special
assessment. Torres appeals, maintaining
                                                          1
that his removal order cannot serve as a                    Under recent amendments to the
predicate to his conviction for unlawful re-       Immigration and Nationality Act, the term
entry.                                             “removal” embraces concepts of both
                                                   “deportation” and “exclusion.” See Illegal
       This case presents a question               Immigration Reform and Immigrant
concerning the scope of an alien’s right to        Responsibility Act, Pub. L. No. 104-208,
collaterally attack the removal order that         Div. C, § 308, 1996 U.S.C.C.A.N. (110
underlies a conviction for unlawful re-            Stat.) 3009-620, 3009-621; 8 U.S.C. §
entry.                                             1229a.      Saying that Torres was
                     I.                            “removable” is equivalent to saying that
                                                   he was “deportable.”

                                               2
during the hearing, however, did the IJ             inappropriate predicate for a conviction
inform Torres that he was eligible for any          under 8 U.S.C. § 1326. See United States
form of discretionary relief from removal.          v. Mendoza-Lopez, 481 U.S. 828 (1987).
Torres was removed on September 2,
                                                            After the District Court held an
1998. Despite his removal and without
                                                    initial hearing on Torres’s motion, Torres
authorization, Torres was found yet again
                                                    sought to admit expert testimony on his
in the United States on February 25, 2002.
                                                    motion. The District Court, finding the
Torres’s indictment under 8 U.S.C. § 1326
                                                    testimony to be irrelevant, denied Torres’s
followed on July 18, 2002.
                                                    request to admit expert testimony.
        Before the District Court, Torres           Simultaneously, the District Court denied
moved to dismiss the indictment                     Torres’s motion to dismiss the
contending that the order of removal upon           indictment.3 Torres then pled guilty to the
which it was based was flawed. Torres               indictment, subject to his right to appeal.
argued that, during his 1998 removal                The District Court imposed sentence and,
proceedings, he was entitled to be                  soon after, issued a written opinion
considered for discretionary relief from            explaining its decision to deny Torres’s
removal under section 212(c) of the                 motion to dismiss.          Torres timely
Immigration and Nationality Act (“INA”),            appealed.
8 U.S.C. § 1182(c) (1995) (repealed by
                                                          We have jurisdiction under 28
Illegal Immigrant Reform and Immigrant
                                                    U.S.C. § 1291, and review this issue of
Responsibility Act (IIRIRA), Pub. L. No.
                                                    law de novo. See Idahoan Fresh v.
104-208, Div. C, § 304(b), 1996
                                                    Advantage Produce, Inc., 157 F.3d 197,
U.S.C.C.A.N. (110 Stat.) 3009-597).2
Torres attributed the IJ’s belief that Torres
was not eligible for 212(c) relief as being
                                                           3
based on an erroneous conclusion of law                     We note that, in the wake of St.
that was later corrected by the Supreme             Cyr, only one Circuit has adopted the
Court’s decision in INS v. St. Cyr, 533             position Torres advocates. Compare
U.S. 289 (2001). Further, Torres asserted           United States v. Aguire-Tello, 353 F.3d
that the IJ’s failure to inform him of his          1199, 1207-10 (10th Cir. 2004) (en banc),
eligibility for discretionary relief rendered       and United States v. Wilson, 316 F.3d
that removal proceeding                             506, 509-511 (4th Cir. 2003), and United
unconstitutional—and therefore an                   States v. Mendoza-Mata, 322 F.3d 829,
                                                    832 (5th Cir. 2003), and United States v.
                                                    Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir.
       2
         The discretionary relief from              2002), and United States v. Roque-
removal provided for in 8 U.S.C. §                  Espinoza, 338 F.3d 724, 728 (7th Cir.
1182(c) was commonly referred to as                 2003), with United States v. Ubaldo-
“212(c) relief.” For convenience, we will,          Figueroa, 364 F.3d 1042, 1051 (9th Cir.
occasionally, use that term.                        2004).

                                                3
202 (3d Cir. 1998) (exercising plenary                      and who are returning to a
review of legal issue of statutory                          lawful unrelinquished
construction); United States v. Goldberg,                   domicile of seven
67 F.3d 1092, 1097 (3d Cir. 1995)                           consecutive years, may be
(holding that questions of constitutional                   admitted in the discretion of
waiver are reviewed de novo).                               the Attorney General . . . .
                                                            The first sentence of this
                     II.
                                                            subsection shall not apply to
       Torres’s 1998 removal order was                      an alien who has been
an element of his offense of illegal re-                    convicted of one or more
entry. See 8 U.S.C. § 1326. According to                    aggravated felonies and has
Torres, at the time of his 1998 removal                     served for such felony or
proceeding, he was wrongly denied                           f e l o n i e s a term o f
consideration for 212(c) relief from                        imprisonment of at least 5
removal. In order to address Torres’s                       years.
challenge, it is necessary for us to briefly
                                                     See 66 Stat. at 187 (codified at 8 U.S.C. §
rehearse the recent history of the
                                                     1182(c) (1995)); see also St. Cyr, 533 U.S.
immigration laws.
                                                     at 294-95. Thus, for aggravated felonies,
                     A.                              the critical threshold for eligibility for
                                                     212(c) relief was a sentence below five
       The 1952 INA contained a
                                                     years.
provision excluding from the United
States aliens convicted of the illicit traffic              In 1996, Congress eliminated the
in narcotics. See 66 Stat. 182-187; see              Attorney General’s discretion under INA
also St. Cyr, 533 U.S. at 294-95. The                section 212(c) to waive removal for aliens
same provision, which was section 212(c)             excludable for having committed even
of the INA, granted the Attorney General             non-aggravated controlled substance
discretion to waive removal in the case of           offenses.     See Anti-Terrorism and
lawful permanent residents who had                   Effective Death Penalty Act (AEDPA) §
resided in the United States for at least            440(d), Pub. L. No. 104-132, 110 Stat.
seven years, so long as they had served              1277; Illegal Immigrant Reform and
less than five years in prison for an                Immigrant Responsibility Act (IIRIRA) §
“aggravated” felony (separately defined at           304(b), Pub. L. No. 104-208, 110 Stat.
8 U.S.C. § 1101(a)(43) (1995)):                      3009-597. The five-year threshold was
                                                     also thereby eliminated. The question
       Aliens lawfully admitted for
                                                     soon arose whether the 1996 elimination
       permanent resident who
                                                     of the Attorney General’s discretion
       temporarily proceeded
                                                     operated retroactively. That is, in the
       abroad voluntarily and not
                                                     wake of AEDPA and IIRIRA, did the
       under an order of [removal],
                                                     Attorney General retain discretion to grant

                                                 4
212(c) relief from removal for aliens               Soriano and the Courts of Appeals
whose non-aggravated removable offense              decisions that followed it took the position
occurred prior to the change in the law,            that the elimination of 212(c) relief
but whose removal had not yet been                  enacted by AEDPA and IIRIRA acted
effected?                                           retroactively; that is, 212(c) relief was not
                                                    available to any criminal alien whose
        The first challenge to retroactive
                                                    removal would be effected after the
application of this broader preclusion of
                                                    effective dates of AEDPA and IIRIRA.
212(c) relief came from aliens who had
pled guilty to aggravated felonies prior to                 In 2001, the Supreme Court
the enactment of AEDPA and IIRIRA but               resolved the question through an appeal
who served less than five years                     from a denial of a writ of habeas corpus.
imprisonment. This group of aliens would            See St. Cyr, 533 U.S. at 315. The Court
have maintained the possibility of 212(c)           reversed Soriano, and held that the
relief if they faced removal before the             elimination of 212(c) relief effected by
effective dates of AEDPA and IIRIRA.                AEDPA and IIRIRA was not retroactive.4
Seeking to retain their opportunity for             Thus, the Court explained, 212(c) relief
212(c) relief after the new laws became             remained available on the same terms after
effective, these aliens argued, in part, that       the effective dates of AEDPA and IIRIRA
they had entered pleas of guilty to the             to aliens who pled guilty before AEDPA
aggravated felonies in an effort to keep the
sentence imposed below the five-year
                                                           4
prison term threshold enumerated in 8                        St. Cyr, like Torres, Soriano and
U.S.C. § 1182(c). Thus, they had pled               many of the other aliens who had
guilty with the expectation under the               challenged whether AEDPA and IIRIRA
former law that, despite their felony               could retroactively eliminate 212(c) relief,
convictions, they would remain eligible             had pled guilty to the offense that rendered
for discretionary relief from removal.              him removable. St. Cyr, 533 U.S. at 293.
That being so, it would be unfair and               The Supreme Court found this fact
unconstitutional to retroactively apply the         significant because it was at least possible
elimination of 212(c) discretionary relief          that St. Cyr had entered his plea in
by AEDPA and IIRIRA against them.                   reliance on the availability—and likely
                                                    receipt—of 212(c) relief to avoid removal.
       The Attorney General disagreed.              Id. at 321-24. We have recently held that
See In re Soriano, 21 I. &. N Dec. 516,             AEDPA and IIRIRA could not act
Int. Dec. 3289 (BIA 1996). Eventually, so           retroactively to eliminate 212(c) relief
did a number of the Courts of Appeals.              even for an alien whose removable offense
See, e.g., DeSousa v. Reno, 190 F.3d 175,           conviction was secured after the alien
186-87 (3d Cir. 1999); Requena-                     rejected a plea agreement in favor of trial.
Rodriguez v. Pasquarell, 190 F.3d 299,              See Ponnapula v. Ashcroft, 373 F.3d 480,
306-08 (5th Cir 1999). From 1996-2001,              494-96, 501 (3d Cir. 2004).

                                                5
and IIRIRA.                                                Torres argues that the IJ’s failure to
                                                   consider the availability of 212(c) relief
                    B.
                                                   was a fundamental error because St. Cyr
       Because of the timing of Torres’s           later established that, at the time he was
narcotics convictions and subsequent               ordered removed, Torres was actually
removal, he was wrongly precluded from             eligible to be considered for 212(c) relief.
seeking 212(c) relief because of the then-         Importantly, Torres also asserts that the
prevailing view that AEDPA and IIRIRA              IJ’s error of law denied him an
applied retroactively. In 1993, Torres pled        opportunity for judicial review of his
guilty to committing a drug offense and            removal order. According to Torres, his
was sentenced to less than five years’             opportunity to seek judicial review of the
imprisonment. Under the law at that time,          IJ’s decision was effectively precluded by
Torres was removable, see 8 U.S.C. §               the IJ’s failure to disclose that Torres
1182(a)(2)(A)(i)(II) (1995), but also              would have been eligible for consideration
eligible to be considered for 212(c) relief.       for discretionary relief but for the reigning
See 8 U.S.C. § 1182(c) (1995).5                    interpretation of AEDPA and IIRIRA.
                                                   Torres reasons that, acting pro se, he
        But Torres’s removal proceedings
                                                   would have no reason to know that, but
did not begin until 1998—after the
                                                   for Soriano, he was eligible for
effective dates of AEDPA and IIRIRA.
                                                   discretionary relief.      Had the IJ so
At that time, the view binding on the IJ
                                                   informed him, he might have sought
adjudicating Torres’s removal proceeding
                                                   judicial review—in the BIA or in the
was that aliens like Torres were subject to
                                                   federal courts—in an effort to change the
the post-AEDPA/IIRIRA rules, and
                                                   law. Torres therefore argues that he
therefore were not eligible for 212(c)
                                                   should be permitted, in this criminal action
relief. Presumably for this reason, the IJ
                                                   for illegal re-entry, to challenge the IJ’s
did not inform Torres that 212(c) relief
                                                   conduct during his removal proceeding.
from removal might be available to him.
                                                                        III.
                                                          May Torres collaterally attack the
       5
        According to statistics maintained         1998 removal order that satisfies an
by the Executive Office of Immigration             element of his conviction for illegal re-
Review, 212(c) relief was granted in more          entry?
than half the cases to which it applied.                  An alien subject to illegal re-entry
See Julie K. Rannik, The Anti-Terrorism            prosecution under 8 U.S.C. § 1326 may
and Effective Death Penalty Act of 1996:           challenge the underlying removal order
A Death Sentence for the 212(c) Waiver,            only under certain circumstances.
28 U. Miami Inter-Am. L. Rev. 123, 150             Mendoza-Lopez, 481 U.S. at 839. In
n.80 (1996); see also St. Cyr, 533 U.S. at         Mendoza-Lopez, two Mexican nationals
296 n. 5.

                                               6
were separately arrested in Nebraska,             District Court and the Eighth Circuit
transported to Colorado, and placed in a          agreed in part, permitting the aliens’
group deportation hearing where they              collateral challenge at the threshold.
appeared pro se. Id. at 830-31. At the
                                                          The Supreme Court, at the
hearing, the IJ: (1) did not inform them of
                                                  Government’s request, assumed that the
their right to counsel; (2) discussed, at
                                                  deportation proceeding was fundamentally
least to some extent, their right to seek
                                                  unfair, focusing instead on the threshold
suspension of deportation; and (3)
                                                  question of whether an alien indicted for
accepted waiver of their appeal rights.
                                                  criminally violating 8 U.S.C. § 1326 could
See id. at 831 & n.4. The aliens were
                                                  collaterally challenge the deportation order
ordered deported to Mexico, and that
                                                  satisfying an element of that offense. Id.
deportation order was effected on
                                                  at 834 & n.8, 839-40. The Court found
November 1, 1984. Id. at 830. At the
                                                  that nothing in section 1326 permitted an
time of their deportation, the two aliens
                                                  alien to bring such a collateral attack. See
were provided with a copy of an INS form
                                                  id. at 837.
informing them that a return to the United
States without permission would                           But, the Court concluded, due
constitute a felony. Id.                          process requires that a “collateral
                                                  challenge to the use of a deportation
       Just over a month later, both aliens
                                                  proceeding as an element of a criminal
were again separately arrested in
                                                  offense must be permitted” when the
Nebraska. Id. Both were then indicted for
                                                  underlying proceeding is “fundamentally
criminally violating 8 U.S.C. § 1326, and
                                                  unfair” and when “the deportation
both responded by challenging their
                                                  proceeding effectively eliminates the right
indictment on the ground that they were
                                                  of the alien to obtain judicial review.” Id.
denied fundamentally fair deportation
                                                  at 839. Applying that rule to the case at
hearings. Id. at 831. They alleged that
                                                  hand, the Court concluded that the IJ’s
their deportation proceeding was
                                                  conduct—not adequately explaining
fundamentally unfair because the IJ
                                                  suspension of deportation and accepting a
“inadequately informed them of their right
                                                  waiver of the aliens’ appeal right despite
to counsel . . . and accepted their
                                                  that inadequate explanation—effectively
unknowing waivers of the right to apply
                                                  denied the aliens their right to judicial
for suspension of deportation.” Id.6 The
                                                  review. Id. at 840. Coupled with the
                                                  Government’s concession that the
       6
         Although the Supreme Court’s             proceedings were fundamentally unfair,
holding was premised on the IJ’s                  the Court concluded that the aliens’
acceptance of the aliens’ unknowing
waiver of their appeal rights, it does not
appear from the Court’s recitation of the         aliens alleged error on that basis. Id. at
procedural history of the case that the           831, 839-41.

                                              7
collateral challenge must be sustained. Id.       an alien will be permitted to mount a
at 842.                                           collateral challenge to the underlying
                                                  removal order. See United States v.
      Congress later codified the Court’s
                                                  Roque-Espinoza, 338 F.3d 724, 728 (7th
holding in Mendoza-Lopez at 8 U.S.C. §
                                                  Cir. 2003); United States v. Wilson, 316
1326(d), which states:
                                                  F.3d 506, 509 (4th Cir. 2003); United
       (d) Limitation on collateral               States v. Fernandez-Antonia, 278 F.3d
       attack on und erlying                      150, 157 (2d Cir. 2002).
       [removal] order
                                                         In 1998, Torres did not pursue his
          In     a     criminal                   right to appeal the removal order
          proceeding under this                   underlying his current criminal conviction.
          section, an alien may                   The Government does not argue that he
          not challenge the                       failed to exhaust his administrative
          validity of the                         remedies, as required by section
          [removal] order                         1326(d)(1). The only questions for us,
          described in subsection                 therefore, are whether, at the time of his
          (a)(1) of this section or               removal, Torres was denied his
          subsection (b) of this                  opportunity for “meaningful judicial
          section unless the alien                review” and whether entry of the order
          demonstrates that–                      was “fundamentally unfair.” See 8 U.S.C.
                                                  §§ 1326(d)(2)-(3).
          (1) the alien exhausted
          any administrative                                           A.
          remedies that may have
                                                          Torres’s contention that he was
          been available to seek
                                                  denied meaningful judicial review is
          relief against the order;
                                                  threefold. First, he contends that all
          (2) the [removal]                       avenues of judicial review—other than
          proceedings at which                    administrative review—were legally
          the order was issued                    foreclosed to him, presumably by the
          improperly deprived the                 operation of either 8 U.S.C. §
          alien of the opportunity                1252(a)(2)(B) or (C), which bars direct
          for judicial review; and                review of the removal proceedings of
                                                  certain felons. Second, he argues that,
          (3) the entry of the
                                                  because the predominant view at the time
          o r d e r      w a s
                                                  of his removal was that 212(c)
          fundamentally unfair.
                                                  discretionary relief was not available to
8 U.S.C. § 1326(d).           These three         aliens in his situation, judicial review from
requirements are listed in the conjunctive,       his removal order was meaningless, even
meaning that all three must be met before         if technically available. Third, Torres


                                              8
argues that, even if avenues of meaningful              (C) Orders against criminal
review were available to him, he was                    aliens
denied review because, by not being
                                                        Notwithstanding any other
informed that discretionary 212(c) relief
                                                        provision of law, no court
might be available to him, he was denied
                                                        shall have jurisdiction to
the opportunity to exercise considered
                                                        review any final order of
judgment in waiving his review rights.
                                                        removal against an alien
       With respect to Torres’s first                   who is removable by reason
contention, the Government does not                     of having committed a
contest that one of 8 U.S.C. §                          criminal offense covered in
1252(a)(2)(B) or (C) would have                         section 1182(a)(2) or
precluded Torres from seeking direct                    1227(a)(2)(A)(iii), (B), (C),
review of his removal order in the Fifth                or (D) of this title, or any
Circuit (where his removal proceedings                  offense covered by section
took place).                                            1227(a)(2)(A)(ii) of this
                                                        title for which both
      Those statutory provisions say:
                                                        predicate offenses are,
      (B) Denials of discretionary                      without regard to their date
      relief                                            of commission, otherwise
                                                        covered by section
      Notwithstanding any other
                                                        1227(a)(2)(A)(i) of this title.
      provision of law, no court
      shall have jurisdiction to                 Id. In short, the two provisions act in
      review–                                    concert to preclude direct judicial review
                                                 of most discretionary immigration
      (i) any judgment regarding
                                                 determinations of the Attorney General,
      the granting of relief under
                                                 and all immigration determinations with
      section 1182(h), 1182(i),
                                                 respect to aliens removable for having
      1229b, 1229c, or 1255 of
                                                 committed certain criminal offenses,
      this title, or
                                                 including controlled substance offenses.
      (ii) any other decision or                 See Bakhtriger v. Elwood, 360 F.3d 414,
      action of the Attorney                     419 (3d Cir. 2004).
      General the authority for
                                                        T h e G o v e r n ment argues,
      which is specified under this
                                                 nevertheless, that Torres had—and
      subchapter to be in the
                                                 waived—an absolute right to appeal his
      discretion of the Attorney
                                                 removal order to the BIA. Torres, for his
      General, other than the
                                                 part, argues that such an appeal would
      granting of relief under
                                                 have been futile in light of Soriano. 21 I.
      section 1158(a) of this title.
                                                 & N. Dec. at 518.


                                             9
       This difference of opinion is beside               any subsequent proceeding
the point. Even if BIA review had been                    in which the result of the
available, Mendoza-Lopez clearly                          deportation proceeding is
contemplates that “judicial review”                       used to establish an element
include review beyond the administrative                  of a criminal offense.
context. 481 U.S. at 837-39. Mendoza-
                                                   Id. (internal footnotes and citations
Lopez unambiguously differentiated
                                                   omitted, additional italics added).
between an alien’s administrative removal
                                                   Torres’s right to appeal to the BIA is,
proceeding on the one hand, and judicial
                                                   therefore, insufficient to establish that he
review on the other, stating:
                                                   was afforded meaningful judicial review.
       Our cases establish that
                                                          The Government contends
       where a determination made
                                                   alternatively that the availability to Torres
       in an administrative
                                                   of habeas corpus afforded him the
       proceeding is to play a
                                                   opportunity for judicial review required by
       critical r o l e i n th e
                                                   8 U.S.C. § 1326(d)(1).7 After all, the
       subsequent imposition of a
       criminal sanction, there
       must be some meaningful
                                                          7
       review of the administrative                         Torres disputes that habeas corpus
       proceeding. . . .             This          was actually available to him. At the time
       principle means at the very                 of Torres’s removal proceedings, a circuit
       least that where the defects                split was developing over whether
       in an administrative                        AEDPA and IIRIRA eliminated recourse
       p r o c e e d i n g f o r e c l o se        to habeas corpus for aliens removable for
       judicial review of that                     having been convicted of felonies. The
       proceeding, an alternative                  Supreme Court eventually resolved that
       means of obtaining judicial                 split, holding that AEDPA and IIRIRA did
       review must be made                         not eliminate a criminal alien deportee’s
       available before th e                       recourse to habeas corpus. See St. Cyr,
       administrative order may be                 533 U.S. at 314; Bakhtriger, 360 F.3d at
       used t o e s t ab lish                      419-20. But before St. Cyr, the Fifth
       conclusively an element of a                Circuit was among those Circuits holding
       criminal offense. . . .                     that AEDPA and IIRIRA eliminated
       Depriving an alien of the                   habeas corpus jurisdiction in so-called
       right to have the disposition               criminal alien removal cases. See Max-
       in a deportation hearing                    George v. Reno, 205 F.3d 194, 198 (5th
       reviewed in a judicial forum                Cir. 2000). Max-George, however, was
       requires, at a minimum, that                not decided until well after Torres’s
       review be made available in                 removal proceedings were completed. At
                                                   the time of Torres’s removal proceedings,

                                              10
Government argues, that is the path Enrico                     The District Court adopted an
St. Cyr employed in the eponymous                   eminently sensible reading of the statute.
Supreme Court case to obtain the very               See Roque-Espinoza, 338 F.3d at 729;
relief Torres now contends was denied to            Gonzalez-Roque, 301 F.3d at 49-50. As a
him. See St Cyr, 533 U.S. at 314. The               practical matter, the availability of habeas
District Court here accepted the                    r e l i e f w o u l d h a v e a d e q u a t e ly
Government’s reasoning, following a                 accommodated Torres’s interest in having
growing number of federal courts holding            his challenges—at least those made on
that the availability to an alien of habeas         s t atutory o r c o n s t it u t i o na l
corpus relief affords meaningful judicial           grounds—reviewed by a federal court.
review. See, e.g., Roque-Espinoza, 338
                                                           The difficulty with the District
F.3d at 729; United States v. Gonzalez-
                                                    Court’s approach, however, is linguistic.
Roque, 301 F.3d 39, 49-50 (2d Cir.
                                                    For the term “judicial review” as used in
2002).8
                                                    another part of the INA has now been
                                                    interpreted by the Supreme Court to be
the closest Fifth Circuit precedent held            limited to direct review, and to exclude
that the transitional rules of AEDPA and            habeas review. See St. Cyr, 533 U.S. at
IIRIRA did not eliminate all habeas                 311-12.9 In St. Cyr, the court confronted
review for criminal aliens. See Nguyen v.
INS, 117 F.3d 206, 207 (5th Cir. 1997);
Williams v. INS, 114 F.3d 82, 84 (5th Cir.          the alien’s challenge to his underlying
1997). To be sure, Williams held that               removal order was likely to fail
AEDPA and IIRIRA precluded review of                because—having actually taken an appeal
claims that 212(c) relief should have been          to the BIA but then opting not to pursue
granted as a matter of discretion. 114 F.3d         his argument farther—he had not been
at 84. But no Fifth Circuit case held that          denied meaningful judicial review. In our
habeas review was unavailable to assert a           discussion, we noted that the alien
constitutional or statutory challenge to the        abandoned habeas corpus, among other
retroactive elimination by AEDPA and                avenues for seeking relief. We did not
IIRIRA of 212(c) relief. As such, at the            hold, however, that the availability of
time of his removal, Torres had the right           habeas corpus meant that Fellows had
to petition the Fifth Circuit federal courts        been afforded “meaningful judicial
for a writ of habeas corpus.                        review” or even that habeas corpus was
                                                    judicial review. See id. at 84-85.
       8
          The District Court based its
                                                           9
reasoning, in part, on an unpublished                        Although section 1252 uses both
decision of this Court. See United States           the terms “judicial review” and
v. Fellows, 50 Fed. Appx. 82, 83 (3d Cir.           “jurisdiction to review” to refer to court
Oct. 29, 2002) (not precedential). To be            review, the St. Cyr Court treated them as
sure, in Fellows we noted, in dictum, that          synonymous and so will we. See 533 U.S.

                                               11
8 U.S.C. § 1252, several provisions of               legislative history); United States v.
which literally proscribed “judicial                 Lopez-Vazquez, 227 F.3d 476, 484 n.13
review” of the removal proceedings of                (5th Cir. 2000); United States v. Estrada-
aliens convicted of certain crimes. At               Torres, 179 F.3d 776, 780 (9th Cir. 1999)
least in part to avoid invalidating that             overruled on other grounds by United
provision on constitutional grounds, see             States v. Rivera-Sanchez, 247 F.3d 905,
533 U.S. at 299-300, the Court held that             909 (9th Cir. 2001). Mendoza-Lopez
the “judicial review” precluded in section           expressly observed that “any alien held in
1252 of the statute meant only direct                custody pursuant to an order of
review and not habeas review.                        deportation may obtain judicial review of
                                                     that order in a habeas corpus proceeding.”
       If that is the definition of “judicial
                                                     481 U.S. at 836-37.              Where a
review” in 8 U.S.C. § 1252, does it follow
                                                     congressional provision implements a
that the identical term in 8 U.S.C. §
                                                     Supreme Court ruling, there is a
1326(d) must mean the same thing, so that
                                                     compelling reason to adopt an operative
the availability to an alien of habeas
                                                     definition used in that ruling. See Slack v.
review at the time of removal is not the
                                                     McDaniel, 529 U.S. 473, 481 (2000).
sort of “judicial review” that bars
collateral attack on the alien’s removal                    Furthermore, realism compels us to
order in an action for criminal re-entry?            acknowledge that when Congress used the
                                                     term “judicial review” in enacting section
        There is something to be said for
                                                     1326(d), it may not have anticipated that
reading the terms differently in these two
                                                     five years later the Supreme Court would
parts of the same statute. See Atl.
                                                     narrowly construe the same phrase in the
Cleaners & Dyers v. United States, 286
                                                     context of section 1252 to exclude habeas
U.S. 427, 433 (1932). As a matter of
                                                     review. See St. Cyr, 533 U.S. at 330
reality, section 1326(d), which sets forth
                                                     (Scalia, J., dissenting). Thus, we cannot
the conditions under which an alien may
                                                     confidently assert that Congress
collaterally attack his removal order, was
                                                     “intended” that the term “judicial review”
a codification of the Supreme Court’s
                                                     be defined identically in both sections.
decision in Mendoza-Lopez. See United
States v. Grey, 87 Fed. Appx. 254, 256                      In fact, the St. Cyr Court’s
(3d Cir. 2004) (not precedential); United            interpretation of the phrase “judicial
States v. Copeland, __ F.3d __, 2004 WL              review” in section 1252 was strongly
1588088, at *4 (2d Cir. July 16, 2004);              affected by the canon of constitutional
United States v. Wilson, 316 F.3d at 515             avoidance, see 533 U.S. at 300, 305,
n.1 (Motz, J., concurring) (citing to                which impels a court to narrow statutory
                                                     language when necessary to confronting a
                                                     statutory clash with the constitution. See,
at 311. But see 533 U.S. at 330 (Scalia, J.,         e.g., Crowell v. Benson, 285 U.S. 22, 62
dissenting).                                         (1932); United States v. Bishop, 66 F.3d

                                                12
569, 587 (3d Cir. 1996). The Court                   518, at 119 (1996), reprinted in 1996
believed that if the preclusion of judicial          U.S.C.C.A.N. 924, 952.
review under section 1252 were read
                                                               At any rate, we need not
broadly to include preclusion of habeas
                                                     conclusively resolve what suffices to
review, the resulting bar might amount to
                                                     constitute judicial review under section
an unconstitutional suspension of habeas
                                                     1326(d). Torres’s collateral challenge
corpus. See St. Cyr, 533 U.S. at 314. We
                                                     suffers from a more obvious defect—he
need not import St. Cyr’s narrow
                                                     cannot establish that his removal order
interpretation of “judicial review” into
                                                     was “fundamentally unfair” as required by
another provision in the statute where
                                                     section 1326(d)(3). We will therefore
there is no such issue of constitutional
                                                     assume, arguendo, that Torres was denied
avoidance.
                                                     a meaningful opportunity for judicial
        On the other hand, we acknowledge            review.
the argument in favor of construing the
                                                                         B.
term “judicial review” in section 1326(d)
as we construe the same term in section                     Of the seven published cases
1252 after St. Cyr. As a general canon of            factually similar to this one decided by the
construction, the same words in the same             Courts of Appeals in the wake of St. Cyr,
statute are interpreted in the same way.             most have been decided on the ground that
See C.I.R. v. Ridgeway’s Estate, 291 F.2d            the alien failed to establish that the
257, 259 (3d Cir. 1961). And it is not               underlying removal proceeding was
nonsensical to interpret section 1326(d) as          fundamentally unfair.11 Compare Aguire-
requiring direct judicial review—and not             Tello, 353 F.3d at 1207-10, and Wilson,
merely habeas review—to foreclose a later            316 F.3d at 509-11, and Mendoza-Mata,
collateral attack on the original removal.           322 F.3d at 832, and Lopez-Ortiz, 313
For, as we have held, the scope of direct            F.3d at 231, and United States v. Leon-
review is broader than the scope of habeas           Paz, 340 F.3d 1003, 1007 (9th Cir. 2003)
review. See Bakhtriger, 360 F.3d at 424.             (remanding for findings on whether alien
Congress could have intended that
collateral review be foreclosed only by the
fuller form of prior court review afforded           developments more than five years later in
by direct appeal, although frankly we see            St. Cyr and its progeny.
no evidence that Congress had this
                                                            11
distinction in view when it enacted section                  Mendoza-Lopez does not compel
1326(d).10 See H.R. Conf. Rep. No. 104-              a contrary result. There, based on the
                                                     Government’s concession, the Supreme
                                                     Court assumed that the proceeding was
       10
         This also strains the literal notion        fundamentally unfair. 481 U.S. at 839-40
of legislative intent pretty far, since it           & n.17. We need not make the same
assumes that, in 1996, Congress foresaw              assumption here.

                                                13
had established prejudice and, therefore,           question of procedure.”13 Lopez-Ortiz,
fundamental unfairness), with Ubaldo-               313 F.3d at 230.
Figueroa, 364 F.3d at 1051 (dismissing
                                                           As the Supreme Court and this
indictment and holding that alien had
                                                    court have repeatedly observed, removal
successfully challenged underlying
                                                    proceedings are civil in nature. See
removal order),12 and Roque-Espinoza,
                                                    Harisaides v. Shaughnessy, 342 U.S. 580,
338 F.3d at 728 (upholding conviction
                                                    594 (1952); Perez v. Elwood, 294 F.3d
because alien was afforded meaningful
                                                    552, 557 (3d Cir. 2002). Aliens in
judicial review).
                                                    removal proceedings are entitled to due
       This Court has not yet had occasion          process, though the procedural protections
to construe the term “fundamental[]                 accorded to them in that context measure
unfair[ness]” as it is used in section              less than the panoply available to a
1326(d)(3).       We must determine,                criminal defendant. See Dia v. Ashcroft,
therefore, what must be shown in order to           353 F.3d 228, 238-39 (3d Cir. 2003) (en
establish that a removal proceeding was
fundamentally unfair within the meaning
                                                          13
of 8 U.S.C. § 1326(d)(3).                                       Also, every Circuit to have
                                                    considered the requirements for a
       In measuring whether an alien’s              successful collateral challenge to a
removal proceeding was “fundamentally               removal order has held that the alien must
unfair,” most circuits ask whether the alien        make some showing that prejudice has
was denied due process. See Ubaldo-                 resulted—i.e., whether the alien could
Figueroa, 364 F.3d at 1047-48; Aguire-              realistically have expected that the
Tello, 353 F.3d at 1204; Wilson, 316 F.3d           Attorney General would exercise
at 510; Lopez-Ortiz, 313 F.3d at 230-31;            discretion to give the alien relief from
Fernandez-Antonia, 278 F.3d at 159. We              removal. See Aguire-Tello, 353 F.3d at
agree that “[f]undamental fairness is a             1207-10; Leon-Paz, 340 F.3d at 1005;
                                                    Wilson, 316 F.3d at 510; Mendoza-Mata,
                                                    322 F.3d at 832; Fernandez-Antonia, 278
                                                    F.3d at 158 (collecting cases); United
                                                    States v. Loaisiga, 104 F.3d 484, 487 (1st
       12
         But see Alvarenga-Villalobos v.            Cir. 1997); United States v. Perez-Ponce,
Ashcroft, 271 F.3d 1169, 1172-73 (9th               62 F.3d 1120, 1122 (8th Cir. 1995);
Cir. 2001) (dismissing habeas attack on             United States v. Espinoza-Farlo, 34 F.3d
removal order underlying reinstatement of           469, 471 (7th Cir. 1994); United States v.
removal, questioning whether the Ninth              Holland, 876 F.2d 1533, 1536 (11th Cir.
Circuit’s decision consonant with St. Cyr           1989). Since we find no fundamental
operated retroactively, and concluding that         unfairness, we have no reason to reach the
alien was afforded meaningful judicial              issue of whether section 1326(d) requires
review).                                            a showing of prejudice.

                                               14
banc); Lopez-Ortiz, 313 F.3d at 230.                criminal proceedings, for example, the
“The fundamental requirement of due                 Supreme Court and this Court have
process is the opportunity to be heard at a         repeatedly held that “mere error[s] of state
meaningful time and in a meaningful                 law [do not amount to] a denial of due
manner.” Mathews v. Eldridge, 424 U.S.              process.” Engle v. Isaac, 456 U.S. 107,
319, 333 (1976) (citation and internal              121 n.21 (1982) (internal quotations
quotation marks omitted); see also Dia,             omitted); Smith v. Zimmerman, 768 F.2d
353 F.3d at 239. More specifically, in the          69, 73-74 (3d Cir. 1985). Similarly, while
removal context, “due process requires              we have reversed verdicts due to legal
that an alien who faces [removal] be                error that occurred at a civil trial, it is not
provided (1) notice of the charges against          generally part of our conclusion that the
him, (2) a hearing before an executive or           error rose to the level of a violation of due
administrative tribunal, and (3) a fair             process. See, e.g., Ambrose v. Township
opportunity to be heard.” Lopez-Ortiz,              of Robinson, Pa., 303 F.3d 488 (2002)
313 F.3d at 230 (citing Kwong Hai Chew              (failure to grant judgment as a matter of
v. Colding, 344 U.S. 590, 597-98 (1953)).           law); Becker v. ARCO Chem. Co., 207
Torres does not contend he was denied               F.3d 176 (3d Cir. 2000) (improper
any of these.                                       admission of evidence); Bohler-
                                                    Uddenholm Am., Inc. v. Ellwood Group.,
        Rather, Torres contends that his
                                                    Inc., 247 F.3d 79, 100-02 (3d Cir. 2001)
removal proceeding was rendered
                                                    (jury instruction).
fundamentally unfair by the IJ’s erroneous
conclusion—in accordance with the then-                    In fairness to Torres, he challenges
reigning interpretation of the law—that             not just the IJ’s legal conclusion, but also
Torres was not eligible for discretionary           the consequences that flowed from it. By
relief. Torres essentially argues that the          definition, when the IJ concluded that
IJ’s error of law rose to the level of a due        Torres was not eligible for 212(c) relief,
process violation. We disagree.                     he did not consider Torres for that relief.
                                                    Torres alleges fundamental unfairness
       Without more, an error of law will
                                                    because he maintains that he had a due
ordinarily not rise to the level of a due
                                                    process liberty interest in being considered
process violation.14 In the context of
                                                    for 212(c) relief. We disagree.
federal habeas corpus review of state
                                                            At least three circuits have held
                                                    that, because discretionary relief is
       14
          Indeed, the IJ’s understanding of         necessarily a matter of grace rather than of
the law was not erroneous at the time. We           right, aliens do not have a due process
are extremely reticent to treat as                  liberty interest in consideration for such
fundamentally unfair an administrative              relief. See Lopez-Ortiz, 313 F.3d at 231;
official’s failure to predict that binding          Oguejiofor v. Attorney General, 277 F.3d
law will change.                                    1305, 1309 (11th Cir. 2002); Smith v.

                                               15
Ashcroft, 295 F.3d 425, 429-30 (4th Cir.             may have no right to the favorable
2002). The possibility that the IJ would             exercise of parole while at the same time
have granted 212(c) relief in Torres’s case          in some circumstances he may have a due
was speculative at best. 8 U.S.C. § 1182             process interest in consideration for
did not set out criteria for determining             parole. See Greenholtz v. Inmates of Neb.
whether relief from removal was                      Penal & Corr. Complex, 442 U.S. 1, 7
appropriate in a given case. Rather, it left         (1979); Roque Espinoza, 338 F.3d at 729-
to the IJ’s sole discretion whether to grant         30. On closer inspection, however, the
that relief. Section 1182 was, therefore,            parole cases actually refute any contention
entirely a “piece of legislative grace, . . .        that Torres had a protectible interest in
convey[ing] no rights[ and] no status.”              being considered for discretionary relief.
Lopez-Ortiz, 313 F.3d at 231 (internal
                                                             In Greenholtz, the Supreme Court
quotations omitted). It was not the kind of
                                                     squarely held that there is no constitutional
statute that “create[d] a vested liberty or
                                                     right to parole. 442 U.S. at 7. The Court
property interest.” Smith, 295 F.3d at 429.
                                                     specifically held that the possibility of
Even if Torres had presented a most
                                                     early release “provide[d] no more than a
sympathetic and compelling case for
                                                     mere hope that the benefit will be
granting section 212(c) relief, nothing
                                                     obtained. . . . , a hope which is not
would have required the IJ to actually
                                                     protected by due process.” Id. at 11
grant that relief.
                                                     (internal citations omitted).         Where,
       To be sure, a meaningful                      however, a state creates a parole system
distinction may exist between the claim              that statutorily mandates release unless
that an alien has a due process interest in          specified conditions are met, a prisoner
being considered for available                       eligible for parole consideration may be
discretionary relief on the one hand, and            entitled to certain due process protections.
the very different claim that an alien has a         See id. at 12; Frey v. Fulcomer, 132 F.3d
due process interest in the favorable                916, 925 n.7 (3d Cir. 1997); Walker v.
exercise of that relief.15 Thus, Torres can          Prisoner Review Bd., 769 F.2d 396, 400
argue that, although he had no right to the          (7th Cir. 1985). As we stated in Frey,
favorable exercise of 212(c) relief, he              therefore,
retained a due process interest in being
                                                            the Greenholtz line of
considered for that relief. The contention
                                                            decisions stands for the
has some superficial support: A prisoner
                                                            proposition              that
                                                            state-created liberty interests
       15
           The Seventh Circuit has noted                    will be found when the state
this distinction, see Roque Espinoza, 338                   (1) establishes substantive
F.3d at 729-30, but no circuit has yet                      predicates to guide official
considered whether it has merit when                        decisionmaking, and (2)
applied to section 212(c).                                  uses explicit mandatory

                                                16
              language in its                       the parole statute at issue in Greenholtz,
              regulations directing                 section 212(c) sets forth no presumption in
              the decisionmaker to                  favor of relief. It speaks merely to the
              reach a particular                    Attorney General’s “discretion.” As the
              outcome if the                        Fifth Circuit appropriately observed in
              substantiv e                          Lopez-Ortiz, section 212(c) is a matter of
              predicates are                        “legislative grace.” 313 F.3d at 231
              present.                              (internal quotations omitted). Thus, a
                                                    careful reading of Greenholtz and its
Frey, 132 F.3d at 925 n.7.
                                                    progeny reinforces our view that the
       Section 212(c) uses no “explicit             denial of consideration here does not
mandatory language” that could create in            violate due process with regard to a
an alien any protectible expectation of             protectible liberty interest. We agree with
entitlement to relief. Instead, relief under        our sister circuits that have held no
section 212(c) falls squarely within what           fundamental unfairness in failing to
the Court in Greenholtz described as a              consider an alien for 212(c) relief.
“mere hope” category of relief.16 Unlike
                                                            Finally, although the IJ erroneously
                                                    concluded that Torres was ineligible to be
                                                    considered for 212(c) discretionary relief,
       16
         The language of section 212(c)             the IJ did inform Torres of the reasons for
stands in stark contrast to the statutory           the Government’s charge that Torres was
language that the Court in Greenholtz held          removable, did provide him an
created an expectation of relief, which
provided:
                                                            (c) His release would have
       “Whenever the Board of
                                                           a substantially adverse
       Parole considers the release
                                                           effect on institutional
       of a committed offender
                                                           discipline; or
       who is eligible for release
                                                           (d)     His      continued
       on parole, it shall order his
                                                           correctional treatment,
       release unless it is of the
                                                           medical care, or vocational
       opinion that his release
                                                           or other training in the
       should be deferred because:
                                                           facility will substantially
       (a) There is a substantial
                                                           enhance his capacity to lead
       risk that he will not conform
                                                           a law-abiding life when
       to the conditions of parole;
                                                           released at a later date.”
       (b) His release would
       depreciate the seriousness                   Greenholtz, 442 U.S. at 11 (quoting Neb.
       of his crime or promote                      Rev. Stat. § 83-1,114(1) (1976))
       disrespect for law;                          (emphasis added).

                                               17
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.
       Because Torres cannot establish
that his removal proceeding was
fundamentally unfair within the meaning
of 8 U.S.C. § 1326(d), his attempt to
challenge the removal order underlying his
conviction for illegal re-entry into the
United States fails.
                   IV.
       For the foregoing reasons, the
judgment of the District Court will be
affirmed.




                                             18
