UNITED STATES OF AMERICA, PETITIONER V. JOSE MENDOZA-LOPEZ AND
ANGEL LANDEROS-QUINONES

   No. 85-2067

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   Reply Memorandum for the United States

   Respondents do not seriously dispute our contention that the
question presented in this case is one of great importance to the
administration of the immigration laws.  Nor do respondents dispute,
as the court of appeals here acknowledged (Pet. App. 3a), that the
circuits are badly split on the issue:  three circuits do not permit
collateral attacks on the validity of deportation proceedings in
prosecutions under 8 U.S.C. 1326, while four circuits permit
collateral attacks in some circumstances (Pet. App. 3a).  Instead,
respondents contend that review is not warranted because the court of
appeals here decided the issue correctly.  Although that is not a
sufficient ground for this Court to deny certiorari, we reply briefly
to the points raised by respondents.

   Respondents contend (Br. in Opp. 6) that the language of 8 U.S.C.
1105a provides "little support" for our argument that collateral
attacks on the validity of deportation proceedings should not be
permitted in prosecutions under Section 1326.  They argue that Section
1105a "is the civil deportation review statute, and applies only to
aliens still empowered to raise civil attacks by their continuing
presence in the United States" (Br. in Opp. 6).  To the contrary,
Section 1105a clearly provides that it is the "sole and exclusive
procedure for * * * judicial review of all final orders of
deportation." Furthermore, contrary to respondents' suggestion that
Section 1105a somehow does not apply to criminal proceedings, Section
1105a(a)(6) provides that an alien who fails to depart may
collaterally attack the validity of his deportation order in a
prosecution under 8 U.S.C. 1252(d) for failure to depart after being
ordered to do so.  That provision makes it clear that when it enacted
Section 1105a, Congress had in mind the question whether collateral
attacks on the validity of deportation orders should be permitted in a
defense to criminal charges.  By providing that the methods listed in
Section 1105a are the "sole and exclusive" procedures for obtaining
judicial review of deportation orders, Congress apparently intended
not to permit such attacks in other settings, such as cases involving
aliens who were deported and then reentered the United States without
the permission of the Attorney General.

   Relying primarily on the dissenting opinion in United States v.
Spector, 343 U.S. 169 (1952), respondent suggest that due process
requires that they be permitted to collaterally attack the validity of
their deportation orders.  As we noted in our petition, this Court
stated in Yakus v. United States, 321 U.S. 414, 444 (1944), that there
is "no principle of law or provision of the Constitution which
prescludes Congress from making criminal the violation of an
administrative regulation, by one who has failed to avail himself of
an adequate separate procedure for the adjudication of its validity."
Respondents distinguish Yakus (Br. in Opp. 5-6) by noting that it
involved an exercise of rulemaking rather than adjudicative power.
While that is so, it does not change the essential point, which is
that Congress can constitutionally permit a jury to rely on the fact
that a prior administrative order was violated, rather than requiring
a review of the administrative proceeding as part of the criminal
prosecution.

   Contrary to respondents' contention (Br. in Opp. 5), nothing in
Estep v. United States, 327 U.S. 114 (1946), supports their argument
on this point.  The Court in Estep stressed that the criminal statute
at issue was silent as to whether courts were to review the
administrative action underlying the prosecution (id. at 119), and
concluded that Congress intended that defendants should be permitted
to attack the underlying administrative action (id. at 121).  Here, by
contrast, Congress was not silent and plainly intended to make
criminal the act of reentering the United States following a
deportation.

   For the foregoing reasons and those stated in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1986