"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.
The courts of appeals that have addressed this question have unanimously required a similar showing of prejudice. See United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000) (holding that an alien must show fundamental unfairness, denial of direct review and actual prejudice); United States v. Wittgenstein, 163 F.3d 1164, 1170-71 (10th Cir. 1998) (holding that a showing of fundamental unfairness requires a showing of prejudice); United States v. Loaisiga, 104 F.3d 484, 488-89 (1st Cir. 1997) (holding that a collateral attack could not succeed because there was no prejudicial error); United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994) (agreeing with other circuits that require a showing of prejudice in addition to a showing of no direct review); United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (affirming prior case law requiring prejudice); United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989) (holding that a "successful collateral attack on a deportation order requires a showing of actual prejudice"); United States v. Holland, 876 F.2d 1533, 1536 (11th Cir. 1989) (noting that "[c]aselaw . . . indicates that fundamental unfairness requires a showing that specific errors prejudiced the defendant"). Fernandez-Antonia concedes that a showing of prejudice is required but contends that our decision in United States v. Paredes-Batista allows him to show prejudice merely by demonstrating procedural flaws in the removal proceeding.
The law in this circuit, however, places the burden of proof on an alien seeking to collaterally attack the prior deportation to prove both (1) a due process defect in the prior deportation proceeding and (2) actual prejudice. See United States v. Santos-Vanegas, 878 F.2d 247, 250-51 (8th Cir. 1989) (Santos-Vanegas); United States v. Polanco-Gomez, 841 F.2d 235, 236-37 (8th Cir. 1988) (Polanco-Gomez). Martinez-Amaya cites United States v. Mendoza-Lopez, 781 F.3d 111, 112-13 (8th Cir. 1985), aff'd, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (Mendoza-Lopez), for the proposition that "when prosecuting a section 1326 proceeding, the government must prove beyond a reasonable doubt that the defendant illegally entered the United States after being deported according to law."
We are confirmed in our view by the decisions of other circuits which have addressed this issue and have reached the conclusion that we reach today. See United States v. Encarnacion-Galvez, 964 F.2d 402 (5th Cir. 1992); United States v. Santos-Vanegas, 878 F.2d 247, 251-52 (8th Cir. 1989); United States v. Holland, 876 F.2d 1533, 1537 (11th Cir. 1989). We recognize, as did the Court, that there may well be times when the administrative proceedings were so flawed that effective judicial review will be foreclosed. No doubt there will be instances when the very lack of an appeal from the IJ to the Board of Immigration Appeals and thence to the courts will preclude the exercise of discretionary authority that might have prevented the deportation itself.
Other circuits have interpreted Mendoza-Lopez to require a showing of prejudice in the collateral challenge. See, e.g., United States v. Santos-Vanegas, 878 F.2d 247 (8th Cir. 1989); United States v. Holland, 876 F.2d 1533, 1536 (11th Cir. 1989); United States v. Palacios-Martinez, 845 F.2d 89, 91 (5th Cir.), cert. denied, 488 U.S. 844, 109 S.Ct. 119, 102 L.Ed.2d 92 (1988). We believe it to be a better reading of Mendoza-Lopez to read it as a bright-line rule and to encourage the INS to make certain that every person deported as the result of an administrative hearing was adequately apprised, on the record, of his right to appeal.
Prejudice in a deportation proceeding is present when it "may well have resulted in a deportation that would not have otherwise occurred." United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir. 1989). III. LEGAL ANALYSIS
Id. (citing United States v. Santos-Vanegas, 878 F.2d 247, 250-51 (8th Cir. 1989); United States v. Polanco-Gomez, 841 F.2d 235, 236-37 (8th Cir. 1988)).
Due process requires that defendant be allowed to collaterally attack the use of a deportation proceeding as an element of a criminal offense where that proceeding "effectively eliminates [his] right to obtain judicial review." United States v. Santos-Vanegas, 878 F.2d 247, 250 (8th Cir. 1989) (quoting United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 2156, 95 L.Ed.2d 772 (1987)). To successfully challenge his 1987 deportation hearing, defendant must show that the alleged failure to notify him of his right to contact the consulate: (1) was a fundamental procedural error functionally depriving defendant of his right to judicial review; and (2) defendant was actually prejudiced as a result.
But in the context these statements are best understood as referring to an appeal to the BIA, not a federal court, not least because there is no right to direct judicial review of an IJ's order. Nonetheless, we reject Naing's contention. It is true that we have held that a mere failure to advise an alien in a deportation proceeding of his right to judicial review ordinarily precludes the government from later using that deportation proceeding as a predicate for a criminal offense against him. See United States v. Santos–Vanegas, 878 F.2d 247, 251 (8th Cir.1989). But in this case Naing can show no resulting prejudice.
In so arguing, Varela-Cias asks us to follow the precedent set forth in United States v. Santos-Vanegas, in which the Eighth Circuit held that the IJ has an obligation to inform the alien of "his opportunity to pursue further challenge in federal court." 878 F.2d 247, 251 (8th Cir. 1989). We decline to address this argument because Varela-Cias never argued in the district court that the IJ should have informed him of his right to file an appeal in federal court.