United States v. Encarnacion Gonzalez-Villalobo

Defendant Encarnación Gonzalez-Villalobos appeals his conviction for illegal reentry after a prior deportation in violation of 8 U.S.C. § 1326 . In the district court he moved to dismiss the indictment on the ground that the prior deportation order was fundamentally unfair. See 8 U.S.C. § 1326 (d). After the district court denied his motion, Gonzalez-Villalobos entered a conditional guilty plea, preserving his right to appeal the denial of the motion. On appeal, he renews his challenge to the prior deportation order.

When a defendant collaterally attacks the validity of a prior deportation order in a § 1326 prosecution, he must show that he exhausted his administrative remedies, that the deportation proceedings improperly deprived him of the opportunity for judicial review, and that entry of the prior deportation order was fundamentally unfair. See 8 U.S.C. § 1326 (d)(l)-(3). As we explain below, we have generally found that where an alien was deprived of the opportunity to exhaust his administrative remedies, satisfying § 1326(d)(1), he also has shown that he was deprived of the opportunity to seek judicial review, satisfying § 1326(d)(2). Here, Gonzalez-Villalobos has…