UNITED STATES v. MENDOZA-LOPEZ

JUSTICE MARSHALL delivered the opinion of the Court.

In this case, we must determine whether an alien who is prosecuted under 8 U. S. C. § 1326 for illegal entry following deportation may assert in that criminal proceeding the invalidity of the underlying deportation order.

I

Respondents, Jose Mendoza-Lopez and Angel Landeros-Quinones, were arrested at separate locations in Lincoln, Nebraska, on October 23, 1984, by agents of the Immigration and Naturalization Service. On October 30, 1984, they were transported to Denver, Colorado, where a group deportation hearing was held for respondents along with 11 other persons, all of whom were, like respondents, Mexican nationals.1 After the hearing, respondents were ordered deported and were bused to El Paso, Texas. They were deported from El Paso on November 1, 1984. Each received, at the time of his deportation, a copy of Form I-294, which advised, in both Spanish and English, that a return to the United States without permission following deportation would constitute a felony.

On December 12, 1984, both respondents were once again separately arrested in Lincoln, Nebraska. They were subsequently indicted by a grand jury in the District of Nebraska on charges of violating 8 U. S. C. § 1326, which provides:

"Any alien who —

Respondents moved in the District Court to dismiss their indictments, on the ground that they were denied fundamentally fair deportation hearings. They contended that the Immigration Law Judge inadequately informed them of their right to counsel at the hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation.3

The District Court ruled that respondents could collaterally attack their previous deportation orders. United States v. Landeros-Quinones, CR 85-L-06 (Feb. 28, 1985). It rejected their claims that they were not adequately informed of their right to counsel. It found, however, that respondents had apparently failed to understand the Immigration Judge's explanation of suspension of deportation.4 The District Court concluded that respondents had not made knowing and intelligent waivers of their rights to apply for suspension of deportation or their rights to appeal, finding it "inconceivable that they would so lightly waive their rights to appeal, and thus to the relief they now claim entitlement, [sic] if they had been fully apprised of the ramifications of such a choice." App. to Pet. for Cert. 23a. Holding that the "failure to overcome these defendants' lack of understanding about the proceedings, which is apparent from listening to the tape recording, totally undermined the reliability of the proceedings" and that "substantial justice was not done," the District Court dismissed the indictments in both cases. Id., at 26a.

The Court of Appeals for the Eighth Circuit affirmed. 781 F.2d 111 (1985). Noting a conflict among the Circuits regarding whether a defendant prosecuted under § 1326 may collaterally attack a deportation order, the court agreed with those Courts of Appeals that had concluded that a material element of the offense prohibited by § 1326 was a "lawful" deportation. Id., at 112. It went on to state that principles of fundamental fairness required a pretrial review of the underlying deportation to examine whether the alien received due process of law. The Court of Appeals affirmed the District Court's conclusion that there was a due process violation in this case, holding that, "[b]ecause the defendants did not fully understand the proceedings, the hearing was fundamentally unfair, and the deportation order was obtained unlawfully. Thus, it cannot stand as a material element forming the basis of the charges against the defendants." Id., at 113.5

To resolve the conflict among the Circuits,6 we granted certiorari. 479 U.S. 811 (1986). We affirm.

II

In United States v. Spector, 343 U.S. 169 (1952), we left open whether the validity of an underlying order of deportation may be challenged in a criminal prosecution in which that prior deportation is an element of the crime.7 Today, we squarely confront this question in the context of § 1326, which imposes a criminal penalty on any alien who has been deported and subsequently enters, attempts to enter, or is found in, the United States. The issue before us is whether a federal court must always accept as conclusive the fact of the deportation order, even if the deportation proceeding was not conducted in conformity with due process.8

The first question we must address is whether the statute itself provides for a challenge to the validity of the deportation order in a proceeding under § 1326. Some of the Courts of Appeals considering the question have held that a deportation is an element of the offense defined by § 1326 only if it is "lawful,"9 and that § 1326 therefore permits collateral challenge to the legality of an underlying deportation order. The language of the statute, however, suggests no such limitation, stating simply that "[a]ny alien who has been arrested and deported or excluded and deported," 8 U. S. C. § 1326 (1), will be guilty of a felony if the alien thereafter enters, attempts to enter, or is at any time found in, the United States, 8 U. S. C. § 1326(2).

Nor does the sparse legislative history contain any evidence that Congress intended to permit challenge to the validity of the deportation in the § 1326 proceeding. Before § 1326 was enacted, three statutory sections imposed criminal penalties upon aliens who reentered the country after deportation: 8 U. S. C. § 180(a) (1946 ed.) (repealed 1952), which provided that any alien who had been "deported in pursuance of law" and subsequently entered the United States would be guilty of a felony; 8 U. S. C. § 138 (1946 ed.) (repealed 1952), which provided that an alien deported for prostitution, procuring, or similar immoral activity, and who thereafter reentered the United States, would be guilty of a misdemeanor and subject to a different penalty; and 8 U. S. C. § 137-7(b) (1946 ed., Supp. V) (repealed 1952), which stated that any alien who reentered the country after being deported for subversive activity would be guilty of a felony and subject to yet a third, more severe penalty.10 See H. R. Rep. No. 1365, 82d Cong., 2d Sess., 219-220 (1952).

Congress thus had available to it in at least one of the predecessor sections — § 180(a) — express language that would have permitted collateral challenges to the validity of deportation proceedings in a criminal prosecution for reentry after deportation.11 It nonetheless failed to include in § 1326 the "in pursuance of law" language of § 180(a). And while there was, at the time of the enactment of § 1326, some case law suggesting that a collateral attack on a deportation proceeding might under certain circumstances be permitted, that principle was not so unequivocally established as to persuade us that Congress must have intended to incorporate that prior law into § 1326.12

The Immigration and Nationality Act does include sections that limit judicial review of deportation orders. 8 U. S. C. § 1105a provides that, outside of enumerated exceptions, the procedures prescribed by Title 28 of the United States Code for review of federal agency orders "shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." The enumerated exceptions permit an alien to challenge a deportation order, the validity of which has not previously been judicially determined, in a criminal proceeding against the alien for violation of 8 U. S. C. §§ 1252(d) or (e), 8 U. S. C. § 1105a(a)(6), and any alien held in custody pursuant to an order of deportation may obtain judicial review of that order in a habeas corpus proceeding, 8 U. S. C. § 1105a(a)(9). These sections are not directly applicable to this case, since respondents did not ask the District Court to vacate their deportation orders and the court did not do so. It ruled only that the orders could not properly be used as the predicate for a § 1326 conviction. Yet the text of § 1105a indicates that Congress considered and addressed some of the various circumstances in which challenges to deportation orders might arise and did not mention § 1326. See also 8 U. S. C. § 1101(g) ("For the purposes of this chapter any alien ordered deported . . . who has left the United States, shall be considered to have been deported in pursuance of law . . ."); but see Mendez v. INS, 563 F.2d 956, 959 (CA9 1977).13

The text and background of § 1326 thus indicate no congressional intent to sanction challenges to deportation orders in proceedings under § 1326.

III

A

That Congress did not intend the validity of the deportation order to be contestable in a § 1326 prosecution does not end our inquiry. If the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process.14

Our cases establish that where 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. See Estep v. United States, 327 U.S. 114, 121-122 (1946); Yakus v. United States, 321 U.S. 414, 444 (1944); cf. McKart v. United States, 395 U.S. 185, 196-197 (1969).15 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.16 The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into the felony of unlawful entry after a deportation. Depriving an alien of the right to have the disposition in 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.17

B

Having established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the question remains whether that occurred in this case. The United States did not seek this Court's review of the determination of the courts below that respondents' rights to due process were violated by the failure of the Immigration Judge to explain adequately their right to suspension of deportation or their right to appeal. Pet. for Cert. 7. The United States has asked this Court to assume that respondents' deportation hearing was fundamentally unfair in considering whether collateral attack on the hearing may be permitted. Tr. of Oral Arg. 6-7. We consequently accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents' rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under § 1326. We think that it did. The Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents, and failed to advise respondents properly of their eligibility to apply for suspension of deportation. Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding. The Government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense.

C

The United States asserts that our decision in Lewis v. United States, 445 U.S. 55 (1980), answered any constitutional objections to the scheme employed in § 1326. In Lewis, the Court held that a state-court conviction, even though it was uncounseled and therefore obtained in violation of the Sixth and Fourteenth Amendment rights of the defendant under Gideon v. Wainwright, 372 U.S. 335 (1963), could be used as a predicate for a subsequent conviction under § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U. S. C. App. § 1202(a)(1), which forbade any person convicted of a felony from receiving, possessing, or transporting a firearm. We do not consider Lewis to control the issues raised by this case. The question in Lewis was whether Congress could define that "class of persons who should be disabled from dealing in or possessing firearms," 445 U. S., at 67, by reference to prior state felony convictions, even if those convictions had resulted from procedures, such as the denial of counsel, subsequently condemned as unconstitutional.18 The Court there rejected Lewis' statutory challenge, holding that Congress had manifested no intent to permit collateral attacks upon the prior state convictions in federal criminal proceedings, and further held that this use of uncounseled prior convictions did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. In rejecting the notion that the statute permitted, or the Constitution required, this "new form of collateral attack" on prior convictions, the Court pointed to the availability of alternative means to secure judicial review of the conviction: "[I]t is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm." Ibid.

It is precisely the unavailability of effective judicial review of the administrative determination at issue here that sets this case apart from Lewis. The fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge's determination unavailable to respondents. What was assumed in Lewis, namely the opportunity to challenge the predicate conviction in a judicial forum, was precisely that which was denied to respondents here. Persons charged with crime are entitled to have the factual and legal determinations upon which convictions are based subjected to the scrutiny of an impartial judicial officer. Lewis does not reject that basic principle, and our decision today merely reaffirms it.

Because respondents were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them, the deportation proceeding in which these events occurred may not be used to support a criminal conviction, and the dismissal of the indictments against them was therefore proper. The judgment of the Court of Appeals is

Affirmed.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE O'CONNOR join, dissenting.

I agree with the Court's ruling that the language of 8 U. S. C. § 1326, its history, and other provisions of the Immigration and Nationality Act suggest that Congress did not intend to allow challenges to the validity of a deportation order in a § 1326 proceeding. I also agree with the view that there may be exceptional circumstances where the Due Process Clause prohibits the Government from using an alien's prior deportation as a basis for imposing criminal liability under § 1326. In my view, however, respondents have fallen far short of establishing such exceptional circumstances here. The Court, in reaching a contrary conclusion, misreads the decision of the District Court.

As the Court acknowledges, respondents, in the District Court, claimed only that "the Immigration Law Judge inadequately informed them of their right to counsel at the [deportation] hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation." Ante, at 831; see also United States v. Landeros-Quinones, No. CR85-L-06, p. 8 (Neb., Feb. 28, 1985). Respondents did not claim that the judge failed to explain adequately their rights to appeal or that their waivers of these rights were, as we are told today, "not considered or intelligent." Ante, at 840.

It is true that the District Court, sua sponte, raised the issue whether respondents knowingly waived their rights to appeal the deportation orders. The court, however, treated the issue as subsidiary to its determination that the Immigration Judge did not fully apprise respondents of their rights to apply for suspension of deportation. In ultimately disposing of the issue, the court stated:

The narrow scope of the District Court's resolution of the question whether respondents had effectively waived their appeal rights is further demonstrated by the District Court's examination of the prejudice resulting from the manner in which the deportation hearing was conducted. Determining that a showing of prejudice was a necessary predicate to a successful collateral attack to a prior deportation order, the court concluded that there was a substantial likelihood that respondents were harmed by "the failure of the Immigration Law Judge to fully comply with the provisions of 8 C. F. R. § 242.17," the regulation governing notification of apparent eligibility for suspension of deportation. Id., at 14. Yet, aside from possible harm to respondents resulting from their failure to pursue suspension of deportation relief, the District Court did not identify any prejudice from respondents' failure to appeal. From these findings of the District Court, the most that can be said with certainty is that the court determined that respondents did not understand that they could pursue their claimed eligibility for suspension of deportation in further proceedings.

In affirming the District Court's decision in this case, the Court of Appeals did not at all address the question whether respondents knowingly waived their rights to appeal, but instead limited its discussion to respondents' failure to understand that they could seek suspension of deportation. The Court of Appeals decision thus also does not support this Court's sweeping assertion that "[t]he fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge's determination unavailable to respondents." Ante, at 841.

The Court's desire to inject into this case a finding that respondents suffered from a denial of their rights to appeal for all purposes is understandable. Without such a finding, the only articulated basis for the Court's due process holding is respondents' claim that their deportation orders were invalid because they were not adequately informed that they could apply for suspension of deportation. The Court's acceptance of this latter claim provides little foundation for its decision.

Recognizing that Congress intended to limit the number of aliens qualifying for suspension of deportation, we have interpreted the statutory section providing for such relief, 8 U. S. C. § 1254(a)(1), as establishing strict threshold criteria that must be met before the Attorney General may grant the relief. See INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Phinpathya, 464 U.S. 183 (1984); INS v. Jong Ha Wang, 450 U.S. 139 (1981). Even if all of the requirements of § 1254(a)(1) are satisfied, we have recognized that "it remains in the discretion of the Attorney General to . . . refuse to suspend deportation." INS v. Rios-Pineda, 471 U. S., at 446. Moreover, if the Attorney General decides that relief should be denied as a matter of discretion, he need not even inquire whether an alien meets the threshold statutory requirements. Id., at 449.

The District Court, in deciding whether respondents were adequately apprised of their ability to apply for suspension of their deportations, concluded that the Immigration Judge complied with the technical notice requirements of 8 CFR § 242.17 (1987). Given that suspension of deportation is provided only as a matter of legislative grace and entrusted to the broad discretion of the Attorney General, the Immigration Judge's failure to undertake further efforts to make certain that respondents were fully knowledgeable of this privilege hardly compares to the procedural defects this Court has previously identified as fundamentally unfair. See Rose v. Clark, 478 U.S. 570, 577 (1986) (use of a coerced confession, adjudication by a biased judge), cited ante, at 839, n. 17. The judge's failure to engage respondents in an extended colloquy concerning suspension of their deportations neither "aborted the basic trial process" nor rendered it presumptively prejudicial. 478 U. S., at 578, n. 6.

Conspicuously absent from respondents' arguments to this Court is any suggestion that the Immigration Law Judge employed improper procedures or erroneously applied the law in determining that respondents were deportable. In fact, several factual findings by the District Court below, not mentioned by the Court, suggest that the Immigration Judge expended considerable effort to ensure the fairness of the hearing. For example, the District Court noted that the Immigration Judge commenced the hearing by instructing respondents "that if any of them did not understand any of the proceedings, to raise their hands and their misunderstandings would be addressed so as to eliminate any confusion." United States v. Landeros-Quinones, No. CR85-L-06, p. 9 (Neb., Feb. 28, 1985). Respondents indicated their understanding of this arrangement. Moreover, the Immigration Judge informed respondents that they were entitled to be represented by counsel, and made certain that they received a list of the free legal services available to them. At the conclusion of the hearing, the judge asked respondents whether they wished to accept his ruling that they were deportable, appeal the ruling, or reserve decision, and respondents each stated that they accepted the judge's ruling. Under these circumstances, I cannot say that respondents' deportation proceedings violated the dictates of the Due Process Clause.* I would therefore hold that the courts below erred in concluding that respondents' prior deportation orders may not be used in the § 1326 proceedings brought against them.

JUSTICE SCALIA, dissenting.

When respondents were deported from the United States in October 1984, they were specifically warned that 8 U. S. C. § 1326 made it a felony for them to reenter the United States illegally. Two months later, they were apprehended in the United States and charged with violating § 1326. Respondents assert that even if their reentry was illegal, they cannot lawfully be punished for violating § 1326, because the proceedings in which they were originally deported violated the Due Process Clause.1 I agree with the Court that the lawfulness of respondents' original deportation proceedings is irrelevant to the question whether respondents violated § 1326. I dissent, however, because I do not share the Court's view that the lawfulness of those proceedings is relevant to the question whether respondents may constitutionally be punished if they violated § 1326.

I think it clear that Congress may constitutionally make it a felony for deportees — irrespective of the legality of their deportations — to reenter the United States illegally. See Lewis v. United States, 445 U.S. 55 (1980) (Congress may constitutionally make it a felony for convicted felons — irrespective of the legality of their convictions — to deal in or possess firearms).2 The sole ground upon which the Court attempts to distinguish Lewis is that in this case respondents were completely foreclosed from obtaining "effective judicial review" of their deportations, while in Lewis the felons could have obtained collateral review of their convictions before obtaining firearms. Ante, at 837-840, 841. It is true that the Court in Lewis relied on the availability of collateral review. 445 U. S., at 64, 67. But, contrary to the Court's implication, ante, at 837, neither Lewis nor any of the other cases relied upon by the Court squarely holds that the Due Process Clause invariably forbids reliance upon the outcome of unreviewable administrative determinations in subsequent criminal proceedings. See McKart v. United States, 395 U.S. 185 (1969) (interpreting a statute to permit collateral attack of prior administrative orders); Estep v. United States, 327 U.S. 114 (1946) (same); Yakus v. United States, 321 U.S. 414 (1944) (interpreting a statute to forbid collateral attack of earlier administrative orders).

The Court's apparent adoption of that conclusion today seems to me wrong. To illustrate that point by one out of many possible examples, imagine that a State establishes an administrative agency that (after investigation and full judicial-type administrative hearings) periodically publishes a list of unethical businesses. Further imagine that the State, having discovered that a number of previously listed businesses are bribing the agency's investigators to avoid future listing, passes a law making it a felony for a business that has been listed to bribe agency investigators. It cannot be that the Due Process Clause forbids the State to punish violations of that law unless it either makes the agency's listing decisions judicially reviewable or permits those charged with violating the law to defend themselves on the ground that the original listing decisions were in some way unlawful.

Even if I believed the availability of "effective judicial review" to be relevant, I would still dissent, because review was available here. It is true, as the Court notes, that the District Court found that respondents' waivers of any appeal from the Immigration Judge's deportation order were "not the result of considered judgments," App. to Pet. for Cert. 23a, because they were affected by the Immigration Judge's failure adequately to explain to respondents that they could apply for suspension of deportation, ante, at 839. There is a world of difference, however, between denial of a right to appeal and failure to assure that parties understand the available grounds for appeal and forgo them in a "considered" fashion. Since to my knowledge administrative agencies rarely undertake such assurance, the Court's unbounded and unexplained conception of "effective" denial of a right of appeal, see ante, at 839, n. 17, apparently leads to the peculiar conclusion that administrative proceedings are almost always without judicial review. I reject this conclusion.

Moreover, in concluding that the Immigration Judge's acceptance of respondents' unconsidered waivers effectively denied respondents their rights to appeal, the Court completely ignores the possibility that, notwithstanding their waivers and the fact that they had been deported, respondents could still have appealed their deportations on the ground that the deportations were unlawful and the waivers were unlawfully secured, cf., e. g., Mendez v. INS, 563 F.2d 956, 959 (CA9 1977), or could have brought other collateral challenges to their deportations. I express no view on the question whether such suits would have been permissible under the applicable statutes, see, e. g., 8 U. S. C. § 1101(g), but merely note that a negative answer to that question is a necessary, and entirely unexplained, component of the Court's holding.3

For these reasons, I think that if respondents' reentry into the United States was unlawful, respondents may constitutionally be punished for violating § 1326. I would reverse the contrary judgment of the Court of Appeals.