In denying the defendant’s motion to dismiss his indictment for illegal re-entry into the United States after being deported, the district court reached the right result for the wrong reason.
The defendant’s sought dismissal based solely on United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which held that an administrative removal proceeding marred by due process defects that foreclosed judicial review could not serve as a basis for criminal conviction.
The district court held that it lacked jurisdiction to hear the defendant’s claim because Congress has eliminated district courts’ jurisdiction to review determinations of temporary protected status (TPS). But while the statute on which the district court relied, 8 U.S.C. § 1252, limits a court’s jurisdiction to review immigration determinations, it says nothing about jurisdiction to hear a challenge to a criminal indictment. Here, the defendant didn’t ask for relief from removal; he raised a constitutional challenge to a criminal charge. The district court had jurisdiction to consider this argument.
This court need not resolve the defendant’s novel constitutional question whether the Mendoza-Lopez due process principle extends beyond removal orders to authorize constitutional challenges to TPS denials within criminal prosecutions for illegal reentry. On appeal, the defendant’s sole claim of fundamental unfairness is that the government violated his due process right to a fair and thorough review of the materials in the government’s possession when evaluating his TPS application. But if he had such a due process right, it would only require review of the materials within his TPS application. The government did exactly that. It reviewed the defendant’s submission, found it to be lacking, requested additional evidence to no avail, and only then denied relief.