The opinion of the court was delivered by: SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.
Defendant Juan Jimenez moves to preclude the Government from use of a 1994 deportation order in the Government's current prosecution of the defendant for illegal reentry after having been deported, a violation of 8 U.S.C. § 1326. For the reasons discussed below, the defendant's motion is denied.
The defendant is a citizen of the Dominican Republic, who by his own admission entered the United States illegally in October, 1991. Ex. I to Aff. of Assistant U.S. Attorney Lynn A. Neils (hereinafter, "Neils Aff."); Ex. Q to Neils Aff., Transcript of Deportation Hearing at 11 (hereinafter, "Tr."). In 1992, defendant was twice arrested in New York City, under the name Juan Jimenez, for selling cocaine. On September 15, 1993, defendant pled guilty to two counts of attempted criminal sale of cocaine in the third degree. He received concurrent sentences of six months imprisonment to be followed by four-and-one-half years of probation. While incarcerated, defendant was interviewed by the Immigration and Naturalization Service ("INS"), and stated that his name was Juan Jimenez and that he had entered the U.S. illegally. He was thereafter notified that he was subject to deportation pursuant to the Immigration and Naturalization Act ("INA"), for violation of 8 U.S.C. §§ 1251(a)(1)(B) (illegal entry), 1251(a)(2)(A)(iii) (conviction of an aggravated felony), and 1251(a)(2)(B)(i) (conviction of a drug offense other than personal use possession). After he completed the incarceration portion of his sentence (two months having been credited for good behavior), the INS took defendant into custody on the three described charges and informed him that he was eligible to be released on a $ 15,000 bond while awaiting the deportation decision. Defendant was unable to post the bond.
On January 4, 1994, defendant appeared before Immigration Law Judge Alan L. Page to answer the INA charges. Judge Page ruled against the defendant and ordered him deported. The defendant was deported on January 24, 1994. The defendant was arrested on the instant charge, illegal reentry after having been deported, on February 22, 1995.
This motion challenges the adequacy of the defendant's waiver of his right to counsel an to appeal at the deportation hearing. For the reasons set forth below, I find that the waivers were tainted by a coercive chill emanating from Judge Page's actions, but I find his errors did not prejudice the defendant.
Mendoza-Lopez also contemplated an additional enquiry into whether the denial of the fundamental right resulted in prejudice to the defendant.
Because respondents were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them, the deportation proceeding in which these events occurred may not be used to support a criminal conviction. . . .
Id. at 842 (emphasis added).
Our circuit has explicitly required that prejudice must be addressed when a district court reviews, on a collateral challenge, the propriety of a deportation hearing.
The discussion in Mendoza-Lopez, however, suggests that for a collateral challenge to a deportation order to be successful, the alien must not only show that he was effectively deprived of his right of direct appeal, but also that the administrative proceedings were fundamentally unfair in some respect that would have entitled him to relief on direct appeal. . . .We are persuaded that if an alien has been effectively denied his right of direct appeal from the deportation order, we should examine the underlying proceedings to determine whether or not he was unfairly prejudiced by those proceedings. If we find no fundamental unfairness, and we therefore conclude that a fully informed exercise of ...