                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1524

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

JOSE M ANUEL Z AMBRANO-R EYES,
                                              Defendant-Appellant.


            Appeal from the United States District Court
       for the Northern District of Illinois, Western Division.
            No. 11 CR 50046—Philip G. Reinhard, Judge.



     A RGUED F EBRUARY 15, 2013—D ECIDED JULY 29, 2013




 Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
  W OOD , Circuit Judge. Jose Manuel Zambrano-Reyes,
then a lawful permanent resident, was removed from
the United States on November 13, 2000. A decade later,
immigration agents discovered that he was back in
the country, and he was charged with illegal reentry.
8 U.S.C. § 1326. Zambrano pleaded guilty in Octo-
ber 2011, but on the eve of his February 2012 sentencing,
he moved to withdraw his plea. The reason he offered
2                                               No. 12-1524

for this eleventh-hour move was that the Supreme
Court’s recent decision in Judulang v. Holder, 132 S. Ct. 476
(2011), coupled with its earlier ruling in I.N.S. v. St. Cyr,
533 U.S. 289 (2001), provided a new basis for him to
mount a collateral attack on his original removal. The
illegal reentry statute authorizes such challenges, pro-
vided the alien can establish three points: “(1) [he] ex-
hausted any administrative remedies that may have
been available to seek relief against the order; (2) the
deportation proceedings . . . improperly deprived [him]
of the opportunity for judicial review; and (3) the entry
of the order was fundamentally unfair.” 8 U.S.C. § 1326(d).
The district court refused to permit the withdrawal of
Zambrano’s plea and sentenced him to 12 months and
one day. We affirm.


                              I
  Zambrano pleaded guilty in 1993 to two counts
of aggravated sexual abuse of a minor, an aggravated
felony that rendered him deportable, see 8 U.S.C.
§ 1227(a)(2)(A)(iii), and served four years of probation.
Until 1996, many permanent resident aliens facing de-
portation were entitled to apply for a discretionary
waiver, known as Section 212(c) relief. St. Cyr, 533 U.S.
at 295-97. There is no dispute that Zambrano, who
had been in the United States since 1979 and did not
serve any jail time for his felony offenses, would have
been eligible to apply for a Section 212(c) waiver had
his deportation order been entered before 1996. And
there is some reason to think that such discretionary
No. 12-1524                                                3

relief would have been granted: between 1989 and 1995,
immigration judges granted waivers to over 10,000
aliens, approving over 42% of all Section 212(c) applica-
tions filed. Julie K. Rannik, Comment: The Anti-Terrorism
and Effective Death Penalty Act of 1996: A Death Sentence
for the 212(c) Waiver, 28 U. M IAMI INTER-A M . L. R EV. 123,
137 n.80 (1996).
  Zambrano’s removal proceedings did not begin until
1998, however, and in the interim, Congress significantly
curtailed the availability of discretionary relief for
aliens facing removal (the new term for deportation). With
the passage of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), enacted on April 24, 1996,
Pub. L. No. 104-132, and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA),
enacted on September 30, 1996, Pub. L. No. 104-208,
Congress repealed Section 212(c) and replaced it with a
much narrower form of discretionary relief known as
“cancellation of removal.” See St. Cyr, 533 U.S. at 297.
Under the new regime, the Attorney General may
still cancel removal for certain lawful permanent
residents, but not for those convicted of aggravated
felonies. 8 U.S.C. § 1229b(a)(3).
  Following the passage of AEDPA and IIRIRA, it was
unclear whether these amendments applied retroactively
to bar the possibility of Section 212(c) relief for aliens
who committed deportable offenses under the pre-1996
statutory scheme. The Attorney General adopted the
position that AEDPA, and to a small degree IIRIRA,
eliminated the Attorney General’s discretionary power
4                                               No. 12-1524

to grant Section 212(c) waivers altogether, regardless of
when the alien’s criminal wrongdoing occurred. See
In re Soriano, 21 I. & N. Dec. 516 (Op. Atty Gen. Feb. 21,
1997). In 2001, however, the Supreme Court held other-
wise. At least for persons “whose convictions were ob-
tained through plea agreements and who, notwith-
standing those convictions, would have been eligible for
§ 212(c) relief at the time of their plea under the law then
in effect,” Section 212(c) relief remains available. St.
Cyr, 533 U.S. at 326.
  Despite the promise of St. Cyr, aliens facing removal
for certain criminal offenses continued to encounter
obstacles when seeking discretionary relief. One reason
for this was an odd quirk in the way the Board of Im-
migration Appeals evaluated applications for Section
212(c) relief. Although we have spoken thus far of
Section 212(c) as a form of relief from deportation of an
alien already in the country, by its terms, the provision
only applied to aliens facing exclusion from entry. See
Judulang, 132 S. Ct. at 479-82. This created some “peculiar
asymmetr[ies],” since “[d]eportable aliens who had
traveled abroad and returned could receive § 212(c)
relief, while those who had never left could not.” Id. at
480. The Board resolved this problem by adopting
the policy that Section 212(c) gave the Attorney General
the authority to grant discretionary relief to aliens
facing exclusion and deportation alike. Id. at 480; see
Matter of S—, 6 I. & N. Dec. 392, 394-96 (BIA 1954); Matter
of Silva, 16 I. & N. Dec. 26 (BIA 1976). Not every
alien facing deportation was automatically eligible
for a waiver, however, since the list of grounds that
No. 12-1524                                               5

rendered an alien excludable, see § 1182(a), was not
perfectly congruent with the list of grounds that rendered
an alien deportable, see § 1227(a). To determine whether
Section 212(c) relief might be available in particular
deportation proceedings, some form of comparison
between the bases for deportation and exclusion was
necessary.
   The Board vacillated between two ways of making
this comparison. One approach, perhaps the more intu-
itive, was to consider how the alien facing deportation
would fare in an exclusion proceeding. Judulang, 132 S. Ct.
at 481. If the specific offense that rendered the
alien deportable fell within a statutory ground for ex-
clusion, and no other bars would have applied in the
exclusion context, that person could apply for a
Section 212(c) waiver. Id. (citing Matter of Tanori, 15 I. &
N. Dec. 566, 567-68 (1976)). The alternative approach,
known as the “comparable-grounds” rule, undertook a
comparison of the more general grounds for exclusion
and removal. Only if the charged deportation ground
consisted of a set of offenses “substantially equivalent”
to the set of offenses comprising a particular exclusion
ground could the alien be eligible for Section 212(c)
relief. This result obtained even if the particular offense
that made the alien deportable would also have made
the alien excludable (and eligible for Section 212(c) relief
in that context). The Board “definitively adopted” the
“comparable-grounds” rule in 2005. Id.; In re Blake, 23
I. & N. Dec. 722 (BIA 2005).
  To illustrate the difference between these two ap-
proaches, the Judulang Court posited a defendant
6                                                No. 12-1524

convicted of first-degree sexual abuse of a child, a par-
ticularly fortuitous hypothetical for our purposes. Id. at
482. Like Zambrano, this man could face deportation
on the ground that he committed an aggravated
felony involving sexual abuse of a minor. 8 U.S.C.
§ 1101(a)(43)(A). The conviction would also make him
excludable, but on a different basis: the offense would
qualify, along with many others, as a “crime involving
moral turpitude.” 8 U.S.C. § 1182(a)(2)(A). Applying
the first approach, the same person would be eligible for
a Section 212(c) waiver in the deportation context,
because someone convicted of the same sexual abuse
crime would be eligible to seek such relief in the exclu-
sion context. The comparable-grounds rule produces
a different result because the “moral turpitude”
exclusion ground “addresses a distinctly different and
much broader category of offenses” than the “’aggravated
felony’ involving ‘sexual abuse of a minor’” deportation
ground. Judulang, 132 S. Ct. at 482 (quoting Blake, 23 I. & N.
Dec. at 728). The divergence is fatal: using “comparable-
grounds,” an alien like Zambrano would have been
categorically barred from seeking discretionary relief
when facing deportation, not because his aggravated
felony was particularly grievous, but because of the
coincidental breadth of the corresponding exclusion
ground. In Judulang, the Court held that this ap-
proach, which hinges eligibility for relief “on the
chance correspondence between statutory categories
[rather than] the alien’s fitness to reside in this country,”
was arbitrary and capricious. Id. at 484.
No. 12-1524                                               7

                             II
   In moving to withdraw his guilty plea, Zambrano
argued that he met the criteria for a collateral attack on
the underlying removal order that provided the
predicate for his charge of unlawful reentry. See 8 U.S.C.
§ 1326(d). His alleged ability to set that order aside, he
asserted, constituted a “fair and just reason[] for
requesting the withdrawal” of his plea. FED. R. C RIM. P.
11(d)(2)(B). The district court was willing to accept
that Zambrano had exhausted his administrative
remedies, but it concluded that he could not show
either that the deportation proceedings improperly de-
prived him of the opportunity for judicial review or that
the entry of the order was fundamentally unfair. It
is necessary for us to address only the latter two points.


                             A
  We look first at the question whether Zambrano was
deprived of the opportunity to seek judicial review
from his 1998 order of removal. He concedes that he
was informed of his right to seek judicial review of the
Board’s decision, and that at the time this court had
held that “direct review remains available . . . for aliens
wishing to challenge their deportation on constitutional
grounds.” LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th
Cir. 1998). He argues that, as a practical matter, he never-
theless was deprived of the opportunity for judicial
review for two reasons: (1) the scope of judicial review
was limited at the time, because the Seventh Circuit
had held that AEDPA eliminated habeas corpus relief for
8                                               No. 12-1524

aliens like Zambrano and that direct review was
available only for constitutional challenges; and (2) the
issue that he would have raised on direct review was
decided against him (he believes) in earlier Seventh
Circuit cases.
  There are two problems with Zambrano’s position.
First, Zambrano’s first point is similar to the one we
rejected in United States v. Roque-Espinoza, where we
explained that, despite the uncertainty regarding the
availability of habeas corpus relief at the time of his
removal, “[n]othing prevented [Roque-Espinoza] from
playing the role of St. Cyr” and at least attempting to
petition for review of his purported ineligibility for
Section 212(c) relief. 338 F.3d 724, 729 (7th Cir. 2003).
“The fact that [the defendant] chose not to make the
attempt does not mean that he was deprived of all
avenues of judicial review of his removal order.” Id.
Second, and more importantly, Zambrano misappre-
hends the state of the law in this circuit at the time of
his removal. On August 23, 2000, five weeks before
the Board issued its decision in Zambrano’s removal
proceedings, we held that Section 440(d) of AEDPA,
which eliminated aggravated felons’ eligibility for
Section 212(c) relief, “cannot be applied retroactively to
bar [an] alien from receiving a discretionary waiver
under INA § 212(c)” where the alien “pled guilty to
an aggravated felony before the enactment of AEDPA
and relied, at least in part, on the availability of § 212(c)
relief in making his decision to so plead.” Jideonwo v.
I.N.S., 224 F.3d 692, 700 (7th Cir. 2000). The Supreme
Court cited this opinion approvingly eleven months
No. 12-1524                                               9

later when it decided St. Cyr, 533 U.S. at 323 (“The poten-
tial for unfairness in the retroactive application of
IIRIRA § 304(b) to people like Jideonwo and St. Cyr
is significant and manifest.”).
  The failure of Zambrano’s attorney to recognize the
relevance of Jideonwo to Zambrano’s then-pending case
is unsettling, and this oversight would have been a
strong argument for Zambrano to raise in a motion
to reopen. Zambrano, however, has not raised any ar-
gument that his failure to seek judicial review should
be excused for reasons of ineffective assistance of counsel,
and given the stringent showing that the Board and
we require for that argument, we can understand why.
Given Jideonwo, it cannot be said that “the deportation
proceedings at which [Zambrano’s] order was issued
improperly deprived the alien of the opportunity
for judicial review.” 8 U.S.C. § 1326(d).


                             B
  Zambrano’s remaining argument is that the Board’s
erroneous (in hindsight) determination that he was ineligi-
ble for discretionary relief made the entry of his
removal order “fundamentally unfair” within the
meaning of Section 1326(d)(3). Zambrano emphasizes
that his argument is not “that discretion was exercised
in a manner not to his liking,” but rather that he “was
wrongfully deprived of having the opportunity for
the proper official to determine whether he should be
allowed to remain in this country.” See St. Cyr, 533 U.S.
at 289 (“[T]he fact that § 212(c) relief is discretionary
10                                              No. 12-1524

does not affect the propriety of our conclusion. There is
a clear difference, for the purposes of retroactivity
analysis, between facing possible deportation and facing
certain deportation. . . . Because respondent, and other
aliens like him, almost certainly relied upon that
likelihood in deciding whether to forgo their right to a
trial, the elimination of any possibility of § 212(c) relief
by IIRIRA has an obvious and severe retroactive ef-
fect.”). The term “fundamentally unfair” is not defined in
Section 1326(d), nor has the Supreme Court provided a
comprehensive list of the procedural errors that might
render an underlying removal fundamentally unfair.
See United States v. Mendoza-Lopez, 481 U.S. 828, 839 n.17
(1987).
  Zambrano acknowledges that this court has held
that “due process does not entitle an alien ‘to be informed
of eligibility for—or to be considered for—discretionary
relief.’” United States v. De Horta Garcia, 519 F.3d 658,
662 (7th Cir. 2008) (quoting United States v. Santiago-Ochoa,
447 F.3d 1015, 1019-20 (7th Cir. 2006)). He urges us to
revisit this holding, however, relying heavily on the
concerns articulated in Judge Rovner’s concurrence in
De Horta Garcia. Id. at 662 (Rovner, J., concurring). As
Judge Rovner noted, our position regarding eligibility
for Section 212(c) relief and Section 1326(d)’s “funda-
mental fairness” requirement is at odds with that of
the Second and Ninth Circuits. United States v. Copeland,
376 F.3d 61, 70-73 (2d Cir. 2004); United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). There is also
academic support for the position that the erroneous
failure to consider an alien for Section 212(c) relief, or
No. 12-1524                                                 11

to advise an unrepresented alien of his eligibility for
such relief, is sufficiently “unfair” to satisfy Section
1326(d)(3) in a later reentry prosecution. See Anthony
Distinti, Gone but Not Forgotten: How Section 212(c) Relief
Continues to Divide Courts Presiding over Indictments
for Illegal Reentry, 74 F ORDHAM L. R EV. 2809 (2006);
Brent S. Wible, The Strange Afterlife of Section 212(c) Relief,
19 G EO. IMMIGR. L.J. 455 (2005). We also note that in
Mendoza-Lopez itself, the decision that Congress sought
to codify when it enacted Section 1326(d), the procedural
error that undermined the validity of the earlier deporta-
tion proceedings was the immigration judge’s failure
“to explain adequately [the aliens’] right to suspension
of deportation,” another form of since-repealed discre-
tionary relief, and to advise the aliens of their right
to appeal to the Board. 481 U.S. 828, 839-40. The United
States did not contest the lower courts’ determination
on this issue in Mendoza-Lopez, however, and so the
Court did not explore the meaning of “fundamental
unfairness” in this context in any great depth. Id.
  As in De Horta Garcia, however, we leave this issue to
another day. Because we hold that Zambrano was not
deprived of an opportunity for judicial review, we have
no occasion to explore the meaning of “fundamental
unfairness” for purposes of Section 1326(d) in this case.


                              III
  We close with a few additional thoughts about
Judulang, which, as we have explained, ultimately has no
12                                              No. 12-1524

bearing on our resolution of Zambrano’s case. Judulang
dealt with the Board’s endorsement of the comparable-
grounds rule for determining whether aliens remained
eligible for Section 212(c) relief in the years following St.
Cyr. Although the Board apparently invoked the rule
intermittently before 1996, see Judulang, 132 S. Ct. at 488
(“[T]he BIA has repeatedly vacillated in its method for
applying § 212(c) to deportable aliens.”), it could not
have been in place between 1996 and 2001, since at the
time the Board regarded all aggravated felons as
ineligible for Section 212(c) relief, regardless of whether
the ground supporting their deportation had a “compara-
ble [exclusion] ground.”
  Judulang would have had a significant effect on
Zambrano’s case were he facing removal for the first
time today, since the Court’s holding eliminated an
alternative basis for finding Zambrano ineligible for
discretionary relief. This may explain why Zambrano
waited so long to seek to reopen his earlier removal
proceedings. But Judulang does not alter our analysis of
whether, at the time of Zambrano’s removal, the Board
erred in its interpretation of federal immigration law: we
have already established that it did, and that Zambrano
should have been considered for Section 212(c) relief.
Judulang does not make the Board “more wrong” than it
was already. On these facts, however, the Board’s error is
not enough to excuse Zambrano from criminal liability
for his illegal reentry.
 This takes us back to the core of Zambrano’s argu-
ment. If he could have established a valid illegal reentry
No. 12-1524                                         13

defense under St. Cyr, he would have had a stronger
argument for withdrawing his guilty plea, but Judulang
is of no help to him there. As matters stand, he cannot
establish a valid legal defense to his illegal reentry
charge, and so the district court did not err—much less
abuse its discretion—when it rejected the motion.
Its judgment is therefore A FFIRMED.




                        7-29-13
