APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (D.C. No. 02-cr-00158) District Judge: The Honorable Thomas K. Moore.
The opinion of the court was delivered by: Nygaard, Circuit Judge.
BEFORE: SCIRICA, Chief Judge, McKee and Nygaard, Circuit Judges.
Riel Charleswell appeals from his conviction for reentering the United States without permission after having been previously deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The District Court rejected Charleswell's collateral challenge to the validity of both his original 1991 Deportation order and his 2001 Reinstatement order, concluding that Charleswell was not denied the opportunity for judicial review in both instances. We hold that Charleswell was denied the opportunity for judicial review of the 2001 Reinstatement order and that the reinstatement proceeding, if prejudicial, was fundamentally unfair. Accordingly, we will vacate Charleswell's conviction and remand to the District Court for findings on whether Charleswell can demonstrate prejudice.
Charleswell was born in the British Virgin Islands but became a permanent resident of the United States in 1967, when he was three years old. In 1987, Charleswell was convicted in a Maryland state court for possession with intent to distribute marijuana and, based on that conviction, the Immigration and Naturalization Service commenced deportation proceedings against him ("1991 Deportation"). At his deportation hearing, Charleswell conceded that he was deportable but sought waiver pursuant to section 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c) (1995) (repealed by Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, Div. C, § 304(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-597). Section 212(c) permits the Attorney General discretion to waive deportation of a removable alien who had established a continuous, lawful domicile in the United States for seven years. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed. 2d 347 (2001). It is undisputed that Charleswell had established a continuous, lawful domicile in the United States for seven years. In distressing fashion, however, the Immigration Judge denied Charleswell's request for a section 212(c) waiver because he believed that the United States Virgin Islands, specifically St. Thomas, was not a territory of the United States. The IJ's mistaken belief led him to find Charleswell deportable to the British Virgin Islands. Despite the adverse finding, Charleswell did not appeal this decision and, on July 9, 1992, Charleswell was deported to the British Virgin Islands.
In 1997, Charleswell was again found and arrested in Maryland. He was charged with re-entering the United States after deportation and being a felon in possession of a firearm in violation of 8 U.S.C. § 1326. Charleswell moved to dismiss the indictment on the ground that his previous deportation was fundamentally unfair. The District Court dismissed this motion and, after a conditional plea of guilty, sentenced Charleswell to 49 months in prison. The Court of Appeals for the Fourth Circuit affirmed the District Court's judgment. See United States v. Charleswell, 173 F.3d 425 (4th Cir. 1999). On November 28, 2000, the INS issued a Notice of Intent to Reinstate Charleswell's 1991 Deportation. Pursuant to the Notice of Intent, Charleswell was deported again in 2001 ("2001 Reinstatement").
In 2002, Charleswell was again found in the United States, this time in St. Thomas, and he was charged in the District Court for the United States Virgin Islands with re-entry after deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2).*fn1
Charleswell filed a Motion to Dismiss, arguing that the 1991 Deportation and the 2001 Reinstatement, upon which the indictment was based, were fundamentally unfair and invalid. The District Court denied this motion, finding that Charleswell was not denied judicial review of the 1991 Deportation order or the 2001 Reinstatement. The government moved to preclude Charleswell from challenging the lawfulness of his prior deportations at trial, which the District Court granted and the matter proceeded to trial. On January 26, 2004, a jury returned a guilty verdict and the District Court sentenced Charleswell to 57 months in prison. This timely appeal follows.
We have jurisdiction over the appeal from the final judgment of the District Court pursuant to 28 U.S.C. § 1291. We review the District Court's determination precluding Charleswell from collaterally attacking his deportation de novo. United States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004). We also review the District Court's factual findings for clear error and we have plenary review over its decisions of law. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002), cert. denied, 537 U.S. 859, 123 S.Ct. 231, 153 L.Ed.2d 98 (2002).
Fundamental precepts of due process provide an alien subject to illegal re-entry prosecution under 8 U.S.C. § 1326 with the opportunity to challenge the underlying removal order under certain circumstances. See Torres, 383 F.3d at 98. Interpreting the Supreme Court's pronouncement in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed. 2d 772 (1987), we have formulated three distinct but compulsory requirements that must be met by any alien wishing to collaterally attack a previous deportation order or proceeding. The alien must establish that (1) he exhausted any administrative remedies that may have been available; (2) the hearing effectively eliminated the right of the alien to obtain judicial review from that proceeding; and (3) the prior hearing was "fundamentally unfair". Torres, 383 F.3d at 98-99; see also United States v. Luna, 436 F.3d 312 (1st Cir. 2006); United States v. Lara-Aceves, 183 F.3d 1007, 1010 (9th Cir. 1999); United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998); United States v. Paredes-Batista, 140 F.3d 367, 378 (2d Cir.), cert. denied, 525 U.S. 859, 119 S.Ct. 143, 142 L.Ed.2d 116 (1998); ...