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A collateral attack on a deportation order must show a violation of the defendant’s due process right and prejudice.

Melendez-Castro appealed his conviction of illegal reentry into the United States after being deported. A native of Mexico, he became a legal resident of the U.S. in 1988. In 1997, he appeared in front of an Immigration Judge (“IJ”) on charges that his two criminal convictions made him subject to removal. The IJ determined that he was deportable, and told him that he was eligible to apply for cancellation of removal. He decided not to apply because of the complexity and time-consuming nature of the process. The IJ also informed him that he was eligible for voluntary departure, but that it would not be granted because of his criminal convictions. Melendez-Castro waived his right to apply for voluntary departure and was deported but ultimately returned. In 2010 he was indicted for illegal reentry. He filed a motion to dismiss, arguing that his deportation was invalid. The district court denied the motion and he was convicted. On appeal, the Court found that his deportation was invalid because the IJ’s declaration that a voluntary departure application would be futile denied Melendez-Castro of his due process right to apply for relief. Melendez-Castro’s subsequent waiver of this right was invalid because it was not made in a “considered” and “intelligent” manner as required by case law. However, to succeed in attacking a deportation order, the defendant must also show prejudice. Because the lower court did not acknowledge the due process violation, it did not consider the issue of prejudice. The Court remanded the case back to the district court for consideration of the prejudice issue in light of the due process violation. REMANDED.