US SUPREME COURT DECISIONS

Title 8 U.S.C. § 1326 provides that any alien who has been deported and thereafter enters the United States is guilty of a felony. Respondents, Mexican nationals, were arrested and deported after a group hearing at which they purportedly waived their rights to apply for suspension of deportation and to appeal. Subsequently, respondents were again arrested in this country and indicted on charges of violating § 1326. However, the District Court dismissed the indictments, ruling that respondents could collaterally attack their previous deportation orders. The court found that they had not understood the Immigration Judge's explanation of suspension of deportation, and concluded that the reliability of the proceedings had been totally undermined by the fact that they had not made knowing and intelligent waivers of their right to that remedy or their right to appeal. The Court of Appeals affirmed, holding that, since a material element of the offense prohibited by § 1326 was a "lawful" deportation order, principles of fundamental fairness required a pretrial review of the underlying deportation to determine whether respondents received due process of law. Because they did not fully understand the proceedings, the court found a due process violation rendering the deportation order unlawful, and therefore not a proper basis for the charges against respondents.

Held:

1. The text, legislative history, and background of § 1326 indicate that Congress did not intend the validity of an underlying deportation order to be contestable in a § 1326 prosecution. Section 1326's express language does not suggest that only a "lawful" deportation may be an element of the offense, thereby permitting a collateral challenge. Moreover, in enacting § 1326, Congress had available to it at least one predecessor statute containing express language that would have permitted collateral challenges, but failed to include that language in § 1326. While there was, at the time of § 1326's enactment, some case law suggesting that collateral attacks might be permissible under certain circumstances, that principle was not so unequivocally established that Congress must have intended to incorporate it into § 1326. Furthermore, the Immigration and Nationality Act does include sections -- particularly 8 U.S.C. § 1105(a) -- dealing with judicial review of deportation chanrobles.com-red

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orders, which, although not directly applicable to this case, indicate that Congress considered and addressed some of the various circumstances in which challenges to deportation orders might arise without mentioning § 1326. Pp. 481 U. S. 833-837.

2. Due process requires that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review. Pp. 481 U. S. 837-842.

(a) Depriving an alien of the right to have the disposition of a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense. Pp. 481 U. S. 837-839.

(b) Respondents' deportation hearing was fundamentally unfair, and violated due process. By permitting waivers of the right to appeal that were not the result of considered or intelligent judgment by respondents, the Immigration Judge completely deprived them of their right to judicial review of the deportation proceeding. This deprivation precludes the use of the deportation orders to prove § 1326 violations. Pp. 481 U. S. 839-840.

(c) Lewis v. United States, 445 U. S. 55, is distinguishable from the instant case, since it assumed the opportunity to challenge the underlying decision in a judicial forum, precisely that which was denied respondents here. Pp. 481 U. S. 840-842.

781 F.2d 111, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, C.J.,filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 481 U. S. 842. SCALIA, J., filed a dissenting opinion, post, p. 481 U. S. 846. chanrobles.com-red

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