§ 11.84 3. Collateral Attack of Deportation Order Upon Prosecution for Illegal Re-entry
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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.”
To attack the underlying order of removal, the noncitizen must show a due process violation and prejudice. 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.
In United States v. Leon-Paz, 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. Similar arguments, relating to a recently vacated conviction, could potentially be made in defense of an 8 U.S.C. § 1326 prosecution.
 United States v. Zarate-Martinez, 133 F.3d 1194, 1997 (9th Cir. 1998).
 United States v. Ubaldo-Figueroa, 347 F.3d 718, 725 (9th Cir. 2003).
 United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003).
 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 (S.D. Cal. Nov. 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)).