WINTER, Circuit Judge.
The government appeals from Judge Weinstein's dismissal of an indictment charging Richard Copeland with illegal reentry into the United States after deportation. See 8 U.S.C. § 1326(a). Copeland collaterally attacked the validity of his deportation order as provided under Section 1326(d), and the district court held that his deportation was not a valid element of the criminal reentry charge because the underlying deportation hearing was not consistent with due process. We agree that most of the requirements of Section 1326(d) have been met. However, we remand for a hearing and findings on whether the defects in Copeland's deportation hearing caused him prejudice.
a) Copeland's History
Copeland, a Jamaican citizen, had been adopted by his grandmother, a naturalized citizen of the United States, in 1978. He came to the United States at age 12 in 1982 and lived in this country as a lawful permanent alien until he was deported in 1998. The district court found that at the time of his deportation, Copeland was living with and supporting his two children, ages 11 and 4, and their mother, all of whom are citizens of the United States.
Copeland was convicted of four New York state crimes prior to his deportation. Upon each arrest, he gave the police false names, social security numbers, addresses, and/or birth dates. On May 18, 1988, he
The warrant on the weapons charge was returned after yet another arrest on September 18, 1995. At that time Copeland pled guilty under his own name to criminal possession of a weapon in the third degree for the 1989 arrest and was sentenced to a year in prison on that charge. The conduct leading to Copeland's September 16, 1995 arrest involved serious violence. He pulled a man from a car at gunpoint, demanded money, and shot him in the throat when the man tried to escape. The victim was paralyzed by the shot. Copeland was charged with attempted murder, first degree robbery, first and fourth degree assault, criminal possession of a weapon in the second and third degrees, and menacing in the second degree. On October 27, 1995, Copeland pled guilty to criminal possession of a weapon in the second degree based on these charges and was sentenced to an 18 to 54 month term of imprisonment. Copeland served his three felony sentences concurrently, from October 13, 1995 to September 23, 1998.
b) The Deportation
While Copeland was incarcerated on his various sentences, the INS initiated deportation proceedings based on his conviction of the February 9, 1993 attempted criminal sale of a controlled substance. 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(A)(iii). A deportation hearing was held before an Immigration Judge ("IJ") on August 7 and November 27, 1996. At the August hearing, the IJ began by informing Copeland of his right to an attorney and to appeal any decision by the IJ within 30 days of that decision. The IJ also told Copeland that because he was an alien, he would be deportable if the INS proved that he had been convicted of attempted sale of a controlled substance. The IJ stated that "[u]nder current law there is no waiver for deportability if you're, had been convicted of, of violation of a controlled substance law," because "the law changed April 1996 a couple a months ago ... and the new law says if you have a conviction for narcotics you're not eligible for any form of relief."
Copeland seemingly tried to ask whether the date of his conviction affected his eligibility for waiver:
The IJ then adjourned the hearing for three months to give Copeland time to find an attorney.
When the hearing resumed on November 27, 1996, Copeland appeared pro se. Copeland admitted that he was not a citizen of the United States, that he was a citizen of Jamaica, and that he had been convicted of attempted criminal sale of a controlled substance on September 27, 1993.
Copeland did not file an appeal with the Board of Immigration Appeals ("BIA") within the 30 day time limit for such filings. Copeland remained in the United States, however, because of his incarceration in New York.
The "new law" referred to by the IJ was actually two laws: the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, enacted on April 24, 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546, enacted on September 30, 1996 (collectively, "the 1996 Amendments"), which amended the Immigration and Nationality Act ("INA"), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. Prior to these amendments, the Attorney General had broad discretion to cancel deportation orders for aliens who met certain residence requirements and had not served five years in prison for an aggravated felony. See 8 U.S.C. § 1182(c) (repealed 1996); INS v. St. Cyr, 533 U.S. 289, 296-97, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). AEDPA amended Section 1182(c) to render aliens who pled guilty to aggravated felonies ineligible for Section 212(c) discretionary relief from deportation. AEDPA § 440(d). IIRIRA then repealed § 212(c), see IIRIRA § 304(b), replacing it with a new section giving the Attorney General authority to cancel removal for only a narrowly defined class of inadmissible or deportable aliens, not including anyone "convicted of any aggravated felony," id. (creating 8 U.S.C. § 1229b). At the time of Copeland's deportation hearing, the BIA's position was that the 1996 Amendments applied retroactively to aliens, like Copeland, who had pled guilty to aggravated felonies prior to their enactment. See In re Soriano, 21 I. & N. Dec. 516, 534, 1996 WL 426888 (BIA June 27, 1996), vacated on other grounds, 1997 WL 33347804 (Op. Atty Gen. Feb. 21, 1997). The IJ's statement to Copeland that new laws had rendered him ineligible for relief was based on Soriano.
During 1997 and 1998, however, several courts in this circuit and elsewhere ruled
On September 22, 1998, after his deportation hearing but prior to the decision in St. Cyr, Copeland filed a motion to reopen his deportation proceedings and for a stay of deportation under Section 212(c). Copeland, now represented by counsel, based his motion in part on the argument that the IJ had breached his obligation under 8 C.F.R. § 242.17(a) to inform Copeland of his eligibility for Section 212(c) relief. The same IJ denied Copeland's motion to reopen on the ground that, although Section 212(c) relief remained available to aliens whose deportation proceedings began prior to the passage of AEDPA, Copeland was ineligible for Section 212(c) relief because his deportation proceedings began after its passage.
Copeland appealed the IJ's decision to the BIA on October 6, 1998, arguing that he was eligible for Section 212(c) relief. However, on November 24, 1998, before the BIA considered his appeal, Copeland was deported to Jamaica. On May 25, 1999, the BIA dismissed Copeland's appeal as moot under 8 C.F.R. § 3.6(b) because Copeland had already been deported.
c) District Court Decision
Copeland reentered this country by February 22, 1999, at the latest. On December 1, 2001, he was arrested and thereafter indicted in the Eastern District of New York for illegal reentry into the United States. 8 U.S.C. §§ 1326(a),(b)(2); 18 U.S.C. § 3551 et seq. On March 27, 2002, Copeland moved to dismiss the indictment on the grounds that his deportation order, an element of the crime of illegal reentry, was invalid.
At a hearing before Judge Weinstein, Copeland argued that he was not accurately advised of his right to appeal because the IJ incorrectly told him that no relief was available because of the 1996 Amendments. The district court scheduled another hearing to determine whether Copeland "really didn't appreciate that he had a right to appeal[,] having been overborne" by the IJ. At that hearing, the court listened to the tapes of Copeland's deportation hearings, heard testimony from an INS agent on Copeland's criminal history, and asked Copeland about his age (27) and education (high school equivalency) at the time of his deportation hearing. The district court found that Copeland's "will was not overborne" and that he made "a rational decision [not to appeal] — based upon the advice he then received, which ultimately turned out to be incorrect." The court also found that the IJ effectively told Copeland that appeal would be futile, and Copeland rationally "decided not to waste his time and the government's time by appealing."
The district court then dismissed the indictment on the ground that the underlying deportation order violated Copeland's due process rights and therefore could not be the basis for the prior deportation element in the illegal reentry charge. United States v. Copeland, 228 F.Supp.2d 267, 272 (E.D.N.Y.2002).
The district court noted that, under Section 1326(d), a deportation order could be collaterally challenged in an illegal reentry criminal case if the alien 1) exhausted administrative remedies; 2) was deprived of the opportunity for judicial review; and 3)
This appeal by the government followed.
The adjudicative facts are not in dispute, and we review the issues of law de novo. Elewski v. City of Syracuse, 123 F.3d 51, 53 (2d Cir.1997).
a) Collateral Attack on Deportation Orders It is a crime for a deported or removed alien to enter, attempt to enter, or be found in the United States. 8 U.S.C. § 1326(a). An alien can defend against such a charge by challenging the validity of the deportation order upon which the charge is predicated. In United States v. Mendoza-Lopez, the Supreme Court held 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." 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (emphasis in original). In response to Mendoza-Lopez, Congress added a subsection to Section 1326 providing:
8 U.S.C. § 1326(d). We turn to the application of Section 1326(d)(1), (2), and (3) in the present matter.
1. Section 1326(d)(1): Exhaustion of Administrative Remedies
The district court held that Copeland had fulfilled the exhaustion requirement of Section 1326(d)(1) because an appeal to the BIA would have been futile in light of Soriano. However, we have since held that there is no futility exception, with one qualification described below, to statutory exhaustion requirements.
Nevertheless, under our caselaw, Copeland's motion to reopen his deportation hearing and his appeal from the denial of that motion satisfied the exhaustion requirement of Section 1326(d). In United States v. Perez, we held that an alien who failed to appeal an IJ's deportation order satisfied the exhaustion requirement of Section 1326(d) by making a motion to reopen his case and appealing the denial of that motion to the BIA. 330 F.3d 97, 101 (2d Cir.2003).
2. Section 1326(d)(2): Denial of Judicial Review
Under Section 1326(d)(2), Copeland must demonstrate that he was denied an opportunity for judicial review. An alien is denied this opportunity, for example, if the IJ does not adequately inform him of his right to a direct appeal from a deportation order. Mendoza-Lopez, 481 U.S. at 840. However, in the instant case, Copeland had no statutory right to appeal his deportation order directly to a federal court under AEDPA and the transitional
The availability of habeas review is sometimes deemed to constitute an opportunity for judicial review. See Gonzalez-Roque, 301 F.3d at 49-50 (even though IIRIRA prevented direct petition for review of deportation in federal court, alien not denied judicial review because habeas review was available). Nevertheless, the technical availability of habeas review is not always sufficient to constitute available judicial review. In Mendoza-Lopez itself, habeas review was apparently available to the aliens, yet the Court held that they were deprived of judicial review where direct review was available but their waivers of appeal were not considered or intelligent. See 481 U.S. at 836-37, 840, 107 S.Ct. 2148 (holding aliens deprived of opportunity for judicial review of deportation order but recognizing that "any alien held in custody pursuant to an order of deportation may obtain judicial review of that order in a habeas corpus proceeding").
Reading Gonzalez-Roque and Mendoza-Lopez in tandem, we hold that where habeas review is technically available, judicial review will be deemed to have been denied if resort to a habeas proceeding was not realistically possible. In both decisions, the consequences of the availability of habeas review turned on the temporal interval between the order and physical deportation during which the alien could have filed a habeas petition. In Mendoza-Lopez, the deportation order was issued on or after October 30, 1984, in Denver, Colorado, and the aliens were deported — after being bused to El Paso, Texas — on November 1, 1984. 481 U.S. at 830, 107 S.Ct. 2148. In contrast, in Gonzalez-Roque, the deportation order was finalized by the BIA's dismissal of the alien's appeal in November 1996, but Gonzalez-Roque was not deported until September 1997, about 10 months later. 301 F.3d at 44.
We read these precedents to indicate that where habeas review is potentially available, an opportunity for judicial review will still be deemed to have been denied where the interval between entry of the final deportation order and the physical deportation is too brief to afford a realistic possibility of filing a habeas petition. We read them further to establish a principle that where no realistic opportunity for judicial review by way of habeas review existed, an alien's failure to seek such review will not be deemed to preclude
Copeland's deportation order became administratively final on November 27, 1996, when the IJ ordered him deported. See 8 C.F.R. § 1003.39 ("Except when certified to the [BIA], the decision of the [IJ] becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs first.") (formerly codified at 8 C.F.R. § 3.39). After deportation, further administrative and habeas review were precluded by a pre-IIRIRA provision which applied to Copeland under the transitional rules of IIRIRA. That provision, former Section 106 of the INA, stated that "[a]n order of deportation ... shall not be reviewed by any court if the alien ... has departed the United States after the issuance of the order." 8 U.S.C. § 1105a(c) (1995). Section 106 applied to aliens subject to IIRIRA's transitional rules governing judicial review — aliens who were in deportation proceedings "as of" April 1, 1997, and in whose cases final orders of deportation were entered after October 30, 1996. IIRIRA § 309(c). Copeland met these criteria, because his final deportation order was entered on November 27, 1996. Thus, Copeland was statutorily barred from filing a habeas petition after he was deported. See Swaby v. Ashcroft, 357 F.3d 156, 160 n. 8 (2d Cir.2004) (noting that habeas petitions filed by aliens subject to INS Section 106 mooted by deportation); Duran v. Reno, 197 F.3d 63, 63 (2d Cir.1999) (dismissing habeas petition filed by deported alien subject to INA Section 106 as moot). Swaby held that a habeas petition filed by an alien under IIRIRA's new judicial review provisions was not mooted by deportation because a collateral consequence of that deportation — a lifetime bar to entering the United States — was sufficient to maintain a live case or controversy. 357 F.3d at 160-61. Swaby did not address the issue of whether IIRIRA allows aliens to initiate habeas petitions after deportation, an entirely different issue governed by the statutory requirement that a habeas petitioner be "in custody" at the time of filing, 28 U.S.C. §§ 2254(a), 2255, rather than the constitutional case or controversy requirement. We need not reach the latter issue because Copeland was statutorily barred from filing a habeas petition after his deportation.
Copeland therefore had habeas relief available, if at all, only before his deportation on November 24, 1998. However, had Copeland sought habeas review before filing the motion to reopen with the IJ and appealing the denial of that motion, he would have faced the defense that he had not exhausted his administrative remedies because his appeal to the BIA was still pending at the time of his deportation. An alien who waives his appeal cannot seek habeas relief when the order becomes final because such relief is not available unless a petitioner "has exhausted all administrative remedies available... as of right." 8 U.S.C. § 1252(d)(1). See also Theodoropoulos, 358 F.3d at 171.
3. Section 1326(d)(3): Fundamental Unfairness
"To show fundamental unfairness [under Section 1326(d)(3)], a defendant `must show both a fundamental procedural error and prejudice resulting from that error.'" Perez, 330 F.3d at 104 (quoting United States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir.2002)). In short, "in order to demonstrate prejudice an alien must show that his proceeding contained errors so fundamental that he might have been deported in error." Fernandez-Antonia, 278 F.3d at 159.
We turn first to the nature of the error in Copeland's deportation hearing. There is a disagreement among the circuits over whether the failure to inform an alien of his right to seek discretionary relief can ever be a fundamental procedural error. The Fifth Circuit has stated that "[b]ecause eligibility for § 212(c) relief is not a liberty or property interest warranting due process protection, we hold that the [IJ's] error in failing to explain [the alien's] eligibility does not rise to the level of fundamental unfairness," United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir.2002), cert. denied, 537 U.S. 1135, 123 S.Ct. 922, 154 L.Ed.2d 827 (2003), and the majority of circuits that have addressed the issue agree. See United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.2004) (en banc) ("there is no constitutional right to be informed of the existence of discretionary relief for which a potential deportee might be eligible"); Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir.2002) (aliens have "no protected liberty or property interest in discretionary 212(c) relief" because such relief is discretionary); Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir.2002) ("Under our precedent, an alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief."); Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir.2001) ("`Eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General.'") (quoting Ashki v. INS, 233 F.3d 913, 921 (6th Cir.2000) (quoting in turn Appiah v. INS, 202 F.3d 704, 709 (4th Cir.2000))).
We believe that a failure to advise a potential deportee of a right to seek Section 212(c) relief can, if prejudicial, be fundamentally unfair within the meaning of Section 1326(d)(3). To be sure, relief under Section 212(c) is not constitutionally mandated and is discretionary. It does not follow, however, that where an alien is erroneously denied information regarding the right to seek such relief, and the erroneous denial of that information results in a deportation that likely would have been avoided if the alien was properly informed, such error is not fundamentally unfair within the meaning of Section 1326(d)(3).
An error in a ruling by a lower tribunal is generally not deemed fundamental when a remedy was available on appeal but no appeal was taken. See Alfano v. United States, 555 F.2d 1128, 1130 (2d Cir.1977) (explaining in the context of a habeas petition that "`nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.'") (quoting Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). However, a ruling by an IJ that misleads an alien into believing that no relief exists falls into a different category because of the special duties of an IJ to aliens. "[T]he IJ ... unlike an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record." Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002); Secaida-Rosales v. INS, 331 F.3d 297, 306 (2d Cir.2003) ("IJ has an affirmative obligation to help establish and develop the record" in asylum proceedings involving pro se aliens); 8 U.S.C. § 1229a(b)(1) ("The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses."). We have noted that an administrative law judge has special duties in the "non-adversarial context of social security cases," and we have quoted with approval the Ninth Circuit's holding that an IJ's duty to develop the record in an adversarial immigration proceeding is "`analogous to that of an administrative law judge in [a] social security [hearing],'" especially where an alien is unrepresented by counsel. Yang, 277 F.3d at 162 n. 3 (quoting Jacinto v. INS, 208 F.3d 725, 732-33 (9th Cir.2000)). Given that IJs have a duty to develop the administrative record, and that many aliens are uncounselled, our removal system relies on IJs to explain the law accurately to pro se aliens. Otherwise, such aliens would have no way of knowing what information was relevant to their cases and would be practically foreclosed from making a case against removal.
The cases holding that prejudicial misinformation about Section 212(c) relief is never a fundamental procedural error rely upon a property rights analysis that is utilized most frequently in Section 1983 cases. See, e.g., McMenemy v. City of Rochester, 241 F.3d 279, 286 (2d Cir.2001) (explaining that to prevail on a Section 1983 claim, a plaintiff must show that he "possessed a protected liberty or property interest, and that he was deprived of that
Critical to our reasoning, of course, is the distinction between a right to seek relief and the right to that relief itself, although often the concepts overlap as a practical matter. The decisions holding that a failure to inform an alien about Section 212(c) relief cannot be a fundamental error collapse this distinction and incorrectly assume that, because the grant of Section 212(c) relief is itself discretionary, the denial of a Section 212(c) hearing cannot be a fundamental procedural error. See, e.g., Lopez-Ortiz, 313 F.3d at 231 ("denial [of Section 212(c) relief] does not implicate the Due Process clause" and therefore "eligibility for § 212(c) relief is not a liberty or property interest warranting due process protection"). However, as the Supreme Court noted in St. Cyr,
533 U.S. at 307-08, 121 S.Ct. 2271 (quoting Jay v. Boyd, 351 U.S. 345, 353-54, 76 S.Ct. 919, 100 L.Ed. 1242 (1956) (internal citation omitted)).
The issue, therefore, is not whether Section 212(c) relief is constitutionally mandated, but whether a denial of an established right to be informed of the possibility of such relief can, if prejudicial, be a fundamental procedural error. We believe that it can. Deportation usually has very serious consequences, see, e.g., Fong
St. Cyr also recognized the importance of being able to seek such relief and that the right to seek such relief, even if discretionary, cannot be lightly revoked. In the context of its retroactivity discussion, the Court noted that "IIRIRA's elimination of any possibility of § 212(c) relief for people who entered plea agreements with the expectation that they would be eligible for such relief clearly `attaches a new disability, in respect to transactions or considerations already past.'" St. Cyr, 533 U.S. at 321, 121 S.Ct. 2271 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (some internal quotation marks omitted); see also id. at 323, 121 S.Ct. 2271 ("preserving the possibility of [Section 212(c)] relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial").
Moreover, in Perez, we held a deportation proceeding to be fundamentally unfair when the erroneous advice of counsel caused an alien who was "eligible for § 212(c) relief and could have made a strong showing in support of such relief" to fail to apply for waiver. 330 F.3d at 104. While different, the circumstances here are analogous with regard to the importance of being able to seek Section 212(c) relief. We therefore conclude that the IJ's error was of a fundamental nature.
We turn now to whether that error prejudiced Copeland. Prejudice is shown where "defects in the deportation proceedings may well have resulted in a deportation that would not otherwise have occurred." Fernandez-Antonia, 278 F.3d at 159 (internal quotation marks and citation omitted). In other words, Copeland must show that he likely would have been granted Section 212(c) relief if he had obtained a hearing. We have not decided what level of proof is required for a showing that an alien likely would not have been removed, but we have flirted with two possible standards: a "reasonable likelihood" and a "plausible showing." Id. at 159-60 (internal quotation marks omitted).
In our view, however, the appropriate test for prejudice is the one used to decide ineffective assistance of counsel claims, namely, prejudice is shown where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland v. Washington 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This analogy is close-fitting because the denial of an opportunity to apply for Section 212(c) relief will generally be the result either of a lawyer having caused an eligible alien to fail to apply, United States v. Perez, 330 F.3d 97, 104 (2d Cir.2003), or of an IJ, owing special duties to a pro se alien, having failed to give notice of such an opportunity, see supra at 63-64. In the latter case, therefore, prejudice is shown where there is a reasonable probability that, but for the IJ's unprofessional errors, the alien would have been granted Section 212(c) relief.
Resolution of the prejudice issue in the Section 1326(d)(3) context is somewhat akin to a trial within a trial. The district
A Section 212(c) determination involves a balancing of "the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country." Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978); accord Douglas v. INS, 28 F.3d 241, 243-44 (2d Cir.1994). Adverse factors include: the nature and circumstances of the exclusion ground at issue, the presence of additional immigration law violations, the existence of a criminal record and its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident. Marin, 16 I. & N. Dec. at 584-85. Favorable considerations include: family ties within this country, residence of long duration in this country, arrival in the country at a young age, evidence of hardship to the alien and the alien's family upon deportation, Armed Forces service, employment history, community service, property or business ties, evidence attesting to good character, and, in the case of one convicted of criminal conduct, proof of genuine rehabilitation. Id.
"Where ... an alien is deportable by reason of two narcotics convictions, the alien must make a showing of unusual or outstanding countervailing equities to obtain a waiver of deportation." Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995) (citing Correa v. Thornburgh, 901 F.2d 1166, 1170 (2d Cir.1990)). However, the Supreme Court noted in St. Cyr that at the time of its decision, over half of all Section 212(c) applications had been granted. 533 U.S. at 296 n. 5, 121 S.Ct. 2271.
Because the parties to the present matter could not have anticipated the precise nature of our decision, it would not be appropriate for us to review the district court's finding of prejudice on the present record. Specifically, although the record includes comprehensive evidence of Copeland's criminal history, there is little detail about Copeland's family relationships or other potentially favorable considerations. Such evidence would be essential to any finding that Copeland was prejudiced by the lack of a Section 212(c) hearing, given the fact that Copeland's criminal record is quite serious. Moreover, the district court's conclusion as to prejudice was based on an incomplete review of the relevant factors. Not only did the court lack the testimony just discussed, but it also declined to consider the full extent of Copeland's criminal record.
For the foregoing reasons, we hold that: (i) Copeland exhausted his administrative remedies by filing a motion to reopen and appealing the denial of that motion; (ii) Copeland was denied the opportunity for judicial review because direct review was unavailable and he never had a realistic opportunity to seek habeas review; and (iii) the IJ's failure to inform Copeland of his right to seek discretionary relief was a procedural error sufficient to render the deportation order fundamentally unfair if that failure prejudiced Copeland. Because the record is inadequate with regard to whether Copeland was prejudiced, we vacate the dismissal of the indictment and remand to the district court for an evidentiary hearing and findings on that question.