dissenting:
The majority correctly identifies the facts relevant to El Shami’s motion to dismiss Count One of the indictment, which tend to show that El Shami did not receive notice of his deportation proceeding. But the majority errs in applying to these facts the rules for collateral attack on a deportation order under 8 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Because El Shami did not establish a reasonable probability that he would not have been deported but for the lack of notice, I respectfully dissent.
In United States v. Wilson, 316 F.3d 506 (4th Cir.2003), we held that to show an order is “fundamentally unfair” under section 1326(d)(3), a deported alien must show prejudice. Id. at 509. As the majority acknowledges, this requires a showing that there was a “reasonable likelihood” that the alien would not have been deported but for the defect in the deportation proceeding. Id. at 511. In Wilson, the alien’s counsel had claimed a “fifty-fifty” chance of a different outcome, which the district court deemed insufficient to establish prejudice under the governing standard. Id. We concluded that Wilson’s actual chance of obtaining a reversal was lower than fifty-fifty and that he had “demonstrated none of the ‘unusual or outstanding favorable equities’ ” necessary to suggest “a favorable exercise of discretion under section 212(c).” We thus affirmed the deportation. Id. at 514.
Like Wilson, El Shami did not demonstrate “unusual or outstanding equities.” The majority identifies, as evidence in his favor, that El Shami had lived in the United States for thirteen years; has a wife and son, both dependent on him; owned a small business in New Jersey and paid income taxes on its revenues; and complied with the conditions of his release on immigration bond. Op. 665-66. In my view, these are only ordinary factors. Indeed, Wilson had lived in the United States for longer, over seventeen years, and had served for nearly all of that time in the United States Marine Corps, from which he had a bad conduct discharge. 316 F.3d at 508. Presumably this service involved paying income taxes, not to mention suffering the other hardships associated with military life. That leaves as the principal distinguishing factor El Shami’s dependent wife and son; but this ordinary qualification for relief should not covert El *667Shami’s case into one of unusual hardship. See, e.g., United States v. Muro-Inclan, 249 F.3d 1180, 1185-86 (9th Cir.2001) noting that family hardship is nothing more than a “common result” of deportation and explaining that “a finding of plausibility on this showing would require a finding of plausibility, and therefore prejudice, in almost every case.” And, as with tax compliance, instead of lauding El Shami for complying with the conditions of his release under bond, the law demands no less.
While the majority mentions, it under-weighs the factors working against El Sha-mi: his credit-card fraud and possession of false social security documents, his illegal reentry after deportation, his criminal record, and certain evidence of bad character. Op. 665. In particular, the majority’s passing reference to El Shami’s “two serious felony convictions” understates the equities. The New Jersey statutes under which El Shami was convicted give a clue as to the nature of the crimes initially rendering him deportable: New Jersey Code section 2C:14-3b prohibits criminal sexual contact; and section 2C:17-la(2) prohibits arson with the purpose of destroying the building or structure of another. The pre-sentence report indicates that El Shami was convicted of “criminally intentionally touching the breast” of the victim, “with the intention of degrading her.” El Shami was also charged with stealing her luggage. The details of the arson are not contained in the report. In addition to these convictions, El Shami had been convicted of “arson assault,” simple assault, third-degree theft by deception, unlawful possession of a weapon, and soliciting transportation for hire and trespassing. Docket No. 82 at 13-14.
El Shami’s sex crime, though not a rape, see Gouveia v. I.N.S., 980 F.2d 814, 818-19 (1st Cir.1992), is undoubtedly most serious and the burning of another’s property is more than enough, in my view, to outweigh any credit El Shami is due for running two businesses and paying taxes. His combined crimes, I suggest, impose a higher hurdle. In sum, though I appreciate the difficulty involved in speculating as to what an immigration judge would have done when confronted with such evidence, I cannot agree that it is “reasonably probable” that the immigration judge would have excused El Shami from deportation in these circumstances.1
It should be noted that an immigration judge sitting in 1993 would have had scant, if any, evidence of rehabilitation. In contrast, we have the benefit of what has since transpired. For example, within 17 months of his deportation El Shami had returned to the United States and had been convicted of a drug crime. More relevant to the crimes at issue here, in 1996 El Shami escaped punishment for using the identification of another person, but in early 1999 he pleaded guilty of using the same person’s identification to fraudulently purchase jewelry. And El Shami’s identity thievery was just beginning: in June 2000 he pleaded guilty to two counts of financial identity fraud using two additional names, Docket No. 82 at 17-18; and in December 2000 he pleaded guilty to 59 counts of obtaining property by false pretense using over 30 different persons’ *668names and other information concerning them, id. at 18-25, including the names “Jonathan Harris” and “Matthew Harris,” which names El Shami nevertheless continued to use to commit the crimes at issue in these proceedings. On the basis of this record, the district court, in sentencing in this very case, described El Shami to be “a hard[-]core recidivist.” Docket No. 84 at 7. Our hypothesizing about what might have occurred in 1994 should not ignore these facts.
El Shami’s crimes, though perhaps not as serious as his sex crime and arson, are hardly victimless. Indeed, El Shami was ordered to pay restitution to nine businesses of over $42,000. More importantly, his latest scheme — executed over nearly three weeks from May 5, 2003 until he was arrested on May 25 — involved personal information with respect to four people. A victim-impact statement in the record describes El Shami’s use of another’s Social Security number as a “13 month nightmare” which, among other impacts, prevented that victim from refinancing a mortgage. Docket No. 72. Nor did the fraudulent documents fall into his lap. As in his previous crimes, El Shami possessed credit cards, social security cards, two resident alien cards, checks, and driver’s licenses in various names not his own. In short, the facts of the admitted crimes prove El Shami’s continuing disregard for other people, to say nothing of the law.2
*669Accordingly, I would affirm the validity of El Shami’s deportation and reach the other arguments raised in this appeal.
. The majority's reliance, op. 666, on the Supreme Court’s observation that over half of all section 212(c) motions were granted during this period does not speak to the equities of this case. See United States v. Aguirre-Tello, 353 F.3d 1199, 1210 (10th Cir.2004) (en banc) (rejecting identical argument: "Without any indication that any of those successful applicants were similarly situated to [the alien], the conclusion that he had at least a 50% chance of receiving a discretionary waiver is pure speculation, if not actually misleading.”).
. I also question, and properly to be examined on remand, whether El Shami may be excused from the statutory requirement of exhaustion in a collateral attack. See 8 U.S.C. § 1326(d)(1). El Shami admits having received notice of the deportation order, at the latest, around July 10 or 11, 1994. El Shami immediately went to his lawyer, who said he would take care of it, but it appears that the lawyer did nothing, perhaps because he was ill. (JA 113, 115, 119.)
Under the then-applicable regulations, El Shami had "ten (10) calendar days after service of the decision” to appeal to the Board of Immigration Appeals, thirteen days if service was by mail, 8 C.F.R. 3.38(b) (1994), service being defined as sending a written decision to "the parties by first class mail to the most recent address contained in the Record of Proceeding or by personal service," 8 C.F.R. 3.37(a) (1994). It appears that El Shami's counsel believed that appeal would have required "exceptional circumstances” under 8 U.S.C. § 1252b(c)(3)(A), which appeal would have been time barred because 180 days had passed since the October 28, 1993 deportation order issued. But that statute concerns motions for rescission, and section 1105a, cited by the majority, op. 664, n. 7, governed petitions for review in the Courts of Appeals. For administrative purposes, because there is no proof that the deportation order or notification thereof was served on El Shami until July 1994, and indeed all evidence suggests otherwise, op. 662, the Board would have had jurisdiction to consider an otherwise belated appeal in July 1994. See Quedraogo v. I.N.S., 864 F.2d 376, 378 (5th Cir.1989) ("Because the INS cannot establish when it mailed the Board’s decision, we decline to dismiss the [jurisdictionally untimely] appeal.”). It is true that Mendoza-Lopez speaks of judicial review, 481 U.S. at 837-39, 107 S.Ct. 2148, but a Board decision on the merits would have enabled such review since our review jurisdiction depends on the date of the final agency action.
Moreover, any suggestion that the Board lacked jurisdiction effectively would require presuming that service of the deportation order occurred sometime before July 1994. But, since El Shami’s address was the same throughout this period, such a presumption would seem to apply equally to the notices of the deportation hearing that El Shami claims never to have received. In sum: either there is a presumption of notice based on mailings to a record address, in which case the immigration judge’s finding of notice (JA 482) should not be disturbed solely on El Shami’s testimony that he never received notice, see 8 C.F.R. 3.26 (1994) (allowing in absentia hearings), or there is no such presumption, in which case El Shami had an appeal to the Board that he did not take.
The majority also states that El Shami never received notice of his right to appeal, which it suggests only could have occurred at the hearing. Op. 664. But this record — El Shami's walking to his lawyer’s office to show *669him the notice of deportation, and the fact that they discussed an appeal — demonstrates El Shami's actual knowledge of his appeal rights. If anything, his lawyer may have rendered ineffective assistance — a claim El Shared also never pursued. None of this excuses El Shami’s failure to appeal to the Board in the context of a collateral attack.