Appeal from a judgment of conviction entered upon a jury verdict in the United States District Court for the District of Vermont, Coffrin, Judge, following the denial of appellant's motion to dismiss a charge of illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326. Affirmed.
Before LUMBARD and CARDAMONE, District Judge.*fn*
The sole issue raised on this appeal is whether a defendant, indicted under 8 U.S.C. § 1362 for unlawful reentry into this country after deportation, may challenge the validity of the original order of deportation as a defense to the prosectuion. We conclude that the underlying deportation is not subject to collateral attack in a § 1362 criminal proceeding and we therefore affirm appellant's conviction.
Appellant, Salvatore Petrella, was admitted to the United States in 1978 as a visitor to inspect and study a training program for machine tool operators in Billerica, Massachusetts. Petrella decided to enroll in the program and a one-year trainee visa was issued by the Immigration and Naturalization Service ("INS"). When the visa expired, he failed to depart voluntarily and a deportation warrant issued. With the aid of retained counsel, who represented him before the INS Petrella delayed his departure from the United States for an additional three years. Finally, a deportation order was issued, from which no appeal for judicial review was perfected. On April 19, 1982, Petrella was arrested and deported to Italy.
Approximately a month later, Petrella flew from Italy to Canada and unsuccessfully attempted to enter this country at Niagara Falls. Undaunted, he again attempted to cross the border at Highgate Springs, Vermont on May 23, 1982. In response to routine questions by Immigration Inspectors, Petrella stated he was an United States Citizen and produced a Social Security Card and a Massachusetts driver's license to support his claim. A search of his automobile yielded an Italian passport and, after further questioning, he was arrested and charged with willfully making a flase claim of citizenship, 18 U.S.C. § 911, and with attempting to enter the United States without authorization after deportation, 8 U.S.C. § 1326.*fn1
Prior to trial, Petrella moved to dismiss the indictment on the ground that the 1979 deportation proceedings did not comport with due process. The District Court refused to review the merits of the deportation and denied the motion. On July 21, 1982, a jury found appellant guilty on both charges.
In United States v. Spector, 343 U.S. 169, 172-73, 96 L. Ed. 863, 72 S. Ct. 591 (1952), the Supreme Court reserved decision on whether a defendant may relitigate the issue of original deportability in a criminal prosectuion in which the prior deportation is an element of the offense. The courts of appeals that have addressed the question in the context of a § 1326 prosecution are divided as to whether collateral attacks are permissible.
The Third, Seventh and Ninth Circuits have approved varying degrees of trial court review of the underlying deportation. See e.g., United States v. Rosal-Aguilar, 652 F.2d 721, 722-23 (7 Cir. 1981) (government must prove the deportation was "based on a valid legal predicate and obtained according to law"); United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9 Cir. 1980) (defendant entitled to demonstrate that a violation of an INS regulation prejudiced a protected interest); United States v. Bowles, 331 F.2d 742, 750 (3 Cir. 1964) (defendant permitted to show there was no factual or legal basis for his deportation).
The Eighth Circuit, while indicating that a limited pretrial review of the deportation hearing may be permissible in some circumstances, Hernandez-Uribe v. United States, 515 F.2d 20, 22 (8 Cir. 1975), cert. denied, 423 U.S. 1057, 96 S. Ct. 791, 46 L. Ed. 2d 647 (1976), has not squarely addressed the question. See United States v. Cabrera-Quintero, 650 F.2d 942, (8 Cir. 1981).
The Fifth Circuit, after careful analysis of the elaborate scheme of administrative and judicial review already available to an alien under other provisions of the Immigration and Nationality Act ("INA"), has determined that congress intended to bar collateral attacks on deportation orders in § 1326 prosecutions. United States v. De La Cruz-Sepulveda, 656 F.2d 1129, 1131 (5 Cir. 1981); United States v. Gonzalez-Parra, 438 F.2d 694, 697 (5 Cir.), cert. denied, 402 U.S. 1010, 91 S. Ct. 2196, 29 L. Ed. 2d 433 (1971). The Tenth Circuit, in ...