Whether the failure to inform an alien of his eligibility for discretionary relief in a removal proceeding is a due process violation that can make the proceeding fundamentally unfair

QUESTION PRESENTED A predicate element of an illegal-reentry offense under 8 U.S.C. § 1326 is that, . before reentering, the defendant was deported while a removal order was outstanding. 8 U.S.C. § 1326(a)(1). If a defendant shows that the predicate removal order was obtained in violation of due process, then the prior-deportation element cannot be satisfied and the indictment must be dismissed. See United States v. Mendoza-Lopez, 481 U.S. 828, 842 (1987). After Mendoza-Lopez, a noncitizen being prosecuted for the crime of illegal reentry may challenge the validity of the underlying removal order by showing that, among other things, the “entry of the order was fundamentally unfair,” 8 U.S.C. §1326(d)(3), or in other words, violated due process. Petitioner challenged his illegal-reentry prosecution on the ground that the entry of his removal order was fundamentally unfair because he was deprived of the opportunity to seek discretionary relief from removal. Acknowledging a division in the circuits, the Fifth Circuit ruled that failure to inform an alien of his eligibility for discretionary relief from removal does not violate due process. The question presented is: Whether the failure to inform an alien of his eligibility for discretionary relief in a removal proceeding is a due process violation that can make the proceeding fundamentally unfair. i