434 F.3d 659 (4th Cir. 2005), 04-4662, United States v. El Shami

Docket Nº:04-4662.
Citation:434 F.3d 659
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Essam Helmi EL SHAMI, a/k/a Essam Hamed Elshami, a/k/a Sam Helmi, a/k/a Helmy Asam, a/k/a Shamy Asam, a/k/a Sam Helmy Shamy, a/k/a El Shami Essam, Defendant-Appellant.
Case Date:December 27, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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434 F.3d 659 (4th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Essam Helmi EL SHAMI, a/k/a Essam Hamed Elshami, a/k/a Sam Helmi, a/k/a Helmy Asam, a/k/a Shamy Asam, a/k/a Sam Helmy Shamy, a/k/a El Shami Essam, Defendant-Appellant.

No. 04-4662.

United States Court of Appeals, Fourth Circuit.

December 27, 2005

Argued Oct. 28, 2005.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond, CR-03-294, Henry E. Hudson, District Judge.

Judge Gregory wrote the majority opinion, in which Judge Niemeyer joined. Judge Widener wrote a dissenting opinion.

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Frances Hemsley Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant .

Charles Everett James, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

ON BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Michael S. Nachmanoff, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant .

Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.


GREGORY, Circuit Judge:

Essam Helmi El Shami ("El Shami" or the "defendant") appeals his conviction for unlawful reentry of a deported alien under 8 U.S.C. § 1326(a) and (b)(2).1 Although a jury also convicted El Shami of one count of social security fraud and one count of credit card fraud, he does not appeal these convictions. El Shami argues that this court should vacate his illegal reentry after deportation conviction under 8 U.S.C. § 1326(d) because he satisfies the three requirements for a collateral attack of a prior deportation order under 8 U.S.C. § 1326(d).2Because we conclude that the prior deportation order was flawed under section 1326(d), we vacate the illegal reentry conviction.


In May 2003, El Shami was arrested in Colonial Heights, Virginia, after being found in possession of numerous fraudulent documents, including fraudulently obtained credit cards and social security cards. After determining that El Shami had been deported to Egypt in August 1994 pursuant to an order of the Immigration and Naturalization Service ("INS") and had never received permission to re-enter this country, the United States charged El Shami with illegal reentry after deportation.

The facts underlying El Shami's deportation are as follows. El Shami immigrated to the United States from Egypt in 1980 and became a permanent resident alien in 1984. The defendant married a United States citizen and owned and operated two successful businesses in the New Jersey area. On July 2, 1986, El Shami was convicted of criminal sexual contact in the New Jersey Superior Court for Passaic County. El Shami was convicted of aggravated arson in the same court on August 7, 1990.

Subsequently, in early 1993, INS officials initiated deportation proceedings. On March 11, 1993, INS agents personally served El Shami with an order to show cause and notice of a hearing at his residence in Guttenberg, New Jersey. This order to show cause informed El Shami that he was subject to deportation under the Immigration and Nationality Act for being previously convicted of two crimes of moral turpitude: criminal sexual contact

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and aggravated arson. After being taken into custody by INS and transferred to Oakdale, Louisiana, El Shami appeared for a bond hearing on March 30, 1993. At that hearing in Louisiana, the immigration judge released El Shami on a $20,000 bond. After his release, El Shami provided the INS with his address of record in Guttenberg, New Jersey, for all correspondence regarding the scheduling of his deportation hearing. After returning to New Jersey, El Shami hired an attorney, who successfully moved for a transfer of the deportation proceedings to the immigration court in New Jersey.3

Once the case was transferred to New Jersey, the immigration court eventually scheduled the final deportation show cause hearing for October 28, 1993. Although El Shami did not appear at this hearing, the immigration judge proceeded in absentia and ordered El Shami deported to Egypt. Subsequently, in August 1994, INS officials took El Shami into custody and deported him to Egypt.

The United States was unable to produce any evidence demonstrating that the INS had sent El Shami or his attorney written notice of the date and time of the October 28 hearing.4 However, El Shami and his wife testified at the hearing on the defendant's motion to dismiss the illegal reentry charge that the defendant never received notice of the hearing at his address of record. Indeed, these witnesses testified that El Shami only learned of the October 28 deportation hearing nine months afterwards, when he received a copy of the deportation order in the mail.

After being arraigned on the illegal reentry after deportation and fraud charges in November 2004, El Shami filed a motion to dismiss the illegal reentry charge on the grounds that defects in his 1993 deportation proceedings rendered the deportation order invalid under 8 U.S.C. § 1326(d). The district court denied this motion, concluding that even if El Shami had been deprived notice of his deportation hearing, he was unable to demonstrate actual prejudice.5 See J.A. 4-5.

With respect to the district court's denial of his motion to dismiss the illegal reentry charge under 8 U.S.C. § 1326(d), the defendant argues that the court erred because it misunderstood the state of the

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record and the applicable standard of prejudice. Appellant's Br. at 21, 29. Because El Shami never received notice of a hearing, the defendant argues that he was denied the opportunity (1) to challenge the factual or legal basis for the deportation, by disputing the INS's evidence or presenting his own evidence; (2) to apply for relief from deportation under section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c); (3) to appeal the deportation order to the Bureau of Immigration Affairs ("BIA");6 and, if applicable, (4) to appeal the BIA order to the United States Court of Appeals for the Third Circuit. Further, El Shami contends that the district court erred in concluding that, even assuming the above deprivations, the defendant could not demonstrate actual prejudice – i.e., that but for the errors complained of there was a reasonable probability that the alien would not have been deported.

The United States responds that the district court properly denied the motion to dismiss the illegal reentry charge, because the INS afforded the defendant all due process protections. Even if the INS's failure to advise El Shami of the date and time of his final hearing constitutes a due process violation, the United States contends that El Shami's collateral attack still fails because he cannot show actual prejudice. Accordingly, the United States argues that El Shami cannot meet the requirements for a valid collateral attack of an illegal reentry charge under 8 U.S.C. § 1826.


This Court reviews de novo the denial of a motion to dismiss a charge under 8 U.S.C. § 1326(d). See United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003). Because a deportation order is an element of the offense of illegal reentry, the Supreme Court has recognized that an alien can collaterally attack the propriety of the original deportation order in the later criminal proceeding. See United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). In order to successfully attack the underlying deportation order, the defendant must satisfy three requirements. Wilson, 316 F.3d 506; 8 U.S.C. § 1326(d). The alien must demonstrate that

(1) he exhausted any...

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