United States v. Torres

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Precedential or Non-Precedential: Precedential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

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 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