GRUENDER, Circuit Judge.
Ernesto Garcia Rodriguez appeals his conviction for illegal re-entry from Mexico in violation of 8 U.S.C. § 1326. Rodriguez collaterally attacks the prior removal order upon which his conviction is based. For the reasons discussed below, we affirm the judgment of the district court.
Rodriguez, a native and citizen of Mexico, became a legal permanent resident of the United States in 1990. In April 1997, he was arrested in California on a felony charge of driving under the influence of alcohol or drugs.
On January 4, 1999, Rodriguez appeared before an immigration judge ("IJ") for a deportation hearing. The IJ advised him of his right to counsel and his right to appeal the decision of the IJ to the Board of Immigration Appeals (BIA). The IJ ordered Rodriguez to be deported to Mexico as an aggravated felon. Rodriguez asked the IJ, "If I were to appeal, what are my possibilities of winning?" The IJ replied,
Rodriguez then asked how long an appeal would take. The IJ responded
In May 2001, Rodriguez illegally re-entered the United States. In July 2003, he was discovered in Iowa due to an arrest for operating a motor vehicle while intoxicated or drugged. Rodriguez was indicted on one count of illegal re-entry in violation of 8 U.S.C. § 1326. He agreed to a bench trial pursuant to Fed.R.Crim.P. 23(a). At trial, Rodriguez collaterally attacked his 1999 deportation order, claiming a due process defect because the IJ allegedly misinformed him in a way that led him not to appeal the order. The district court found that no defect prevented Rodriguez from appealing the 1999 deportation order. Consequently, the district court pronounced Rodriguez guilty of illegal re-entry. He was sentenced to 30 months' imprisonment. Rodriguez appeals, arguing that the district court erred in rejecting his collateral attack on the 1999 deportation order.
We review the district court's findings of fact for clear error, but we review de novo whether those facts establish a due process defect. United States v. Torres-Sanchez, 68 F.3d 227, 229 (8th Cir.1995). An alien's ability to collaterally attack a deportation order in a criminal proceeding under 8 U.S.C. § 1326 is governed by subsection (d) of that statute:
8 U.S.C. § 1326(d).
We have recognized subsection (d) as a codification of United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), which established due process requirements for the application of § 1326. United States v. Mendez-Morales, 384 F.3d 927, 928-29 (8th Cir.2004). Under Mendoza-Lopez, consistent with § 1326(d), an alien must show that "(1) an error in the deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, and (2) the error functionally deprived the alien of the right to judicial review." Mendez-Morales, 384 F.3d at
Rodriguez argues that he was deprived of judicial review. He contends he waived his right to appeal to the BIA only after he was "materially misinformed" by the IJ that the appeals court would most likely consider drunk driving to be an aggravated felony. Subsequent Ninth Circuit and Supreme Court rulings held that drunk driving is not a crime of violence and thus not an aggravated felony for immigration law purposes. See Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001).
Rodriguez relies upon Mendoza-Lopez, in which an IJ failed to adequately inform aliens of their eligibility for suspension of deportation before accepting the aliens' waiver of their right to appeal a deportation order. 481 U.S. at 831 & n. 3, 107 S.Ct. 2148. The aliens were later charged under § 1326 with illegal re-entry, and they collaterally attacked the deportation order. The Supreme Court held that "[b]ecause the waivers of their rights to appeal were not considered or intelligent, [the aliens] were deprived of judicial review of their deportation proceeding." Id. at 840, 107 S.Ct. 2148.
The IJ's statements to Rodriguez regarding his chances on appeal do not implicate the holding of Mendoza-Lopez. The aliens in Mendoza-Lopez could not make a considered and intelligent waiver of their right to appeal because they were not adequately informed of their eligibility for an existing form of statutory relief. In contrast, Rodriguez argues only that the IJ did not adequately inform him of a future change in the interpretation of the law. A subsequent change in the law does not render Rodriguez's waiver of his right to appeal "not considered or intelligent." Id. at 840, 107 S.Ct. 2148; see United States v. Killgo, 397 F.3d 628, 629 n. 2 (8th Cir.2005) (explaining that a failure to anticipate a change in the law does not place that change outside the scope of a waiver of the right to appeal).
The record demonstrates that Rodriguez was aware of and understood his right to appeal.
Because Rodriguez does not meet the requirements to collaterally attack his 1999 deportation order under 8 U.S.C. § 1326(d), we affirm his conviction for illegal re-entry from Mexico.
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. Having carefully reviewed the record, I conclude that Rodriguez did not make a knowing and intelligent waiver of his right to appeal. The IJ's acceptance of his waiver therefore resulted in a deprivation of Rodriguez's right to judicial review. I arrive at this conclusion for two reasons.
First, our court has unambiguously held that an alien's waiver of his appellate rights cannot be knowing or intelligent if the alien is not advised "of his right to appeal the administrative decision in federal court." United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir.1989). At Rogriguez's deportation hearing, the IJ advised the respondents as a group that they would have a right to appeal to the BIA if they disagreed with his decision. The IJ also asked Rodriguez individually if he wanted to reserve his right to appeal or accept the decision made by the IJ. At no point in the hearing, however, did the IJ inform Rodriguez or the other respondents that, they would have the right to judicial review, as opposed to administrative review.
The failure of the IJ to inform Rodriguez of his right to appeal to the federal courts before accepting his waiver of his right to appeal was sufficient in itself to deprive Rodriguez of an opportunity for meaningful review. This omission is more serious because the IJ's other comments suggest that he could be relied upon to provide a comprehensive assessment of the respondent aliens' legal rights and options. In his initial remarks to the respondent aliens, the IJ clarified:
Later, addressing Rodriguez's request for voluntary departure, he stated: "You are not eligible for anything, not a single
The IJ's comments were based on the assumption that Rodriguez's conviction for driving under the influence of alcohol was an aggravated felony. Because this conclusion was consistent with recent BIA determinations, the IJ also advised Rodriguez that any appeal was not likely to succeed. By omitting any mention of a potential appeal to the federal courts, the IJ created the impression that the issue was firmly settled, when, in fact, the Ninth Circuit had not yet addressed the matter. The Ninth Circuit and Supreme Court subsequently determined that driving under the influence was not an aggravated felony. Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.2001). This is more than a mere failure to anticipate a future change in the interpretation of the law;
In the instant case, by contrast, Rodriguez demonstrated no confusion about the deportation order and its consequences. At a minimum, he was aware that he had a right to challenge that order with an appeal to the BIA, and he knowingly waived that right. No right to petition for review in federal circuit court arises unless an alien first appeals to the BIA. See 8 U.S.C. § 1252(d)(1). Unlike Santos-Vanegas, Rodriguez chose to waive his right of appeal.