2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 2408

_____________ UNITED STATES OF AMERICA

v. RODERICK RANDALL OUTRAM, Appellant

______________ APPEAL FROM THE UNITED S TATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Crim. Action No. 1:03

- CR

- 00 115

- 00 1) District Judge: Honorable Chief Judge Yvette Kane

______________ Argued : April 2 6 , 2011

______________ Before: SLOVITER, GREENAWAY, JR. , Circuit Ju dges , and POLLAK , District Judge (Opinion Filed: September 26, 2011 )

______________ OPINION

______________ GREENAWAY, JR., Circuit Judge

Honorable Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.2

R oderick Outram (“Outram” or “Appellant”) appeals the District Court‟s denia l of
his habeas corpus petition , pursuant to 28 U.S.C. § 2255. Outram claims that he received ineffective assistance of counsel during his § 1326 guilty plea because his counsel did not

contest an in absentia deportation order. Outram fails to meet the requirements of 8 U.S.C. § 1326 (d). For the reasons explained below, we will affir m. I. BACKGROUND We write primarily for the parties and recount only the essential facts.
Outram is a native and citizen of Barbados. He came to the United States on an immigrant visa April 8, 1978 , and was a lawful, permanent resident

. In November 1990,
Outram was convicted of drug possession and incarcerated in a New York c orrectional
f acility. Due to his status as a non

- citizen offender, Immigration officials began investigating Outram‟s eligibility for deportati on. In an Order to Show Cause dated April 24, 1993, Outram was charged with deportability for having been convicted of a crime.
Outram‟s hearing was scheduled for December 14, 1993 . His a ttorney , Montgomery R. Carlin (“Carlin”) , was notified. The INS s ent a notice to Carlin by certified mail received on September 23, 1993, but did not inform Outram directly. 1 Carlin claimed he sent two
notices to Outram

— one on September 27 , 1993, and the other on December 8 , 19 93.
H e received no response . Outram de nies ever receiving a notice other than the one that arrived on the morning of the hearing ( December 14, 1993)

. Outram asserts that, due to

1 Neither part y claims that the INS was obligated to inform Outram directly.3

the short notice, he arrived a t the c ourthouse two hours late to discover that the Immigration Judge (“IJ”) had ent ered a deportation order against him in absentia

. Carlin did not appear at all. 2
Carlin moved to reopen his deportation proceedings, claiming that Outram did not receive notice from his counsel until the morning of the deportation hearing ; as a
consequ ence , Outram arrived late to the courthouse to discover that his deportation had
been ordered. By order dated March 28, 1994, the IJ rejected Outram‟s arguments, stating that the purported lack of notice did not constitute exceptional circumstances that

w ould excuse his absence and thus compel a hearing. Carlin then appealed to the Board of Immigration Appeals (“ B IA ” or “Board”)

. He made two arguments on Outram‟s behalf

— the improper notice claim and that the complete denial of a rehearing was a drastica lly disproportionate penalty for missing a
court date. The BIA affirmed the IJ‟s ruling denying the motion to reopen. Outram was subsequently deported to Barbados on August 4, 1994. In November 2002, the INS received word from the Dauphin County Distric t Attorney‟s office that one “Sean Brewster , ” a defendant on trial for drug charges in Pennsylvania , was in fact Outram. Outram was convicted and on November 1, 2002, received a sentence of three to six years. On May 14, 2003, a grand jury returned a on e -

2 Carlin filed a timely appeal to reopen Outram‟s deportation proceedings based on improper not ice.4

count indictment charging Outram with unlawful reentry of a previously deported alien after a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326 (a) and (b)(2)

. 3
The indictment was predicated on the 1993 in absentia deportation order

. Ansar Ahmad (“Ahmad”), a privately re tained attorney, represented Outram when he pled guilty to the illegal reentry charge in federal court in January 2004 , pursuant to a written plea agreement

. Ahmad failed to challenge the validity of the 1993 in absen tia deportation order underlying the § 1326 violation. On April 29, 2004 , the District Court imposed a sentence of 57 month s , to run consecutive to Outram‟s state sentence. Outram appeal ed his conviction to this Court

.

3 The statute reads, in relevant part (a) In general Subject to subsection (b) of this section, any alien who

-- (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, *** shall be fined under Title 18, or imprisoned not more than 2 years, or both. (b) Criminal penalties for reentry of certain removed aliens Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection

-- *** (2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, impriso ned not more than 20 years, or both; 8 U.S.C. § 1326.5

O utram claimed his guilty plea w as not voluntary and knowing due to Ahmad‟s inadequate representation in the District Court. In an unpublished opinion , United States
v. Outram , 132 F . App‟x 412 (3d Cir. 2005) (“ Outram I ”), this Court rejected that argument, stating that Outram assured t he District Court that he understood the charges
and had entered the plea agreement willful ly

. Th e panel affirmed the conviction , but remanded to the District Court for resentencing in light of the Supreme Court ‟s holding in
United States v. Booker , 543 U .S. 220 (2005)

. On remand, Ahmad challenged the validity of the 1993 in absentia deportation order for the first time, arguing for a downward departure from the original sentence. Th e District Court re imposed the 57

- month sentence on August 2, 2005.
Ou tram appealed his sentence. Ahmad argued , first , that Outram‟s sentence was substantively unreasonable because it violated his due process rights. He then challenged
the 1993 in absentia deportation order as an improper predicate for the illegal reentry charge because Outram‟s claim of inadequate notice in that matter allegedly was not accorded due weight by the IJ. Ahmad, however, did not raise Carlin‟s ineffective representation in the deportation proceeding as a ground for reconsideration. In 2006, a p anel of this C ourt affir med the District Court ‟s re sentence in an unpublished opinion

. United States v. Outram , 199 F . App‟x 138 (3d Cir. 2006) (“ Outram II ”). First, the p anel ruled that Outram‟s sentence was substantively
reasonable. Second , the pan el rejected the argument challenging the 1993 in absentia6

order

. The panel held that Outram‟s due process argument must fail because he had neglected to raise the issue at the outset of his appeals, and was foreclosed from doing so at that stage in the ap p eals process. Even if the argumen t had not been foreclosed, the

c ourt foun d that Outram‟s due process claim had no merit because he did not fulfill the § 1326(d) requirements based on his failure to appear at his deportation hearing. 4
On June 2 1, 2007 , Outram filed a pro se motion in the District Court to v acate , set aside, or correct his 2004 sentence, pursuant to 28 U.S.C. § 2255. Outram challenged the validity of his 2004 illegal reentry conviction in violation of 8 U.S.C. § 1326(a) and (b)(2). H e asserted that he was denied effective assistance of counsel when Ahmad failed to collaterally challenge the 1993 in absentia order before advising him to enter a guilty plea. Outram argued that had counsel attacked the order at that critical point, the illegal reentry indictment would have been dis miss ed.

4 Pursuant to 8 U.S.C. §1326 , an alien in a criminal proceeding wishing to collaterally attack a previous deportation order or proceeding may only challenge the validity of the resulting deportation or der if the alien demonstrates that:

1. the alien 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 f or judicial review; and 3. the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d).7

In a Report and Recommendation (“R & R”) dated December 16, 2008, the Magistrate Judge recommended that Outram‟s motion be denied without a hearing. He
relied on our statement in Outram II that the 1 993 in absentia order was not fundamentally unfair. On April 16, 2010, the District Court adopted the Magi strate Judge‟s R & R in denying Outram‟s request for a C ertificate of Appealability (“C OA ”)

. Outram filed a timely notice of appeal on May 12, 2010. A petition for COA followed on June 10, 2010. By order dated October 15, 2010, this Court issued a COA to determine whether Outram was denied effective assistance of counsel when federal counsel failed to challenge the 1993 in absentia deportati on order that was the predicate
for h is 2004 illegal reentry conviction.

II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction over this case , pursuant to 28 U. S.C. § 2255

. This Court has jurisdiction , pursuant to 28 U.S.C. § § 1291 , 2253, and 2255. Because this issue is purely legal, our review is plenary. United States v. Otero , 502 F.3d 331, 334 (3d Cir. 2007).
III. ANALYSIS Outram is entitled to §2255 relief if he was denied effective assistan ce of counsel
b ecause of Ahmad ‟s failur e to challenge the 1993 in absentia deportation order that was the predicate for his illegal reentry conviction. Under Strickland v. Washington , 466 U.S. 668 (1984), an individual is denied effective assistance of counsel if he can show :8 First,

. . . that counsel‟ s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second,

. . . that the deficient performance prejudiced the d efense.

Id. at 687. 5 To establish deficiency in counsel performance, a defendant must show that counsel‟s performance “fell below an objective standard of reasonableness.” Id. at 688. There is a strong presumption that counsel‟s performance is within the wide range of
reasonable performance

. Id. A strategic choice made after a thorough investigation is “virtually unchallengeable.” Id. at 690.
T o show prejudice i n the context of a guilty plea, such as Outram‟s , “ the defenda nt must show that there is a reasonable probability that, but for counsel‟s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). “[W]here the alleged error of counsel is a failure to advise the
defendant of a potential affirmative defense to the crime charged, the resolution of the „prejudice‟ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Id. Outram‟s ineffective assistance of counsel claim is based o n Ahmad‟s failure to

contest the 199 3 in absentia order. The resolution of our inquiry into ineffective
assistance of counsel thus depends largely on whether an attempt to challenge the 1993

5 Our analysis of the deficiency and prejudice prongs does not have to proceed in any specific order; it is likely often “easier to dispose of an ineffectiveness c laim on the ground of lack of sufficient prejudice.” Strickland , 466 U.S. at 697.9

order would have been successful. See Id. at 60. Only i f such a challenge would have
been successful will we inquire whether “there is a reasonable probability that, but for counsel‟s errors, [Outram] would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.
A

. Collateral Attack on Unde rlying Removal Order
A n alien subject to illegal re

- entry p rosecution under 8 U.S.C. § 1326 may challenge the underlying removal order under certain circumstances

. United States v.
Charleswell , 456 F.3d 347 , 351 (3d Cir. 2006). As noted, (1) the alien mu st have exhausted administrative remedies to seek relief against the order; (2) the deportation proceedings at which the order was issued must have improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order must ha ve been fundamentally unfair. See 8 U.S.C. § 1326(d). 6

6 In Outram II , we held that Outram was foreclosed from collaterally attacking his 1993 deportation order under United States v. Pultrone , 241 F.3d 306, 307

- 08 (3d Cir. 2001 ) because he failed to raise that issue in his original appeal. We stated that his challenge also failed on the merits because the § 1326(d) requirements were not met. Our discussion of the merits, however, is dicta and is not binding. See Kool, Mann, C offee & Co. v. Coffey , 300 F.3d 340, 355 (3d Cir. 2002) (after holding that defendants received inadequate notice and remanding on that basis, district court‟s comments about the merits of the case were “simply precatory and not necessary to the actual hol ding of the case. . . . Accordingly, they [we]re properly considered dicta.”) (citing Gov‟t of the Virgin Islands v. Marsham , 293 F.3d 114 (3d Cir. 2002)). It is established that such dicta is not controlling

. S ee Calhoun v. Yamaha Motor Corp., U.S.A. , 2 16 F.3d 338, 344 n.9 (3d Cir. 2000) Moreover, the District Court did not treat Outram II as binding. The District Court, instead, merely agreed that Outram could not meet the requirements for collateral attack. (App. at 11 (citing Outram II )) (“ reject [i ng] Petitioner‟s arguments to the10

We have held that “all three [requirements] must be met before an alien will be permitted to mount a collateral challenge to the underlying removal order.” United States
v. Torres , 383 F.3d 92, 99 (3d Cir. 2004). Thus, t o show that challenging the validity of the deportation order would likely have been successful, Outram must show that he would have met the three § 1326 (d) requirements

. As explained below, we find that Outram would not have met a t least one of the § 1326(d) requirements, and therefore, his claim must fail because f ailure to challenge the
1993 in absentia deportation order could not have prejudiced Outram. We need not consider whether Outram has satisfied the first and third § 132 6 (d) elements because we conclude that he has not demonstrated that he was deprived of the opportunity for judicial review of his deportation order.
i. Deprivation of Opportunity for Judicial Review
Outram claims that hi s 1993 proceedings deprived him of the opportunity for judicial review because , allegedly, (1) he was denied effective immigration counsel ; and (2) the IJ improperly treated his reasonable tardiness as a failure to appear, denying him due process.

a. Ineffective Assistance of Counsel
Outram‟s first argument regarding deprivation of immigration counsel relies on

contrary, which were also rejected in dicta by the Third Circuit in denying his direct a ppeal of this conviction. ”)11

the assumption that a showing of ineffective assistance of counsel in the underlying deportation proceeding is sufficient to show a deprivation of the opportunity for judicia l review under § 1326. We have not so held. Outram cites our decision Richardson v.
United States , 558 F.3d 216 ( 3d Cir. 2009), to support the proposition that a “lack of counsel to represent [an] alien in removal proceedings „has been found to deprive t he alien of meaningful judicial review.‟” (Appellant‟s Br. 26

- 27 (quoting Richardson , 558 F.3d at 224).) The actual holding from the quoted portion of Richardson is that “a failure to notify counsel that counsel‟s client is facing removal proceedings has been found to deprive the represented alien of meaningful judicial review.” 558 F.3d at 224 . This is a different proposition. Outram does not allege that his counsel was not notified that he faced removal proceedings. Richardson is inapposite.
The other counseled case up on which Outram relies for this proposition is United
States v. Perez , 330 F.3 d 97, 101

- 02 (2d Cir. 2003) , which is not binding on this C ourt

. In Perez , the petitioner collaterally attacked his underlying deportation order. The cou rt , direct ly review ing the district court‟s grant of Perez‟s mo tion to dismiss the indictment for illegal reentry , concluded that immigration counsel‟s failure to file an application for 212(c) discretionary relief from deportation was ineffective assista nce of counsel and deprived Perez of the opportunity for administrative review of his deportation in violation of due process

.12

Even if we were to adopt the Second Circuit‟s conclusion that failure to file an application for 212(c) relief can constitute i neffective assistance of counsel and deprive an alien of judicial review, Perez is distinguishable on its facts. Perez‟s counsel stated to the IJ that he intended to seek relief under 212(c) . He was then directed by the IJ to file an application by a cer tain date , after which Perez would be deported , if he failed to do so

or to appear for the scheduled hearing. Although Carlin did not file a motion pursuant to 212(c), Outram has not made a comparable allegation that Carlin represented to the IJ or the B IA that he would seek 212(c) relief , and then failed to do so

. 7 Additionally, the court noted that “by the time any judicial remedy might have been pursued, Perez had already been deported,” and thus “the federal courts no longer had jurisdiction to direc tly review his deportation order.” Perez , 330 F.3d at 101 n.3, 103 n.5. In the pro se context, where failure to notify an alien of the right to appeal has been found to be a deprivation of judicial review, the circumstances are also distinguishable from Outram‟s allegations. Although what constitutes an “effective denial of judicial review” has not been “definitively determined ,” Charleswell , 456 F.3d

7 This is not to say that Carlin is not without faul t. More competent counsel would have ensured that his client knew about the scheduled removal hearing in advance of the morning of the scheduled appearance, and attended the hearing to preserve any record in his client‟s stead. However, in this case, any alleged ineffectiveness on the part of Carlin did not deprive Outram of judicial review. Outram had the opportunity to seek review of the in absentia deportation order, which the IJ, the BIA, and this C ourt determined did not deprive him of due process.13

at 355, we have recognized that , in some circumstances, an IJ‟s fai lure to adequately explain to a n ali en his opportunity to appeal results in an uninformed waiver o f that right because it deprives the individual of judicial review. Id. ( collateral attack “could be made by aliens who had effectively been denied direct appeal because they were not given
pro per notice of the right to appeal.” ) (citing United States v. Fares , 978 F.2d 52, 56 (2d Cir. 1992) ) (internal quotation marks omitted)

. In Charleswell , we held that , despite a “monumental error” in a deportation hearing, the pro se defendant was not depr ived of the opportunity for judicial review because he had an opportunity to appeal the deportation order . 456 F.3d at 353

. 8 On
direct review of Charleswell‟s conviction for illegal re entry under 8 U.S.C. § 1326 , we found that, regarding his opportunity for judicial review, “there [wa]s no indication
whatsoever that Charleswell was effect ively precluded from appealing th [ e] clearly adverse decision. He was told he had the right to appeal and does not claim that he failed to understand that right.” Id. By contrast , reviewing Charleswell‟s collateral challenge to his later 2001 reinstatement order of the same deportation, we found that he was denied the opportunity
for judicial review of the reinstatement order

. Ch arleswell “specifically argue [d] that

8 The IJ in Charleswell mistakenly believed that the U nited States Virgin Islands were not a United States territory and subsequently found Charleswell deportable to the British Virgin Islands. Charleswell did not appeal the deportation order , was deported to the British Virgin Islands, and reentered the Uni ted States.14

[ t]he 2001 reinstatement of the deportation order also violated [his] rights because he was never informed of his right to appeal to a fed eral court of appeals, and the reinstatement

statute ought not be applied retroactively to [his] conduc t.” Id. at 354 (internal citations omitted)

. We found that where an alien is misled to believe that he has no opportunity for judicial review, the lack of an affirmative notice of the right to an appeal may combine to constitute a denial of the meaningful opportunity fo r judicial review, satisfying both § 1326(d)(2) and United States v. Mendoza

- Lopez , 481 U.S. 828 (1987)

. Id. at 357 ( failure to notify Charleswell of his right to appeal, when combined with
mislea ding language in the r einstatement forms, deprived him of t he opportunity f or judicial review)

. E ven if we were to find the notice of appeal inquiry relevant in the counseled
context, we need not inquire here because Outram m akes no claim that he did not have notice of his right to appeal his deportation order or of the availability of judicial review.
Carlin , Outram‟s immigration counsel , filed a motion to reopen the deportation proceedings which the IJ denied. Carlin appea led that decision to the BIA. Outram doe s
not allege that he was prevented from obtainin g judicial review of the BIA‟s order denying the motion to reopen, that the decision to appeal from that order to this C ourt, as permitted by statute, was prevented in any way ; or that Carlin represented to the Board15

that he would appeal its decision and d id not

. 9 Outram has made no allegation that he

was deprived of the opportunity to appeal the IJ ‟s and BIA‟s denial of his motion to
reopen ; he merely failed to pursue that course of action.
b. Failure to Appear as Denial of Due Process
Outram also clai ms that by treating his lateness as a failure to appear, the IJ denied him the opportunity for judicial review under §1326(d) because this treatment amounted

to a denial of due process . Outram primarily relies on our decision in Ca b r era - Perez v.
Gonzalez , 456 F.3d 109 (3d Cir. 2006), where we did not address § 1326 . In that case,

we rev ersed t h e BIA‟s denial of Cabrera ‟s motion to reopen his in absentia removal . We
found th at the IJ and BIA abused their discretion in denying the motion. The IJ‟s

treatme nt of Cabrera‟s arrival fifteen to twenty minutes late as a failure to appear , where there had been no prior instances of tardiness and the IJ wa s either still on the bench or recently retired and close by , violated the alien‟s rights to due process

. Id. at 116

. In Cabrera

- Perez , we relied on decisions in which treat ment of fifteen to twenty
minute tardiness as failures to appear were held to violate a liens‟ due process rights

. S ee Alarcon

- Chavez v. Gonzales , 403 F.3d 343, 345

- 46 (5th Cir. 2005); Jereza no v. INS , 169

9 At the time of Outram‟s 1993 deportation hearing, 8 U.S.C. § 1105(a) provided for federal appellate jurisdiction of final orders of deportation, pursuant to administrative proceedings under 8 § 1252(b). See Marrero v. I.N.S. , 990 F.2d 772 (3d Cir. 1993); s ee 8 U.S.C. § 1252b(c)(4)(1994) (judicial review of order entered in absentia “ confined to the issues of the validity of the notice provided to the alie n, to the reasons for the alien‟ s not16

F.3d 613, 615 (9th Cir. 1999); see also Nazarova v. INS , 171 F.3d 478 (7th Cir. 1999) ( where alien arrived at removal hearing two hours late because she was waiting for translator, the court found a due process violation because alien had no t received a meaningful opportunity to be heard)

. Neither our own precedent in Cabrera

- Perez , nor the cases it relie s upon specifically address whether the appellants had been deprived of an opportunity for judicial review under § 1326 (d) by virtue of th e treatment of their tardiness as failure s to
appear. Thus, e ven if the IJ‟s treatment of Outram‟s two

- hour tardiness as a failure to
appear were considered a due process violation on its own , the case law do es not su pport a finding of a deprivation of ju dicial review under § 1326(d).
Because we find that Outram did not establish that an attempt to challenge the
1993 in absentia deportation order would have been successful, there is no prejudice and we need not inquire into whether Outram‟s counsel‟s perfo rmance fell below an objective
standard of reasonableness. Hill , 474 U.S. at 59

. IV. CONCLUSION For the reasons explained above, we find that Outram has not demonstrated
ineffective assistance of counsel on the basis that his federal counsel failed to c hallenge
the 1993 in absentia deportation order because he ha s not established that he meets the §

attending the proceeding, and to whether or not clear, convincing, and unequivocal evidence of deportability has been established .”)17

1 326(d) requirement s
. We will affirm the District Court‟s denial of Outram‟s § 2255
motion

.1

Pollak, J., D issenting
As the court recognizes, Outram’s claim that Ansar Ahmad provided ineffective assistance of counsel while representing Outram on the 2004 illegal reentry charge hinges upon whether Ahmad would hav e been able to successfully collaterally attack the 1993 in
absentia deportation order. According to Out ram, the 1993 order was entered in
absentia because his then

- attorney, Montgomery Carlin, failed to fulfill some of the most basic duties of immigrati on counsel: providing timely notice to his client of an upcoming hearing at which the c lient’s presence was required , and actually showing up at that hearing. We do not know whether Carlin did, in fact, fail so egregiously in his representation of Outram, because Outram has, up to now, been denied the opportunity to prove his allegations through an evidentiary hearing

. 1
The court declines to remand this case for an evidentiary hearing on the ground that Outram cannot succeed in collaterally attacking the deportation order. Under 8 U.S.C. § 1326(d), an alien seeking to make such a collateral attack must show that (1) he “exhausted any administrative remedies that may have been available”; (2) “the deportation proceedings at which the order was issued impr operly deprived [him] of the opportunity for judicial review”; and (3) “the entry of the order was fundamentally

1 It is worth noting, however, that in the only court of appeals case that mentions Montgomery Carlin, he was found to have provided ineffective assistance of counsel in an immi gration matter. See Rabiu v. INS , 41 F.3d 879 , 883 (2d Cir. 1994) (holding that Carlin provided ineffective assistance by failing to file a section 212(c) waiver application on behalf of an alien who was eligible for and likely to receive such a waiver).2

unfair.” According to t he court , an alien cannot satisfy the second of these requirements by showing that he received ineffective assistance o f counsel in the deportation proceeding. T his narrow construction of the “deprivation of judicial review” requirement
i s not required by our precedent , and has been rightly rejected by one of our sister
circuits.
The court’s opinion over

- reads our decis ion in United States v. Charleswell , 456 F.3d 347 (3d Cir. 2006). Charleswell involved a 1991 deportation hearing that the alien , unaccompanied by counsel, actually attended . In the hearing, the immigration judge (“IJ”) made a serious error of law

— based upon his mistaken belief that the United States Virgin Islands were not a United States territory

— in the course of issuing an order deporting Charleswell. Id. at 353 & n.5. We found that Charleswell was not denied the opportunity for judicial review beca use he was present at the hearing and “was told he had the right to appeal.” Id. at 353. Our decision in Charleswell also addressed a reinstatement order issued in 2001. We found that the 2001 order effectively denied Charleswell the opportunity for jud icial review because it did not notify him of his right to a direct appeal and also contained misleading language. Id. at 358.
Charleswell did not confront the issue presented in this case: whether an alien
who is represented by counsel and who misses his deportation hearing as a result of his counsel’s failure to provide him with notice was depr ived of an opportunity for judicial
review. Nowhere in Charleswell did we hold that an alien can only be deprived of judicial review through an immigration jud ge ’s failure to provide him with adequate,3

non - misleading information concerning his appeal rights

. See id. at 355 (acknowledging that what constitutes the denial of judicial review “has not been definit ively determined” ). And in no other decision has ou r court addressed whether an alien may show that he was denied an effective opportunity for judicial review through the ineffectiveness of his attorney. The court ’s narrow reading of Section 1326(d)(2) is thus not required by our precedents. Moreover, t he court’s holding cannot be squared with a Second Circuit decision that appears directly on point. In United States v. Perez , the Second Circuit held that “[d] eprivation of the opportunity for judicial review can be established by demonstrating
ineffecti ve assistance of counsel .” 330 F.3d 97 , 101 (2d Cir. 2003). The court concluded that Perez’s counsel provided deficient representation by failing to file a section 212(c) application after stating at the deportation hearing that he would do so

. Id. at 1 02. T he

court suggests, without elaboration, that Perez is distinguishable on its facts because “Outram has not made a comparable allegation that Carlin represented to the IJ or the BIA that he would seek 212(c) relief, and then failed to do so .” Slip op . at 12. It is difficult to fathom why this factual distinction should make any difference: If Outram’s factual allegations are correct, Carlin’s failure to provide notice to Outram was the very

reason why Outram did not make a timely appearance at the d eportation hearing, at which he was going to seek relief under section 212(c). Moreover, Carlin’s apparent failure to appear at all at the hearing prevented Carlin from requesting an extension on Outram’s behalf. Because of th ese fail ings , Outram was nev er able to file a section4

212(c) application. Thus, Carlin’s failure to provide notice and his failure to appear w ere every bit as damaging to Outram as Perez’s attorney’s failure to file a 212(c) application
was to Perez. I would adopt the Second Circ uit’s holding in Perez , which recognizes that an alien can be denied an effective opportunity for judicial review through his attorney’s deficient performance, and I would remand this case for an evidentiary hearing to evaluate the truth of Outram’s assert ions regarding Montgomery Carlin’s conduct. I
therefore respectfully dissent.