Room to Challenge a Prior Order of Removal/Deportation

On August 1, 2006, the Third Circuit reversed a reentry conviction, remanding with direction that the district court determine whether the alien was prejudiced by a fundamentally unfair reinstatement proceeding. United States v. Charleswell, No. 04-4513, 2006 WL 2129678 (3d Cir. Aug. 1, 2006).
Charleswell was a lawful permanent resident when he was convicted of possession of marijuana with intent to distribute, and the INS instituted deportation proceedings in 1991. Charleswell sought relief from deportation under then-available section 212(c). The Immigration Judge erroneously ruled that Charleswell was ineligible for such relief (mistakenly believing the Virgin Islands was not a U.S. territory), but Charleswell did not appeal and was deported in 1992. In 1997 he was found in Maryland and the INS issued a Notice to Reinstate the prior deportation order. Charleswell was deported in 2001 pursuant to that reinstatement. He was found in the Virgin Islands in 2002 and prosecuted for reentry, and sought to challenge the validity of his original deportation order as well as the reinstatement.
The Third Circuit recognized that, under 18 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828 (1987), a reentry defendant can collaterally challenge the validity of his prior deportation proceeding if he establishes that (1) he exhausted administrative remedies, (2) the hearing effectively eliminated the right to judicial review, and (3) the prior hearing was fundamentally unfair. Because Charleswell had failed to appeal the initial deportation order, the collateral attack was focused on the reinstatement order.
The Court agreed that Charleswell met the first element, because no administrative remedies are available to a reinstatement order. The Court’s key ruling came on the second element. The Court rejected the district court’s conclusion that judicial review was available. While an alien does have the right to appeal a reinstatement order, Charleswell did not have an attorney and he was never advised of his right to appeal the reinstatement order. Also, Charleswell had checked the reinstatement notice form indicating his desire to contest deportation. Under these circumstances, the Court concluded that Charleswell was "effectively denied an opportunity to seek judicial review." The Court directed strong language to the government suggesting that it amend its reinstatement form to reflect the right to appeal.
As to the third element, the Court held that an alien must show both that the prior proceeding suffered a fundamental defect and that the alien was thereby prejudiced. The court concluded that the INS’s failure to advise Charleswell of his right to appeal was fundamentally unfair. However, the Court remanded to the district court to determine whether Charleswell was prejudiced, i.e., "whether there is a reasonable probability that Charleswell would have obtained relief had he not been denied the opportunity for direct judicial review."