In United States v. Gomez, 732 F.3d 971 (9th Cir. Oct. 7, 2013), the Ninth Circuit outlined the general analysis used when a defendant collaterally attacks the legal validity of the deportation order used to establish an essential element of the offense of illegal reentry after deportation:
When an alien defendant is prosecuted for illegal reentry under 8 U.S.C. 1326, he may not collaterally attack the underlying deportation order unless the alien demonstrates that:
(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.
8 U.S.C. 1326(d); United States v. Gonzalez"Villalobos, 724 F.3d 1125, 1126"27, 1128"32 (9th Cir.2013). An underlying removal order is fundamentally unfair if: (1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. United States v. Ubaldo"Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (alteration in original) (quoting United States v. Zarate"Martinez, 133 F.3d 1194, 1197 (9th Cir.1998)).
A defendant can establish the first two prongs of 1326(d) by showing that he was denied judicial review of his removal proceeding in violation of due process. See Reyes"Bonilla, 671 F.3d at 1043; Ubaldo"Figueroa, 364 F.3d at 1049"50. Due process requires that
[W]here a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.
United States v. Mendoza"Lopez, 481 U.S. 828, 837"38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (footnote omitted) (citations omitted); see also United States v. Lopez"Vasquez, 1 F.3d 751, 753 (9th Cir.1993).
A defendant can also satisfy the first two prongs of 1326(d) by showing that immigration officials in the underlying removal proceeding violated a regulation designed to protect an alien's right to judicial review. See United States v. Barajas"Alvarado, 655 F.3d 1077, 1084"85 (9th Cir.2011), cert. denied, """ U.S. """", 132 S.Ct. 1983, 182 L.Ed.2d 829 (2012). [T]he Supreme Court has ruled that when Congress enacts a procedure, aliens are entitled to it. Id. (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.)); see also United States v. Ramos, 623 F.3d 672, 683 (9th Cir.2010) (It is a well-known maxim that agencies must comply with their own regulations. (quoting Ramon"Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir.1984)) (internal quotation marks omitted)).
Once a due process or a qualifying regulatory violation has been established, we evaluate the third prong of 1326(d) (that the deportation order was fundamentally unfair) as a prejudice inquiry. See Reyes"Bonilla, 671 F.3d at 1039 (noting that we have long held that a defendant*978 seeking to exclude evidence of a prior removal order in a prosecution for illegal reentry must demonstrate a due process violation and bears the burden of proving prejudice. (quoting United States v. Proa"Tovar, 975 F.2d 592, 595 (9th Cir.1992) (en banc) and citing 8 U.S.C. 1326(d)(3))); see also United States v. Rangel"Gonzales, 617 F.2d 529, 530 (9th Cir.1980) (explaining that for the purposes of a 1326 prosecution we conduct a two-step inquiry to determine if a regulatory violation invalidates an underlying removal order: (1) the regulation itself must serve a purpose of benefit to the alien and (2) the violation must have prejudiced interests of the alien which were protected by the regulation (internal quotation marks omitted)).
Id. at 977-978.
