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Keywords

defendanthearingdue processdeportationjudicial review
defendantstatutehearingmotiondue processdeportationjudicial reviewmotion to dismiss

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El Shami; U.S. v.

Facts

Essam Helmi El Shami immigrated to the United States from Egypt in 1980 and became a permanent resident in 1984. He was convicted of criminal sexual contact and aggravated arson, leading to deportation proceedings initiated by the INS in 1993. Although he was served with an order to show cause, he did not receive written notice of the final deportation hearing scheduled for October 28, 1993, and was subsequently deported to Egypt in 1994 without having the opportunity to contest the charges or seek relief.

The facts underlying El Shami's deportation are as follows. El Shami immigrated to the United States from Egypt in 1980 and became a permanent resident alien in 1984. The defendant married a United States citizen and owned and operated two successful businesses in the New Jersey area.

Issue

Whether the defendant satisfied the requirements for a collateral attack of a prior deportation order under 8 U.S.C. 1326(d) due to the lack of written notice of the deportation hearing.

Whether the INS's failure to provide notice of the hearing in the first instance, he was never apprised of his right to seek section 212 relief and administrative and judicial review.

Rule

To successfully attack a deportation order under 8 U.S.C. 1326(d), a defendant must demonstrate that (1) he exhausted any available administrative remedies, (2) the deportation proceedings deprived him of the opportunity for judicial review, and (3) the entry of the deportation order was fundamentally unfair.

In order to successfully attack the underlying deportation order, the defendant must satisfy three requirements. Wilson, 316 F.3d 506; 8 U.S.C. 1326(d).

Analysis

The court found that El Shami satisfied the first two requirements for a collateral attack because the INS failed to provide him with written notice of the deportation hearing, which prevented him from appearing and contesting the charges. This lack of notice constituted a violation of his due process rights, and the court agreed that he was deprived of the opportunity to seek administrative and judicial review.

Because we find that the INS did not provide El Shami with written notice of the October 1993 deportation hearing as the statute required, we conclude that he satisfies the first two requirements for a collateral attack under 8 U.S.C. 1326(d).

Conclusion

The appellate court vacated the illegal reentry conviction and remanded the case to the district court for re-sentencing.

Because we find that El Shami satisfies the three requirements for a collateral attack of conviction for unlawful reentry of a deported alien under 8 U.S.C. 1326(d), we vacate the judgment of conviction on that count and remand to the district court for re-sentencing.

Who won?

Defendant, Essam Helmi El Shami, prevailed because the court found that the lack of written notice of the deportation hearing violated his due process rights, allowing him to successfully challenge the deportation order.

The United States responds that the district court properly denied the motion to dismiss the illegal reentry charge, because the INS afforded the defendant all due process protections.

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