Brief for Amicus Curiae National Association Of Criminal Defense Lawyers in Support of the Respondent.
Argument: Administrative proceedings do not guarantee participants the assistance of counsel, the privilege against self-incrimination, the right to confront and cross-examine witnesses, and various other protections that apply in a criminal trial. For these reasons, administrative proceedings do not typically preclude parties from relitigating any fact decided in the agency hearing at a subsequent criminal trial. The government’s prosecution of a noncitizen for unlawful reentry under 8 U.S.C. § 1326 is a notable departure from this general rule. Due process requires that § 1326 defendants be afforded some meaningful opportunity to obtain judicial review of the proceeding that is the foundation for the government’s prosecution. The Court should therefore allow Respondent to challenge the validity of his removal order in the criminal proceedings, even though he has not satisfied the requirements set forth in 8 U.S.C. § 1326(d).