In the context of entertaining a collateral attack on prior deportation during a subsequent prosecution for illegal reentry under 8 U.S.C. s 1326(a), the Third Circuit has held that an alien bears the burden of proving (by a preponderance of the evidence) the invalidity of a written waiver of rights that he signed in the deportation proceeding. The case is Richardson v. U.S., No. 07-4409 (3/4/09). The defense to illegal reentry in this case was that the original deportation was flawed for various reasons. Collateral attacks on deportation orders can be mounted if administrative remedies seeking relief from the order have been exhausted, the alien was improperly deprived judicial review in the deportation proceeding, and the entry of the deportation order was fundamentally unfair.
Here, the Court turned away a collateral attack on the deportation order because the alien had signed a written waiver of rights during the deportation proceeding, and he had not proven the waiver invalid. In the course of reaching this conclusion, the Court noted several open questions in this circuit, none of which needed to be reached in this case:
(1) whether ineffective assistance of counsel constitutes an excuse for failure to exhaust administrative remedies;
(2) whether the exhaustion requirement is prudential or jurisdictional; and
(3) whether, under the fundamentally-unfair prong, an alien may demonstrate prejudice by showing that there was a reasonable likelihood that relief from deportation under former Section 212(c) of the INA (8 U.S.C. s 1182(c)) would have been granted, despite the fact that the Attorney General retains complete discretion over the granting of relief.