Does a defendant charged with illegal reentry have a Fifth Amendment right to collaterally attack the underlying removal order?

MultiRegion, United States of America

The following excerpt is from United States v. Perez-Juarez, No. 2:15-cr-00063-KJM (E.D. Cal. 2015):

8 U.S.C. 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th Cir. 2004) ("A defendant charged with illegal reentry under 8 U.S.C. 1326 has a Fifth Amendment right to collaterally attack [her] removal order because the removal order serves as a predicate element of [her] conviction." (citation omitted)). "An underlying removal order is fundamentally unfair if: (1) [a defendant's] due process rights were violated by defects in [her] underlying deportation proceeding, and (2) [she] suffered prejudice as a result of the defects." Ubaldo-Figueroa, 364 F.3d at 1048 (internal quotation marks omitted, first alteration in original).

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