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Defendant Bears Burden of Proof in a Collateral Attack on a Deportation Order

By FindLaw Staff on June 08, 2010 | Last updated on March 21, 2019

In US v. Arita-Campos, No. 09-2368, the Seventh Circuit faced a challenge to a conviction of defendant for illegal re-entry after being deported in violation of 8 U.S.C. section 1326(a), claiming that the 1994 order of deportation could not serve as the basis for the underlying offense as it was entered in absentia. 

In order to collaterally attack an underlying deportation order, it is the defendant's burden to satisfy the three requirements contained in section 1326: (1) that the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 

Here, the court held that the defendant cannot establish any of the elements required by section 1326, and as such, affirmed the district court's denial of defendant's motion to dismiss the indictment.

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