It should never be suggested that a noncitizen who has departed the United States under order of removal attempt to re-enter the United States illegally.  However, it may be possible to attack the validity of the underlying immigration proceedings upon prosecution under 8 U.S.C. § 1326 (illegal re-entry).  The Ninth Circuit has held that, “[i]n a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation.  If the defendant’s deportation proceedings fail to provide this opportunity, the validity of the deportation may be collaterally attacked in the criminal proceeding.”[62]

 

To attack the underlying order of removal, the noncitizen must show a due process violation and prejudice.[63]  The noncitizen must also demonstrate (1) that s/he exhausted all administrative remedies available to him or her to appeal the removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him or her of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair.[64]

 

In United States v. Leon-Paz,[65] the Ninth Circuit allowed a noncitizen to attack the underlying immigration proceedings where the Immigration Judge failed to give the noncitizen correct advice regarding his eligibility for 212(c) relief.  The Ninth Circuit found that the noncitizen had therefore not made a knowing and voluntary waiver of appeal to the BIA.[66]  Similar arguments, relating to a recently vacated conviction, could potentially be made in defense of an 8 U.S.C. § 1326 prosecution.[67]

[62] United States v. Zarate-Martinez, 113 F.3d 1194, 1997 (9th Cir. 1998).

[63] Ibid.

[64] United States v. Ubaldo-Figueroa, 347 F.3d 718, 725 (9th Cir. 2003).

[65] United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003).

[66] Ibid.

[67] United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. Jan 6, 2004) (reversing dismissal of illegal re-entry indictment on ground deportation order not illegal, since noncitizen had no constitutional right to be informed of discretionary relief that might be available to him, the immigration judge did so inform him, and he failed to demonstrate prejudice); United States v. Saldivar-Vargas, 290 F.Supp.2d 1210, 2003 U.S. Dist. LEXIS 24014 (S.D. Cal. November 10, 2003) (prior removal proceeding may not be used to demonstrate that the defendant had previously been removed since the immigration judge failed to inform him of discretionary relief from removal pursuant to INA § 212(c)).

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - PROSECUTORIAL MISCONDUCT - FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF
By analogy to the duties of a prosecutor in a criminal case, the TA has a duty of fairness, not deportation.  It is in the government's interest that a noncitizen who is eligible for relief and deserving of relief receive relief from deportation.  See Berger v. United States, 295 U.S. 78, 88 (1935); ABA Standards Relating to the Prosecution Function.

BIA

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - PROSECUTORIAL MISCONDUCT - FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF - IMMIGRATION AGENCY MUST FOLLOW OWN PROCEDURES
Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980) ("Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures, even where the internal procedures are possibly more rigorous than otherwise would be required.; Morton v. Ruiz, 415 U.S 199, 235 (1974).").  See also United States v. Caceres, 440 U.S. 741 (1979); Bridges v. Wixon, 326 U.S 135, 152-153 (1945).

Second Circuit

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK
United States v. Scott, 394 F.3d 111 (2d Cir. January 11, 2005) (district court erred in denying motion to dismiss indictment on ground that underlying deportation order was invalid because defendant had been prejudiced during deportation proceeding by his counsel's ineffective assistance in failing to move for waiver of deportation under INA 212(c); entry of underlying deportation order was "fundamentally unfair" within meaning of 8 U.S.C. 1326(d)).

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - PROSECUTORIAL MISCONDUCT - FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF
Drax v. Reno, 338 F.3d 98 (2d Cir. Aug. 4, 2003) (where the IJ had wrongfully denied a continuance, incorrectly reasoning that a 212 waiver was unavailable, Drax was entitled to a habeas grant and remand).

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - PROSECUTORIAL MISCONDUCT - FAILURE TO WARN NONCITIZEN OF ELIGIBILITY FOR RELIEF - IMMIGRATION AGENCY MUST FOLLOW OWN PROCEDURES - ESTOPPEL 
Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976) (the INS was estopped from deporting the petitioner because the INS had failed to give a warning that it was required to give by its own regulations); see Scime v. Bowen, 822 F.2d 7, 9 (2d Cir. 1987) (noting that opinion in Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S. 937 (1977), confined the holding of Corniel-Rodriguez to its facts, "particularly the immigration official's failure to provide petitioner with a warning mandated by federal regulation."); but see: INS v. Miranda, 459 U.S. 14, 18-19 (1982) (unexplained delay in processing does not give rise to estoppel).

Third Circuit

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - IJ FAILURE TO OFFER 212(C) RELIEF
United States v. Torres, 383 F.3d 92 (3d Cir. September 7, 2004) (IJ failure to inform noncitizen of eligibility for discretionary relief did not render removal proceeding unconstitutional; illegal reentry charge sustained) One circuit has found such failure to inform violates due process, however, none other circuits to reach this issue agree. Compare United States v. Aguire-Tello, 353 F.3d 1199, 1207-10 (10th Cir.2004) (en banc), and United States v. Wilson, 316 F.3d 506, 509-511 (4th Cir.2003), and United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir.2003), and United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir.2002), and United States v. Roque-Espinoza, 338 F.3d 724, 728 (7th Cir.2003), with United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1051 (9th Cir.2004).  

Seventh Circuit

MOTION TO REOPEN AFTER REMOVAL
Munoz de Real v. Holder, ___ F.3d ___, 2010 WL 455404 (7th Cir. Feb. 11, 2010) (8 C.F.R. 1003.23(b)(1) divests the immigration court of jurisdiction to hear a motion to reopen from noncitizen who has already left the country).

MOTION TO REOPEN AFTER REMOVAL
Munoz de Real v. Holder, ___ F.3d ___, 2010 WL 455404 (7th Cir. Feb. 11, 2010) (8 C.F.R. 1003.23(b)(1) divests the immigration court of jurisdiction to hear a motion to reopen from noncitizen who has already left the country).

Ninth Circuit

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - DENIAL OF EVIDENTIARY HEARING CONCERNING DUE PROCESS UNLAWFUL ARREST CLAIM IN IMMIGRATION COURT
Salgado-Diaz v. Ashcroft, ___ F.3d ___ (9th Cir. January 31, 2005) (petition for review granted where Immigration Judge's order denying noncitizen an evidentiary hearing on his claim of unlawful arrest is a due process violation).
http://caselaw.lp.findlaw.com/data2/circs/9th/0274187p.pdf

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - COLLATERAL ATTACK - DUE PROCESS VIOLATION OF EOIR REGULATIONS FOR IJ'S FAILURE TO ASCERTAIN WHETHER RESPONDENT DESIRED REPRESENTATION
An Immigration Judge must require a noncitizen in removal hearing to state explicitly whether s/he desires representation by counsel. 8 C.F.R. 1240.10(a)(1). Prejudice may consist in the possibility that the noncitizen, with the assistance of counsel, may be able to demonstrate eligibility for relief such as cancellation of removal under 8 U.S.C. 1229b(b)(1). See Baltazar-Alcazar v. INS, 386 F.3d 940, 947-48 (9th Cir. 2004). Failure to do so may invalidate the resulting removal order so as to constitute a defense to illegal reentry after deportation.

Eleventh Circuit

POST CON - TIMING - VACATING CONVICTION AFTER ILLEGAL REENTRY
United States v. Orduno-Mireles, __ F.3d __, 2005 WL 768134 (11th Cir. April 6, 2005) (vacating conviction after illegal reentry does not eliminate the conviction for purposes of illegal reentry sentence enhancement for prior conviction of an aggravated felony).

Other

ILLEGAL REENTRY - ELEMENTS - DEPORTATION - DUE PROCESS VIOLATIONS - INEFFECTIVE ASSISTANCE OF COUNSEL
Lory D. Rosenberg & Kenneth H. Stern, Ineffective Assistance of Counsel: An Antidote for the Convicted Alien, 65 Interpreter Releases 529, 531-32 (1988).