United States of America v. Essam Helmi El Shami, a/k/a Essam No. 04-4662  Hamed Elshami, a/k/a Sam Helmi,…

Filed: January 6, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4662
(CR-03-294)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ESSAM HELMI EL SHAMI, a/k/a Essam Hamed
Elshami, a/k/a Sam Helmi, a/k/a Helmy Asam,
a/k/a Shamy Asam, a/k/a Sam Helmy Shamy, a/k/a
El Shami Essam,
Defendant - Appellant.
O R D E R
The court amends its opinion filed December 27, 2005, as
follows:
On page 11, first full paragraph, line 14 -- the word “covert”
is corrected to read “convert.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ESSAM HELMI EL SHAMI, a/k/a Essam No. 04-4662  Hamed Elshami, a/k/a Sam Helmi,
a/k/a Helmy Asam, a/k/a Shamy
Asam, a/k/a Sam Helmy Shamy,
a/k/a El Shami Essam,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(CR-03-294)
Argued: October 28, 2005
Decided: December 27, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Vacated in part and remanded by published opinion. Judge Gregory
wrote the majority opinion, in which Judge Niemeyer joined. Judge
Widener wrote a dissenting opinion.
COUNSEL
ARGUED: Frances Hemsley Pratt, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Charles

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Everett James, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Frank W. Dunham, Jr., Federal Public
Defender, Michael S. Nachmanoff, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Michael J. Elston, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
Essam Helmi El Shami ("El Shami" or the "defendant") appeals his
conviction for unlawful reentry of a deported alien under 8 U.S.C.
§ 1326(a) and (b)(2).1 Although a jury also convicted El Shami of one
count of social security fraud and one count of credit card fraud, he
does not appeal these convictions. El Shami argues that this court
should vacate his illegal reentry after deportation conviction under 8
U.S.C. § 1326(d) because he satisfies the three requirements for a col-
lateral attack of a prior deportation order under 8 U.S.C. § 1326(d).2
Because we conclude that the prior deportation order was flawed
under section 1326(d), we vacate the illegal reentry conviction.
1Section 1326(a) prohibits any alien who has been ordered deported or
removed from the United States from re-entering the United States with-
out permission of the Attorney General. Section 1326(b)(2) increases the
penalty for illegal reentry for aliens whose removal was subsequent to a
conviction of an aggravated felony. See 8 U.S.C. § 1326(a-b).
2El Shami argues three additional grounds for vacating the illegal reen-
try conviction. First, El Shami contends that the district court erred in
permitting the United States to introduce his aborted plea agreement and
accompanying statement of facts at trial when the record clearly demon-
strated that El Shami had not knowingly and voluntarily waived his pro-
tections under Federal Rule of Evidence 410 and Federal Rule of
Criminal Procedure 11(f). Second, El Shami asserts that the district court
erred in denying his motion for judgment of acquittal as to the unlawful
reentry charge. Finally, El Shami submits that the district court plainly
erred by allowing the jury to consider hearsay evidence. Because we
decide the issue on the first ground, we do not address these alternative
arguments for vacating the conviction.
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I.
In May 2003, El Shami was arrested in Colonial Heights, Virginia,
after being found in possession of numerous fraudulent documents,
including fraudulently obtained credit cards and social security cards.
After determining that El Shami had been deported to Egypt in
August 1994 pursuant to an order of the Immigration and Naturaliza-
tion Service ("INS") and had never received permission to re-enter
this country, the United States charged El Shami with illegal reentry
after deportation.
The facts underlying El Shami’s deportation are as follows. El
Shami immigrated to the United States from Egypt in 1980 and
became a permanent resident alien in 1984. The defendant married a
United States citizen and owned and operated two successful busi-
nesses in the New Jersey area. On July 2, 1986, El Shami was con-
victed of criminal sexual contact in the New Jersey Superior Court for
Passaic County. El Shami was convicted of aggravated arson in the
same court on August 7, 1990.
Subsequently, in early 1993, INS officials initiated deportation pro-
ceedings. On March 11, 1993, INS agents personally served El Shami
with an order to show cause and notice of a hearing at his residence
in Guttenberg, New Jersey. This order to show cause informed El
Shami that he was subject to deportation under the Immigration and
Nationality Act for being previously convicted of two crimes of moral
turpitude: criminal sexual contact and aggravated arson. After being
taken into custody by INS and transferred to Oakdale, Louisiana, El
Shami appeared for a bond hearing on March 30, 1993. At that hear-
ing in Louisiana, the immigration judge released El Shami on a
$20,000 bond. After his release, El Shami provided the INS with his
address of record in Guttenberg, New Jersey, for all correspondence
regarding the scheduling of his deportation hearing. After returning to
New Jersey, El Shami hired an attorney, who successfully moved for
a transfer of the deportation proceedings to the immigration court in
New Jersey.3
3After learning that the immigration court in Louisiana had scheduled
El Shami’s deportation hearing for April 23, 1993, in Louisiana, El
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Once the case was transferred to New Jersey, the immigration court
eventually scheduled the final deportation show cause hearing for
October 28, 1993. Although El Shami did not appear at this hearing,
the immigration judge proceeded in absentia and ordered El Shami
deported to Egypt. Subsequently, in August 1994, INS officials took
El Shami into custody and deported him to Egypt.
The United States was unable to produce any evidence demonstrat-
ing that the INS had sent El Shami or his attorney written notice of
the date and time of the October 28 hearing.4 However, El Shami and
his wife testified at the hearing on the defendant’s motion to dismiss
the illegal reentry charge that the defendant never received notice of
the hearing at his address of record. Indeed, these witnesses testified
that El Shami only learned of the October 28 deportation hearing nine
months afterwards, when he received a copy of the deportation order
in the mail.
After being arraigned on the illegal reentry after deportation and
fraud charges in November 2004, El Shami filed a motion to dismiss
the illegal reentry charge on the grounds that defects in his 1993
deportation proceedings rendered the deportation order invalid under
Shami’s attorney faxed a motion to transfer venue to the Department of
Justice Office of the Immigration Judge. This motion was either mis-
placed or never received by the immigration court in Louisiana. Neither
El Shami or his attorney appeared in Louisiana for the April 23 hearing.
When El Shami did not appear, the immigration judge continued the
hearing until April 30, 1993, and a letter was mailed to counsel in New
Jersey informing him of the new date and time. Neither the defendant or
his counsel appeared at the April 30 hearing. Shortly thereafter, an offi-
cial with the immigration court in Louisiana contacted El Shami’s attor-
ney by telephone to inquire as to the reason for El Shami’s non-
appearance. During this conversation, the official informed El Shami’s
attorney that the court had never received his transfer motion. Subse-
quently, the court granted defense counsel a two-week extension to re-
file a motion to transfer venue, which the immigration judge granted. See
J.A. 80-89.
4Although the INS sent notice of the hearing date to El Shami’s bond
holder, J.A. 91, there is no evidence that the bond holder forwarded this
information to El Shami. The United States does not contend otherwise.
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8 U.S.C. § 1326(d). The district court denied this motion, concluding
that even if El Shami had been deprived notice of his deportation
hearing, he was unable to demonstrate actual prejudice.5 See J.A. 4-5.
With respect to the district court’s denial of his motion to dismiss
the illegal reentry charge under 8 U.S.C. § 1326(d), the defendant
argues that the court erred because it misunderstood the state of the
record and the applicable standard of prejudice. Appellant’s Br. at 21,
29. Because El Shami never received notice of a hearing, the defen-
dant argues that he was denied the opportunity (1) to challenge the
factual or legal basis for the deportation, by disputing the INS’s evi-
dence or presenting his own evidence; (2) to apply for relief from
deportation under section 212(c) of the Immigration and Naturaliza-
tion Act, 8 U.S.C. § 1182(c); (3) to appeal the deportation order to the
Bureau of Immigration Affairs ("BIA");6 and, if applicable, (4) to
appeal the BIA order to the United States Court of Appeals for the
Third Circuit. Further, El Shami contends that the district court erred
in concluding that, even assuming the above deprivations, the defen-
dant could not demonstrate actual prejudice — i.e., that but for the
errors complained of there was a reasonable probability that the alien
would not have been deported.
The United States responds that the district court properly denied
the motion to dismiss the illegal reentry charge, because the INS
afforded the defendant all due process protections. Even if the INS’s
failure to advise El Shami of the date and time of his final hearing
constitutes a due process violation, the United States contends that El
Shami’s collateral attack still fails because he cannot show actual
prejudice. Accordingly, the United States argues that El Shami cannot
meet the requirements for a valid collateral attack of an illegal reentry
charge under 8 U.S.C. § 1826.
5There are additional facts pertinent to El Shami’s second, third, and
fourth arguments for overturning the illegal reentry conviction. However,
to the extent we reverse only on the basis of the propriety of the original
deportation proceeding under 8 U.S.C. § 1326(d), a discussion of facts
relating to the plea negotiations and the trial proceedings would be super-
fluous.
6At a deportation hearing, the immigration judge must inform the alien
of his right to appeal the disposition. 8 C.F.R. § 242.16(a) (1993).
5 UNITED STATES v. EL SHAMI

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II.
This Court reviews de novo the denial of a motion to dismiss a
charge under 8 U.S.C. § 1326(d). See United States v. Wilson, 316
F.3d 506, 509 (4th Cir. 2003). Because a deportation order is an ele-
ment of the offense of illegal reentry, the Supreme Court has recog-
nized that an alien can collaterally attack the propriety of the original
deportation order in the later criminal proceeding. See United States
v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). In order to success-
fully attack the underlying deportation order, the defendant must sat-
isfy three requirements. Wilson, 316 F.3d 506; 8 U.S.C. § 1326(d).
The alien must demonstrate that
(1) he exhausted any administrative remedies that may
have been available to seek relief against the order;
(2) the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity for
judicial review; and
(3) the entry of the deportation order was fundamentally
unfair.
Id. "These requirements are listed in the conjunctive, so a defendant
must satisfy all three in order to prevail." Id. However, if the defen-
dant satisfies all three requirements, the illegal reentry charge must be
dismissed as a matter of law. See id.
A.
Because we find that the INS did not provide El Shami with written
notice of the October 1993 deportation hearing as the statute required,
we conclude that he satisfies the first two requirements for a collateral
attack under 8 U.S.C. § 1326(d). The undisputed evidence indicates
that El Shami lived at the address of record that he provided to immi-
gration officials after his release on bond pending the show cause
hearing on March 30, 1993, until he was deported in August 1994.
Under the law as it stood in 1993, the INS was required to serve upon
the alien or his attorney in person, or, if service was impracticable,
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send by certified mail, written notice informing the alien, inter alia,
of the time and date of the deportation hearing. 8 U.S.C.A.
§ 1252b(a)(2)(1993). Both El Shami and his wife testified that they
did not receive any correspondence from the INS regarding the final
deportation hearing during the period of April through October 1993.
Further, during the pendency of this matter in the district court, the
United States stipulated that there was no evidence in El Shami’s
immigration file to reflect that the INS had sent El Shami written
notice of the final deportation hearing. Thus, on the basis of the
uncontradicted evidence in the record, we find that El Shami did not
receive notice of the October 1993 deportation hearing.
The United States nevertheless argues that El Shami cannot meet
the exhaustion requirement because he never appealed the immigra-
tion judge’s order of deportation to the BIA within thirty days.7 This
argument misses the mark. Because the INS never sent El Shami writ-
ten notice of the deportation hearing, El Shami did not appear and,
thus, was never informed of his right to appeal to seek administrative
and judicial review. Indeed, El Shami did not find out that he had
been ordered deported until he received a copy of the deportation
order nine months after the deportation hearing, well after the time for
seeking review had expired. As El Shami aptly concludes in his reply
brief, the United States’ argument that he did not exhaust his adminis-
trative remedies "begs the question, for without notice of the hearing
in the first instance, Mr. El Shami did not know about either the exis-
tence or the nature of the immigration judge’s ruling. Without that
knowledge he could not appeal to the [BIA] and, if necessary, to the
U.S. Court of Appeals for the Third Circuit." Appellant’s Reply Br.
at 4. We agree.
In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the
Supreme Court held that an immigration judge’s failures to advise the
alien of his right to apply for section 212 relief and to ensure that the
alien’s waiver of his right to appeal the deportation order constituted
a complete deprivation of administrative and judicial review within
the meaning of section 1326(d). See id. at 840. This case falls
7Under the law as it existed in 1993, the alien only had thirty days fol-
lowing the entry of the deportation order to file an appeal. 8 U.S.C.
§ 1105a(a)(1)(1993).
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squarely within the rule of Mendoza-Lopez. To the extent that the
INS’s failure to provide notice precluded El Shami from attending his
deportation hearing in the first instance, he was never apprised of his
right to seek section 212 relief and administrative and judicial review.
Accordingly, we hold El Shami satisfies the first two requirements for
a collateral attack under section 1326(d). See id.
B.
We next turn to the question of whether the entry of the deportation
order was fundamentally unfair. We find that it was. To demonstrate
fundamental unfairness, "a defendant must show that (1) his due pro-
cess rights were violated by defects in his underlying deportation pro-
ceeding, and (2) he suffered prejudice as a result of the defects."
Wilson, 316 F.3d at 510.
The INS’s failure to send El Shami written notice of his deporta-
tion hearing deprived him of due process. As then Judge Chertoff rec-
ognized in United States v. Torres, 383 F.3d 92 (3rd Cir. 2004), an
alien’s "fundamental" right of due process "is the opportunity to be
heard at a meaningful time and in a meaningful manner. More specifi-
cally, . . . due process requires an alien who faces [removal] be pro-
vided (1) notice of the charges against him, (2) a hearing before an
executive or administrative tribunal, and (3) a fair opportunity to be
heard." Id. at 104 (internal quotation marks and citations omitted).
Although El Shami was aware of the charges against him, the INS’s
failure to provide notice of the hearing deprived him of the opportu-
nity to contest those charges or otherwise seek relief from deportation
from the administrative tribunal. Therefore, we hold that El Shami
satisfies the due process prong of the fundamental unfairness require-
ment.
The last element that El Shami has to show under the fundamental
unfairness requirement is that the deficiencies in the deportation pro-
ceedings caused him actual prejudice. See Wilson, 316 F.3d at 509.
Specifically, El Shami must show that, but for the errors complained
of, there was a reasonable probability that he would not have been
deported. Wilson 316 F.3d at 511.
In the instant case, El Shami would have sought relief from depor-
tation under section 212(c) of the Immigration and Naturalization Act.
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See 8 U.S.C. § 1182(c)(1994 & Supp.). This provision, which was
subsequently repealed by the passage of the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214,
authorized an immigration judge to waive deportation upon a showing
that certain mitigating factors outweighed adverse factors. See Matter
of Marin, 16 I. & N. Dec., 581, 584 (BIA 1978). In 2001, the
Supreme Court held that the AEDPA did not apply retroactively. See
INS v. St. Cyr, 533 U.S. 289 (2001). Therefore, because section
212(c) relief was available to El Shami at the time of his deportation
proceeding in 1993, we must consider the likelihood that the immi-
gration judge or the BIA would have waived deportation under sec-
tion 212 in determining whether there is a reasonable probability that
he would not have been deported.
We find that El Shami has made such a showing. In determining
whether to grant relief from deportation, the immigration judge would
have weighed adverse factors against mitigating factors. See Matter
of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). Adverse factors
included: (1) the nature and circumstances of the offense that led to
the initiation of deportation proceedings; (2) additional violations of
the immigration laws; (3) the existence of a criminal record; and (4)
evidence of bad character. Id. Mitigating factors included: (1) family
ties in the United States; (2) lengthy residence in the United States;
(3) hardship to the alien and his family if deportation occurs; (4) exis-
tence of property or business ties; (5) evidence of good character and
reputation in the community; (6) proof of rehabilitation if a criminal
record exists. Id.
Although El Shami had two serious felony convictions on his
record, there is substantial mitigating evidence in the record. Specifi-
cally, El Shami had lived in the United States for thirteen years at the
time of the deportation hearing. Further, El Shami had a wife and a
son, both of whom were citizens of the United States and depended
on him for financial support. At the time of his deportation hearing,
El Shami owned a small business in New Jersey, on which he paid
federal income taxes. We also note that El Shami complied with the
terms and conditions of his release on bond from the time of his
release in April 1993 until the final deportation hearing on October
1993. These are substantial facts that El Shami could have presented
at the time of his final deportation hearing to obtain § 212 relief.
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Finally, we note that the Supreme Court has recognized that between
1989 and 1995, the interval during which El Shami would have
sought waiver, over fifty percent of aliens who requested section 212
relief received it. See St. Cyr, 121 S. Ct. at 2277. Accordingly, we
hold that El Shami satisfies the second prong of the fundamental
unfairness requirement under 8 U.S.C. § 1326(d).
III.
Because we find that El Shami satisfies the three requirements for
a collateral attack of conviction for unlawful reentry of a deported
alien under 8 U.S.C. § 1326(d), we vacate the judgment of conviction
on that count and remand to the district court for re-sentencing.8
VACATED IN PART
AND REMANDED
WIDENER, Circuit Judge, 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 (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 "rea-
sonable 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 out-
come, which the district court deemed insufficient to establish preju-
8We express no opinion on the merits of El Shami’s alternative argu-
ments for vacating the illegal reentry conviction.
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dice 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 favor-
able 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 condi-
tions of his release on immigration bond. Slip op. 9-10. 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 ser-
vice 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 convert El Shami’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 underweighs the factors working
against El Shami: 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. Slip op. 9. 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:17-1a(2)
prohibits arson with the purpose of destroying the building or struc-
ture of another. The pre-sentence report indicates that El Shami was
convicted of "criminally intentionally touching the breast" of the vic-
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tim, "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 con-
victed of "arson assault," simple assault, third-degree theft by decep-
tion, 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. United
States, 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’ names and other information con-
1The majority’s reliance, slip op. 10, on the Supreme Court’s observa-
tion 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.").
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cerning 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 pos-
sessed 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 disre-
gard for other people, to say nothing of the law.2
2I 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 Proceed-
ing 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
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Accordingly, I would affirm the validity of El Shami’s deportation
and reach the other arguments raised in this appeal.
rescission, and section 1105a, cited by the majority, slip op. 7 n.7, gov-
erned petitions for review in the Courts of Appeals. For administrative
purposes, because there is no proof that the deportation order or notifica-
tion thereof was served on El Shami until July 1994, and indeed all evi-
dence suggests otherwise, slip op. 4, 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, but a Board decision
on the merits would have enabled such review since our review jurisdic-
tion depends on the date of the final agency action.
Moreover, any suggestion that the Board lacked jurisdiction effec-
tively 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 immigra-
tion 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 hear-
ing. Slip. op. 7. But this record—El Shami’s walking to his lawyer’s
office to show him the notice of deportation, and the fact that they dis-
cussed an appeal—demonstrates El Shami’s actual knowledge of his
appeal rights. If anything, his lawyer may have rendered ineffective
assistance--a claim El Shami also never pursued. None of this excuses El
Shami’s failure to appeal to the Board in the context of a collateral
attack.
14 UNITED STATES v. EL SHAMI

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