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, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statutes involved Statement Argument Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-7a) is reported at 781 F.2d 111. The opinion of the district court (App., infra, 8a-26a) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 31, 1985. A petition for rehearing was denied on March 18, 1986 (App., infra, 29a). On May 6, 1986, Justice Blackmun extended the time for filing a petition for a writ of certiorari to and including June 16, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 1. 8 U.S.C. 1105a provides in pertinent part: (a) * * * The procedure prescribed by, and all the provisions of chapter 158 of title 28 (review of orders of federal agencies) shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation, heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title (proceedings to determine deportability) or comparable provisions of any prior Act, except that -- * * * * * (6) * * * if the validity of a deportation order has not been judicially determined, its validity may be challenged in a criminal proceeding against the alien for violation of subsection (d) or (e) of section 1252 of this title (supervision of deportable alien and penalty for willful failure to depart) only by separate motion for judicial review before trial * * * . * * * * * (9) any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings. * * * * * (c) An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. 2. 8 U.S.C. 1326 provides: Any alien who -- (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment of not more than two years, or by fine of not more than $1,000, or both. QUESTION PRESENTED Whether a defendant prosecuted under 8 U.S.C. 1326 for reentering the United States after having been deported may collaterally attack the validity of his deportation proceeding. STATEMENT 1. Respondents and 11 other aliens were found deportable at a joint deportation hearing before an immigration judge in October 1984. Respondents did not appeal the deportation order. /1/ They were escorted across the border at El Paso and given a form that stated, in Spanish and English, that they would be subject to felony charges if they returned. Two months later, respondents were discovered in Lincoln, Nebraska. They were arrested and indicted for violating 8 U.S.C. 1326, which makes it a crime for any alien who "has been arrested and deported or excluded and deported (to) * * * enter( ), attempt to enter, or (be) found in, the United States" without the Attorney General's permission. App., infra. 9a. The district court dismissed the indictments (App., infra, 27a, 28a). The court first ruled that a defendant in a prosecution under Section 1326 may collaterally attack the validity of the underlying deportation order (App., infra, 18a). It next determined that respondents were denied due process at their deportation hearing, because they had not been made aware that they could apply for suspension of deportation. The court acknowledged that the immigration judge had "technically" complied with the Immigration and Naturalization Service regulation requiring that the defendants be advised that they were eligible for suspension of deportation (App., infra, 22a). /2/ The court stated, however, that its review of the hearing showed that "neither of the defendants in this case was in a position to evaluate (his rights) intelligently" (ibid.). The court went on to conclude that respondents were prejudiced because they might have obtained suspension of deportation had they been able to make an intelligent evaluation of the alternatives open to them (id. at 25a). 2. The court of appeals affirmed (App., infra, 1a-8a). It noted (id. at 2a) that in United States v. Spector, 343 U.S. 169, 172-173 (1952), this Court reserved the question whether a defendant can collaterally attack a deportation order and that the circuits are divided on the issue. /3/ The court then sided with those circuits that have permitted collateral attacks on deportation orders. The court held that "a material element of the offense prohibited by 8 U.S.C. Section 1326 is a 'lawful' deportation and that, therefore, when prosecuting a section 1326 proceeding, the government must prove beyond a reasonable doubt that the defendant illegally entered the United States after being deported according to law" (App., infra, 3a). The court rejected the government's contention that this issue is analogous to the issue presented in Lewis v. United States, 445 U.S. 55 (1980), where this Court held that a defendant in a prosecution for possession of a firearm by a felon could not collaterally attack the validity of his felony conviction. The court of appeals stated that "(i)n Lewis the prior decision was judicial, not administrative" and that "while it can be said that Congress had a legitimate interest in prohibiting the possession of firearms by those whose brushes with the law resulted only in invalid convictions, it cannot likewise be said that Congress intended to expel from this country all aliens, even those who have a legitimate right to be here" (App., infra, 2a-3a n.1). /4/ Judge Fagg, dissenting, noted that "Section 1326 clearly speaks only of the fact and not the quality of a previous deportation" (App., infra, 5a). He argued (ibid.) that just as the Court in Lewis held that Congress did not intend that courts should inquire into the lawfulness of felony convictions under the statute prohibiting possession of a firearm by a convicted felon, the court should not inquire into the lawfulness of previous deportations in prosecutions under Section 1326. Furthermore, he concluded (App., infra, 6a) that review of "the comprehensive scheme for judicial review that is available to aliens under 8 U.S.C. 1105a showed that Congress intended that aliens would not be permitted to challenge deportation orders during prosecutions for unlawful reentry (App., infra, 6a-7a). Finally, he noted that there is no constitutional impediment to barring aliens from collaterally attacking the validity of their deportation proceedings in prosecutions under Section 1326 (App., infra, 7a). ARGUMENT The court of appeals incorrectly decided a question of great importance to the administration of the immigration laws. As the court of appeals acknowledged (App., infra, 3a) there is a conflict in the circuits on the issue whether a defendant in a prosecution under Section 1326 may collaterally attack the validity of the underlying deportation order. The issue is important because the government brings a large number of prosecutions under Section 1326. /5/ Permitting defendants in unlawful reentry cases to attack the validity of their deportation proceedings greatly complicates those prosecutions, which otherwise involve only the simple questions whether the defendant was deported and whether he was subsequently found in the United States without the Attorney General's permission. As the dissenting judge in the court of appeals stated, Congress has provided three "sole and exclusive" procedures for obtaining judicial review of the validity of a deportation proceeding, and review as part of a Section 1326 prosecution is not one of the three enumerated procedures. In these circumstances review of this recurring question is plainly warranted. /6/ 1. There is a clear conflict in the circuits, as the court of appeals acknowledged (App., infra, 3a). The Second (Petrella, supra note 3, 707 F.2d at 66-67), Fifth (Gonzalez-Parra, supra note 3, 438 F.2d at 697), and Tenth (Arriaga-Ramirez, supra note 3, 325 F.2d at 859) Circuits have held that collateral attacks on the validity of deportation hearings are not permitted in Section 1326 prosecutions. The Eighth Circuit in this case, along with the Ninth Circuit (Gasca-Kraft, supra note 3, 522 F.2d at 152), have permitted collateral attacks. The Third Circuit permits collateral attacks in at least some circumstances (Bowles, supra note 3, 331 F.2d at 750). And the Seventh Circuit has permitted limited collateral attacks on the underlying deportation proceedings (Rosal-Aguilar, supra note 3, 652 F.2d at 723). The conflict in the circuits is therefore now well established, and without this Court's intervention, it is likely to persist. /7/ 2. On the merits, we submit that the court of appeals erred in permitting respondents to attack the validity of their deportation hearing in a prosecution for reentering the United States. Section 1326 provides that it is a crime for an alien to reenter the United States without the permission of the Attorney General after having been deported. The statute says nothing about the validity of the order that authorized the alien's prior deportation. There is therefore nothing in the language of Section 1326 to suggest that the validity of the prior deportation proceeding is, in effect, an element of the offense. The provision of the Immigration and Nationality Act that deals expressly with judicial review of deportation orders (8 U.S.C. 1105a) provides strong support for the view that Congress did not intend to permit collateral attacks on the validity of deportation hearings in Section 1326 prosecutions. Section 1105a(a) provides that the procedure under which orders of federal agencies are reviewed in the federal courts of appeals (see 28 U.S.C. 2341 et seq.) is the "sole and exclusive procedure for * * * judicial review of all final orders of deportation." Thus, an alien may obtain review of a deportation order by exhausting his administrative remedies and filing a petition for review within six months of the date of the final deportation order (8 U.S.C. 1105a(a)(1)). Section 1105a provides only two exceptions to the rule that review of the deportation order in the court of appeals is the sole and exclusive method judicial review. The first exception, found in Section 1105a(a)(9), provides that an alien "held in custody pursuant to an order of deportation may obtain judicial review * * * by habeas corpus proceedings." The second exception, which is codified in 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(a) for failure to depart after being ordered to do so. That exception makes it clear that Congress knew how to permit collateral attacks on the validity of deportation proceedings in criminal prosecutions. The fact that Congress did not provide an exception in the case of prosecutions for reentering the United States in violation of Section 1326, while it did in the case of prosecutions for failure to depart in violation of Section 1252(d), makes it all the more clear that it did not intend to permit collateral attacks in unlawful reentry cases. /8/ Contrary to the suggestion of the court of appeals (App., infra, 4a), prohibiting collateral attacks on deportation proceedings in Section 1326 prosecutions does not violate due process. In Lewis, the Court held that Congress could constitutionally focus "on the mere fact of conviction, regardless of the validity of the conviction, as a way to keep firearms away from potentially dangerous persons" (445 U.S. at 67). The Court noted that a convicted felon could "challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm" (ibid.). In the case of deported aliens, Congress could rationally determine to limit the elements of the criminal offense to (1) a reentry into the United States, (2) without the Attorney General's permission, (3) by a previously deported alien. Like a convicted felon, an alien who is subject to a deportation order has alternative avenues for obtaining relief. He may challenge the validity of the deportation order in the ways enumerated in Section 1105a or he may attempt to obtain the Attorney General's permission before reentering the United States. The statutory scheme is not unconstitutional on the ground that the primary method for challenging deportation orders -- through review by a court of appeals of a final order of deportation (8 U.S.C. 1105a(a)) -- is a civil proceeding. In Yakus v. United States, 321 U.S. 414, 443-446 (1944), the Court upheld the Emergency Price Control Act against a similar constitutional challenge. The Act provided that a person subject to a maximum price regulation could challenge its validity only through a civil proceeding; a defendant could not challenge the validity of a maximum price regulation in a criminal proceeding for violating the regulation. The Court found no constitutional infirmity in that statutory scheme. In reaching that conclusion, the Court stated (321 U.S. at 444) that there is "no principle of law or provision of the Constitution which precludes Congress from making criminal the violation of an administration regulation, by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity." Despite the holding in Yakus, the dissenters in Spector contended that the Constitution requires that an alien be shown to be deportable before he can be convicted of unlawfully failing to depart (343 U.S. at 177-180). Some of their concerns, however, were addressed by Congress when it subsequently enacted Section 1105a. First, at the time Spector was decided it was not clear that deportation orders could be subjected to judicial review (see 343 U.S. at 179 (Jackson & Frankfurter, JJ., dissenting)); Section 1105a(a) now makes it clear that deportation orders are reviewable by the courts of appeals. Second, the dissenters in Spector were concerned that some aliens ordered deported might not find a country that would accept them (343 U.S. at 179-180) (Jackson & Frankfurter, JJ.)); because Section 1105a(a)(6) authorizes judicial review of the validity of a deportation order in the case of an alien who is prosecuted for failing to leave the country, an alien who cannot find a country that will accept him can obtain judicial review of the validity of the deportation order even if he has not pursued an appeal under Section 1105a(a). There is, therefore, no constitutional principle requiring that "a deported alien who fails to invoke the procedures of 8 U.S.C. Section 1105a be permitted to contest the factual basis for the deportation order after he has reentered the country" (Gonzalez-Parra, 438 F.2d at 699). For that reason, there is no need to avoid a difficult constitutional issue by construing Section 1326 to require the government to prove as an element of the crime of unlawful reentry that the defendant was "lawfully" deported. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General STEPHEN S. TROTT Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General JUNE 1986 /1/ Respondents could have appealed the immigration judge's order to the Board of Immigration Appeals (8 C.F.R. 242.21) and then to a federal court of appeals (8 U.S.C. 1105a(a)). /2/ The applicable regulation (8 C.F.R. 242.17(a)) provides that "(t)he special inquiry officer shall inform the respondent of his apparent eligibility to apply for any of the benefits enumerated in this paragraph (which include suspension of deportation) and shall afford him an opportunity to make application therefor during the hearing." /3/ The court listed (App., infra, 3a) United States v. Petrella, 707 F.2d 64 (2d Cir.), cert. denied, 464 U.S. 921 (1983); United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir.), cert. denied, 402 U.S. 1010 (1971); and Arriaga-Ramirez v. United States, 325 F.2d 857 (10th Cir. 1963), as not permitting collateral attack; it listed United States v. Rosal-Aguilar, 652 F.2d 721 (7th Cir. 1981), and United States v. Gasca-Kraft, 522 F.2d 149 (9th Cir. 1975), and United States v. Bowles, 331 F.2d 742 (3d Cir. 1964), as permitting collateral attack. /4/ The court of appeals briefly addressed the question whether the district court was correct in holding that the deportation hearing was invalid. The court concluded that the district court had not clearly erred in that regard (App., infra, 4a). /5/ The Immigration and Naturalization Service informs us that during 1985 United States Attorneys authorized 1,185 prosecutions under Section 1326. /6/ We have not presented for this Court's review the question whether the district court erred in concluding that the deportation proceeding in this case was unlawful. We note nevertheless that the district court found only a "technical" violation of the required procedures (App., infra, 22a). Furthermore, contrary to the district court's conclusion, it is highly unlikely that respondents were prejudiced as a result of the immigration judge's failure to explore the possibility that they might qualify for suspension of deportation. Suspension of deportation is an extraordinary remedy that is seldom granted, and its requirements have been strictly applied. See INS v. Rios-Pineda, No. 83-2032 (May 13, 1985); INS v. Phinpathya, 464 U.S. 183 (1984); INS v. Jong Ha Wang, 450 U.S. 139 (1981). /7/ We suggested in our opposition to the petition for a writ of certiorari in Petrella (at 7) that the conflict might not persist because the circuits permitting collateral attack might be persuaded to change their position in light of this Court's decision in Lewis. The Court denied the petition in Petrella over two dissents. Petrella v. United States, cert. denied, 464 U.S. 921 (1983) (White & Blackmun, JJ.). It is now clear that the conflict has persisted in spite of Lewis. The Ninth Circuit has recently reaffirmed its rule permitting collateral challenges to deportation proceedings (United States v. Nicholas-Armenta, 763 F.2d 1089, 1090 (1985)), and the Eighth Circuit in this case has adopted the Ninth Circuit's approach. /8/ Another portion of the judicial review statute (8 U.S.C. 1105a(c)) provides that an "order of deportation or of exclusion shall not be reviewed by any court if the alien * * * has departed from the United States after the issuance of the order." It is difficult to see how Congress could have made it any clearer that it did not intend to permit collateral attacks on the validity of deportation proceedings except where such challenges were specifically authorized. APPENDIX