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The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-4178

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United States of America,

Appellee,

v.

Ernesto Garcia Rodriguez,

Appellant.

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Appeal from the United States

District Court for the Northern

District of Iowa.

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Submitted: June 21, 2005 

 Filed: August 25, 2005

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Before MELLOY, HEANEY, and GRUENDER, Circuit Judges. 

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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.1
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Rodriguez already had eight previous convictions for driving under the

influence of alcohol from July 1990 through January 1996.

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I. BACKGROUND

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.2

 Rodriguez pled guilty to

the charge. At the time of his plea, Rodriguez understood that the conviction would

cause him to be deported.

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,

Well, the appeals court made a ruling that . . . an Arizona statute

involving drunk driving is an aggravated felony. They have not

specifically ruled on the California statute yet. However, my review of

the two statutes shows they are almost identical. In many ways, the

Arizona statute is much broader than the California statute, so I can’t tell

you what they would decide. But it doesn’t look good. Otherwise, I

would give you an option. I don’t like deporting people away from their

families unless the law very clearly applies. I have a family myself and

I wouldn’t want to be deported either. So I take those things in

consideration. Would you like to appeal my decision or would you like

to accept it?

Rodriguez then asked how long an appeal would take. The IJ responded

“around six to twelve months.” Rodriguez asked whether he could move his case to

Iowa. The IJ explained that there is no immigration court in Iowa and that the closest
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one to Iowa would probably be Omaha or Chicago. Rodriguez asked if he could

move the case to one of those locations. The IJ responded that there was no reason

to address a change of case location unless, on appeal, the BIA found a reason to

remand for further proceedings. Next, Rodriguez asked whether the IJ could give him

voluntary departure. The IJ explained that “under the law you are not eligible for

voluntary departure because your crime is classified as an aggravated felony.” The

IJ also discussed the possibility of adjustment of status if Rodriguez were to marry

his girlfriend, a United States citizen. Finally, the IJ asked, “Would you like to

reserve your right of appeal or do you want to accept the decision I have made

today?” Rodriguez responded, “I accept your decision.” He was then deported to

Mexico. Had Rodriguez appealed his decision to the BIA and received an

unfavorable decision, he could have obtained judicial review in a federal court of

appeals.

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.

II. DISCUSSION

 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-
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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:

In a criminal proceeding under this section, an alien may not challenge

the validity of the deportation order . . . unless the alien demonstrates

that–

(1) the alien exhausted any administrative remedies that may have

been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued

improperly deprived the alien of the opportunity for judicial

review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). 

We have recognized subsection (d) as a codification of United States v.

Mendoza-Lopez, 481 U.S. 828 (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 929

(quoting Torres-Sanchez, 68 F.3d at 230). An error cannot render the proceedings

fundamentally unfair unless it resulted in actual prejudice. Torres-Sanchez, 68 F.3d

at 230. “Actual prejudice exists where defects in the deportation proceedings ‘may

well have resulted in a deportation that would not otherwise have occurred.’” Id.

(quoting United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989)).

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
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The dissent relies on Santos-Vanegas to reach a different result. However,

Santos-Vanegas is distinguishable on its facts. Santos-Vanegas, who “spoke no

English and could not read or write in any language,” filed an appeal with the BIA

with the assistance of an INS employee. 878 F.2d at 249. His statements in the

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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, 125 S. Ct. 377 (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. 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.

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; 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.3

 In response to a question from Rodriguez regarding his chances on
Notice of Appeal “reveal[ed] the defendant’s confusion about the deportation order

issued by the ILJ and its consequences.” Id. at 250. The BIA denied his appeal, the

deportation notice he received six days later “did not in any way indicate that he

could pursue further appeal in the federal courts,”and “[n]either had the ILJ or anyone

else earlier advised him of any opportunity to appeal beyond the administrative

level.” Id. Because Santos-Vanegas’s actions demonstrated that he had no intention

of waiving his right to appeal, we held that “[t]he government ought to have told the

defendant of his opportunity to pursue further challenge in federal court.” Id. at 251

(emphasis added).

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.

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appeal, the IJ discussed the current law on drunk driving as an aggravated felony and

concluded, “I can’t tell you what they would decide. But it doesn’t look good.” This

in no way deprived Rodriguez of his known right to present his case to the BIA and,

if unsuccessful there, to a court of appeals. Therefore, Rodriguez has not shown that

an error in the proceeding before the IJ functionally deprived him of the right to

judicial review. Mendez-Morales, 384 F.3d at 929. Rodriguez’s attempt to

collaterally attack the 1999 deportation order fails.

III. CONCLUSION

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. 
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While the IJ stated that “the appeals court made a ruling” that drunk driving

is an aggravated felony, this was a reference to a BIA decision, In Re Carlos Istalin

Magallanes-Garcia, 22 I. & N. Dec. 1(1998). The Ninth Circuit addressed this

question more than two years after Rodriguez’s hearing before the IJ. See United

States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001). 

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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.4

 

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: 
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In some cases an IJ’s failure to anticipate a change in interpretation has been

held to invalidate a waiver of appellate rights. However, this issue has not been

treated consistently throughout the circuits. Compare United States v. Calderon, 391

F.3d 370 (2d Cir. 2004) (holding that failure to advise an eligible alien of the

possibility of relief under § 212(c) invalidated a waiver of appeal rights even though

the BIA believed such relief was statutorily barred and the Supreme Court had not yet

ruled on the issue), United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004)

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[C]ontrary to popular belief, I do not work for the Immigration Service.

The purpose of today’s hearing is for me to determine the validity of the

charges made against you by the Immigration Service. If the charges

turn out to be invalid, I will dismiss the case against you. And even if

the charges are valid, there are some times [sic] ways to avoid

deportation in the immigration laws. That will depend on the facts of

your case. Once I know more about your case, I will let you know if you

are eligible to avoid deportation or not. 

Later, addressing Rodriguez’s request for voluntary departure, he stated: “You are

not eligible for anything, not a single thing.” These comments are troubling both

because they create the impression that the IJ would be offering legal advice to the

respondents, and because the assessment the IJ made of Rodriguez’s case was

incomplete if not incorrect. 

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, 125 S. Ct. 377 (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;5

 it is a
(same), and United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (holding

that alien’s waiver of appellate rights was not considered or intelligent where the IJ

did not inform him of his eligibility for relief from deportation because she believed

the alien had been convicted of an aggravated felony) with United States v. AguirreTello, 353 F.3d 1199 (10th Cir. 2004) (en banc) (holding that an alien did not have

a constitutional right to be informed of discretionary relief he or she may be eligible

for) and United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003) (suggesting

that an alien was not deprived of the right to judicial review where the IJ failed to

inform him of his eligibility for relief under § 212(c)).

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failure to adequately advise Rodriguez of his current appellate rights. In this group

proceeding the IJ had “an affirmative obligation . . . to advise [Rodriguez] effectively

of his . . . right to judicial review of deportation proceedings,” an obligation which

is heightened, not diminished, by Rodriguez’s decision to proceed without counsel.

Santos-Vanegas, 878 F.2d at 251. Rodriguez should have been informed of his

opportunity to appeal his deportation order in federal court. I would therefore hold

that Rodriguez was deprived of the right to judicial review. 

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