United States of America v. Jose Augustin Torres, a/k/a Juan Diaz, a/k/a Victor Torres, a/k/a Anthony Rodriguez,…

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2574
UNITED STATES OF AMERICA
v.
JOSE AUGUSTIN TORRES,
a/k/a Juan Diaz, a/k/a Victor Torres,
a/k/a Anthony Rodriguez, a/k/a Joselito
Torres, a/k/a Martin Rodriguez
Jose Augustin Torres,
Appellant
On Appeal from the
United States District Court
for the Eastern District of Pennsylvania
(Dist. Court. No. 02-cr-00427)
District Judge:
Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR
34.1(a)
January 23, 2004
Before: ALITO and CHERTOFF,
Circuit Judges, and DEBEVOISE,
District Judge*
(Filed: September 7, 2004)
MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. McCOLGIN
Supervising Appellate Attorney
ELIZABETH T. HEY
Assistant Federal Defender
Defender Association of Philadelphia
Federal Court Division
Curtis Center,
Independence Square West
Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
PATRICK L. MEEHAN
United States Attorney
LAURIE MAGID
Deputy United States Attorney
for Policy and Appeals
ROBERT A. ZAUZMER
Assistant United States Attorney,
Senior Appellate Counsel
ANITA EVE
Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
* Honorable Dickinson R.
Debevoise, Senior United States District
Judge for the District of New Jersey,
sitting by designation.

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

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

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

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

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

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

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

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

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

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

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12
8 U.S.C. § 1252, several provisions of
which literally proscribed “judicial
review” of the removal proceedings of
aliens convicted of certain crimes. At
least in part to avoid invalidating that
provision on constitutional grounds, see
533 U.S. at 299-300, the Court held that
the “judicial review” precluded in section
1252 of the statute meant only direct
review and not habeas review.
If that is the definition of “judicial
review” in 8 U.S.C. § 1252, does it follow
that the identical term in 8 U.S.C. §
1326(d) must mean the same thing, so that
the availability to an alien of habeas
review at the time of removal is not the
sort of “judicial review” that bars
collateral attack on the alien’s removal
order in an action for criminal re-entry?
There is something to be said for
reading the terms differently in these two
parts of the same statute. See Atl.
Cleaners & Dyers v. United States, 286
U.S. 427, 433 (1932). As a matter of
reality, section 1326(d), which sets forth
the conditions under which an alien may
collaterally attack his removal order, was
a codification of the Supreme Court’s
decision in Mendoza-Lopez. See United
States v. Grey, 87 Fed. Appx. 254, 256
(3d Cir. 2004) (not precedential); United
States v. Copeland, __ F.3d __, 2004 WL
1588088, at *4 (2d Cir. July 16, 2004);
United States v. Wilson, 316 F.3d at 515
n.1 (Motz, J., concurring) (citing to
legislative history); United States v.
Lopez-Vazquez, 227 F.3d 476, 484 n.13
(5th Cir. 2000); United States v. Estrada-
Torres, 179 F.3d 776, 780 (9th Cir. 1999)
overruled on other grounds by United
States v. Rivera-Sanchez, 247 F.3d 905,
909 (9th Cir. 2001). Mendoza-Lopez
expressly observed that “any alien held in
custody pursuant to an order of
deportation may obtain judicial review of
that order in a habeas corpus proceeding.”
481 U.S. at 836-37. Where a
congressional provision implements a
Supreme Court ruling, there is a
compelling reason to adopt an operative
definition used in that ruling. See Slack v.
McDaniel, 529 U.S. 473, 481 (2000).
Furthermore, realism compels us to
acknowledge that when Congress used the
term “judicial review” in enacting section
1326(d), it may not have anticipated that
five years later the Supreme Court would
narrowly construe the same phrase in the
context of section 1252 to exclude habeas
review. See St. Cyr, 533 U.S. at 330
(Scalia, J., dissenting). Thus, we cannot
confidently assert that Congress
“intended” that the term “judicial review”
be defined identically in both sections.
In fact, the St. Cyr Court’s
interpretation of the phrase “judicial
review” in section 1252 was strongly
affected by the canon of constitutional
avoidance, see 533 U.S. at 300, 305,
which impels a court to narrow statutory
language when necessary to confronting a
statutory clash with the constitution. See,
e.g., Crowell v. Benson, 285 U.S. 22, 62
(1932); United States v. Bishop, 66 F.3d
at 311. But see 533 U.S. at 330 (Scalia, J.,
dissenting).

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13
569, 587 (3d Cir. 1996). The Court
believed that if the preclusion of judicial
review under section 1252 were read
broadly to include preclusion of habeas
review, the resulting bar might amount to
an unconstitutional suspension of habeas
corpus. See St. Cyr, 533 U.S. at 314. We
need not import St. Cyr’s narrow
interpretation of “judicial review” into
another provision in the statute where
there is no such issue of constitutional
avoidance.
On the other hand, we acknowledge
the argument in favor of construing the
term “judicial review” in section 1326(d)
as we construe the same term in section
1252 after St. Cyr. As a general canon of
construction, the same words in the same
statute are interpreted in the same way.
See C.I.R. v. Ridgeway’s Estate, 291 F.2d
257, 259 (3d Cir. 1961). And it is not
nonsensical to interpret section 1326(d) as
requiring direct judicial review—and not
merely habeas review—to foreclose a later
collateral attack on the original removal.
For, as we have held, the scope of direct
review is broader than the scope of habeas
review. See Bakhtriger, 360 F.3d at 424.
Congress could have intended that
collateral review be foreclosed only by the
fuller form of prior court review afforded
by direct appeal, although frankly we see
no evidence that Congress had this
distinction in view when it enacted section
1326(d).10 See H.R. Conf. Rep. No. 104-
518, at 119 (1996), reprinted in 1996
U.S.C.C.A.N. 924, 952.
At any rate, we need not
conclusively resolve what suffices to
constitute judicial review under section
1326(d). Torres’s collateral challenge
suffers from a more obvious defect—he
cannot establish that his removal order
was “fundamentally unfair” as required by
section 1326(d)(3). We will therefore
assume, arguendo, that Torres was denied
a meaningful opportunity for judicial
review.
B.
Of the seven published cases
factually similar to this one decided by the
Courts of Appeals in the wake of St. Cyr,
most have been decided on the ground that
the alien failed to establish that the
underlying removal proceeding was
fundamentally unfair.11 Compare Aguire-
Tello, 353 F.3d at 1207-10, and Wilson,
316 F.3d at 509-11, and Mendoza-Mata,
322 F.3d at 832, and Lopez-Ortiz, 313
F.3d at 231, and United States v. Leon-
Paz, 340 F.3d 1003, 1007 (9th Cir. 2003)
(remanding for findings on whether alien
10 This also strains the literal notion
of legislative intent pretty far, since it
assumes that, in 1996, Congress foresaw
developments more than five years later in
St. Cyr and its progeny.
11 Mendoza-Lopez does not compel
a contrary result. There, based on the
Government’s concession, the Supreme
Court assumed that the proceeding was
fundamentally unfair. 481 U.S. at 839-40
& n.17. We need not make the same
assumption here.

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14
had established prejudice and, therefore,
fundamental unfairness), with Ubaldo-
Figueroa, 364 F.3d at 1051 (dismissing
indictment and holding that alien had
successfully challenged underlying
removal order),12 and Roque-Espinoza,
338 F.3d at 728 (upholding conviction
because alien was afforded meaningful
judicial review).
This Court has not yet had occasion
to construe the term “fundamental[]
unfair[ness]” as it is used in section
1326(d)(3). We must determine,
therefore, what must be shown in order to
establish that a removal proceeding was
fundamentally unfair within the meaning
of 8 U.S.C. § 1326(d)(3).
In measuring whether an alien’s
removal proceeding was “fundamentally
unfair,” most circuits ask whether the alien
was denied due process. See Ubaldo-
Figueroa, 364 F.3d at 1047-48; Aguire-
Tello, 353 F.3d at 1204; Wilson, 316 F.3d
at 510; Lopez-Ortiz, 313 F.3d at 230-31;
Fernandez-Antonia, 278 F.3d at 159. We
agree that “[f]undamental fairness is a
question of procedure.”13 Lopez-Ortiz,
313 F.3d at 230.
As the Supreme Court and this
court have repeatedly observed, removal
proceedings are civil in nature. See
Harisaides v. Shaughnessy, 342 U.S. 580,
594 (1952); Perez v. Elwood, 294 F.3d
552, 557 (3d Cir. 2002). Aliens in
removal proceedings are entitled to due
process, though the procedural protections
accorded to them in that context measure
less than the panoply available to a
criminal defendant. See Dia v. Ashcroft,
353 F.3d 228, 238-39 (3d Cir. 2003) (en
12 But see Alvarenga-Villalobos v.
Ashcroft, 271 F.3d 1169, 1172-73 (9th
Cir. 2001) (dismissing habeas attack on
removal order underlying reinstatement of
removal, questioning whether the Ninth
Circuit’s decision consonant with St. Cyr
operated retroactively, and concluding that
alien was afforded meaningful judicial
review).
13 Also, every Circuit to have
considered the requirements for a
successful collateral challenge to a
removal order has held that the alien must
make some showing that prejudice has
resulted—i.e., whether the alien could
realistically have expected that the
Attorney General would exercise
discretion to give the alien relief from
removal. See Aguire-Tello, 353 F.3d at
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
Cir. 1997); United States v. Perez-Ponce,
62 F.3d 1120, 1122 (8th Cir. 1995);
United States v. Espinoza-Farlo, 34 F.3d
469, 471 (7th Cir. 1994); United States v.
Holland, 876 F.2d 1533, 1536 (11th Cir.
1989). Since we find no fundamental
unfairness, we have no reason to reach the
issue of whether section 1326(d) requires
a showing of prejudice.

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15
banc); Lopez-Ortiz, 313 F.3d at 230.
“The fundamental requirement of due
process is the opportunity to be heard at a
meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (citation and internal
quotation marks omitted); see also Dia,
353 F.3d at 239. More specifically, in the
removal context, “due process requires
that an alien who faces [removal] be
provided (1) notice of the charges against
him, (2) a hearing before an executive or
administrative tribunal, and (3) a fair
opportunity to be heard.” Lopez-Ortiz,
313 F.3d at 230 (citing Kwong Hai Chew
v. Colding, 344 U.S. 590, 597-98 (1953)).
Torres does not contend he was denied
any of these.
Rather, Torres contends that his
removal proceeding was rendered
fundamentally unfair by the IJ’s erroneous
conclusion—in accordance with the then-
reigning interpretation of the law—that
Torres was not eligible for discretionary
relief. Torres essentially argues that the
IJ’s error of law rose to the level of a due
process violation. We disagree.
Without more, an error of law will
ordinarily not rise to the level of a due
process violation.14 In the context of
federal habeas corpus review of state
criminal proceedings, for example, the
Supreme Court and this Court have
repeatedly held that “mere error[s] of state
law [do not amount to] a denial of due
process.” Engle v. Isaac, 456 U.S. 107,
121 n.21 (1982) (internal quotations
omitted); Smith v. Zimmerman, 768 F.2d
69, 73-74 (3d Cir. 1985). Similarly, while
we have reversed verdicts due to legal
error that occurred at a civil trial, it is not
generally part of our conclusion that the
error rose to the level of a violation of due
process. See, e.g., Ambrose v. Township
of Robinson, Pa., 303 F.3d 488 (2002)
(failure to grant judgment as a matter of
law); Becker v. ARCO Chem. Co., 207
F.3d 176 (3d Cir. 2000) (improper
admission of evidence); Bohler-
Uddenholm Am., Inc. v. Ellwood Group.,
Inc., 247 F.3d 79, 100-02 (3d Cir. 2001)
(jury instruction).
In fairness to Torres, he challenges
not just the IJ’s legal conclusion, but also
the consequences that flowed from it. By
definition, when the IJ concluded that
Torres was not eligible for 212(c) relief,
he did not consider Torres for that relief.
Torres alleges fundamental unfairness
because he maintains that he had a due
process liberty interest in being considered
for 212(c) relief. We disagree.
At least three circuits have held
that, because discretionary relief is
necessarily a matter of grace rather than of
right, aliens do not have a due process
liberty interest in consideration for such
relief. See Lopez-Ortiz, 313 F.3d at 231;
Oguejiofor v. Attorney General, 277 F.3d
1305, 1309 (11th Cir. 2002); Smith v.
14 Indeed, the IJ’s understanding of
the law was not erroneous at the time. We
are extremely reticent to treat as
fundamentally unfair an administrative
official’s failure to predict that binding
law will change.

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16
Ashcroft, 295 F.3d 425, 429-30 (4th Cir.
2002). The possibility that the IJ would
have granted 212(c) relief in Torres’s case
was speculative at best. 8 U.S.C. § 1182
did not set out criteria for determining
whether relief from removal was
appropriate in a given case. Rather, it left
to the IJ’s sole discretion whether to grant
that relief. Section 1182 was, therefore,
entirely a “piece of legislative grace, . . .
convey[ing] no rights[ and] no status.”
Lopez-Ortiz, 313 F.3d at 231 (internal
quotations omitted). It was not the kind of
statute that “create[d] a vested liberty or
property interest.” Smith, 295 F.3d at 429.
Even if Torres had presented a most
sympathetic and compelling case for
granting section 212(c) relief, nothing
would have required the IJ to actually
grant that relief.
To be sure, a meaningful
distinction may exist between the claim
that an alien has a due process interest in
being considered for available
discretionary relief on the one hand, and
the very different claim that an alien has a
due process interest in the favorable
exercise of that relief.15 Thus, Torres can
argue that, although he had no right to the
favorable exercise of 212(c) relief, he
retained a due process interest in being
considered for that relief. The contention
has some superficial support: A prisoner
may have no right to the favorable
exercise of parole while at the same time
in some circumstances he may have a due
process interest in consideration for
parole. See Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7
(1979); Roque Espinoza, 338 F.3d at 729-
30. On closer inspection, however, the
parole cases actually refute any contention
that Torres had a protectible interest in
being considered for discretionary relief.
In Greenholtz, the Supreme Court
squarely held that there is no constitutional
right to parole. 442 U.S. at 7. The Court
specifically held that the possibility of
early release “provide[d] no more than a
mere hope that the benefit will be
obtained. . . . , a hope which is not
protected by due process.” Id. at 11
(internal citations omitted). Where,
however, a state creates a parole system
that statutorily mandates release unless
specified conditions are met, a prisoner
eligible for parole consideration may be
entitled to certain due process protections.
See id. at 12; Frey v. Fulcomer, 132 F.3d
916, 925 n.7 (3d Cir. 1997); Walker v.
Prisoner Review Bd., 769 F.2d 396, 400
(7th Cir. 1985). As we stated in Frey,
therefore,
the Greenholtz line of
decisions stands for the
p r o p o s i t i o n t h a t
state-created liberty interests
will be found when the state
(1) establishes substantive
predicates to guide official
decisionmaking, and (2)
uses explicit mandatory
15 The Seventh Circuit has noted
this distinction, see Roque Espinoza, 338
F.3d at 729-30, but no circuit has yet
considered whether it has merit when
applied to section 212(c).

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17
language in its
regulations directing
the decisionmaker to
reach a particular
outcome if the
s u b s t a n t i v e
p r e d i c a t e s a r e
present.
Frey, 132 F.3d at 925 n.7.
Section 212(c) uses no “explicit
mandatory language” that could create in
an alien any protectible expectation of
entitlement to relief. Instead, relief under
section 212(c) falls squarely within what
the Court in Greenholtz described as a
“mere hope” category of relief.16 Unlike
the parole statute at issue in Greenholtz,
section 212(c) sets forth no presumption in
favor of relief. It speaks merely to the
Attorney General’s “discretion.” As the
Fifth Circuit appropriately observed in
Lopez-Ortiz, section 212(c) is a matter of
“legislative grace.” 313 F.3d at 231
(internal quotations omitted). Thus, a
careful reading of Greenholtz and its
progeny reinforces our view that the
denial of consideration here does not
violate due process with regard to a
protectible liberty interest. We agree with
our sister circuits that have held no
fundamental unfairness in failing to
consider an alien for 212(c) relief.
Finally, although the IJ erroneously
concluded that Torres was ineligible to be
considered for 212(c) discretionary relief,
the IJ did inform Torres of the reasons for
the Government’s charge that Torres was
removable, did provide him an
16 The language of section 212(c)
stands in stark contrast to the statutory
language that the Court in Greenholtz held
created an expectation of relief, which
provided:
“Whenever the Board of
Parole considers the release
of a committed offender
who is eligible for release
on parole, it shall order his
release unless it is of the
opinion that his release
should be deferred because:
(a) There is a substantial
risk that he will not conform
to the conditions of parole;
(b) His release would
depreciate the seriousness
of his crime or promote
disrespect for law;
(c) His release would have
a substantially adverse
effect on institutional
discipline; or
( d ) H i s c o n t i n u e d
correctional treatment,
medical care, or vocational
or other training in the
facility will substantially
enhance his capacity to lead
a law-abiding life when
released at a later date.”
Greenholtz, 442 U.S. at 11 (quoting Neb.
Rev. Stat. § 83-1,114(1) (1976))
(emphasis added).

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18
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.

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