Whether courts evaluating a prior removal order in the context of a criminal prosecution for illegal reentry are required to apply the law as it is now understood, or instead are required to defer to individual immigration officers' prior erroneous determinations

QUESTIONS PRESENTED L Four terms ago, in Esquivel-Quintana v. Sessions, 137 8.Ct. 1562 (2017), this Court held that a conviction under California Penal Code § 261.5(c) is not an aggravated felony, and that the statute defining aggravated felonies was unambiguous in that regard. In 2001, Mr. Segura-Virgen was deported on the sole ground that his conviction under California Penal Code § 261.5(c) was an aggravated felony. He was not provided an opportunity to contest this legal question in removal proceedings. The resulting removal order was used to convict Mr. Segura-Virgen in 2019 of illegal reentry after deportation. The courts below affirmed the use of this removal order against Mr. Segura because, they held, they were required to ignore Esquivel-Quintana and defer to the immigration officer’s underlying determination that the conviction was an aggravated felony. The First, Fourth, Seventh, and (sometimes) Ninth Circuits follow this approach. The Second, Fifth, Tenth and (sometimes) Ninth Circuits, on the other hand, look to the law as it currently stands. This petition therefore first presents the question whether courts evaluating a a prior removal order in the context of a criminal prosecution for illegal reentry are required to apply the law as it is now understood, or instead are required to defer to individual immigration officers’ prior erroneous determinations. I. In United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987), this Court held that the Fifth Amendment prevents the government from using a deportation order to satisfy an element of a crime if the alien defendant’s right to judicial review had been “effectively eliminated” by defects in the proceeding. It held that any waiver of appeal of the deportation order must be “considered and intelligent.” Over the intervening 33 years, the lower courts have reached an impassible disagreement on what advice is required to make a pro se alien’s waiver of appeal “considered and intelligent.” The Second and Ninth Circuits (accounting for about a quarter of all illegal reentry prosecutions) require that the alien be made aware of the right to dispute any dispositive issue. The First, Fourth, Fifth, Seventh, and Tenth Circuits do not require any advice be provided. This case therefore asks, second, whether a pro se alien’s waiver of the right to appeal is “considered and intelligent” under Mendoza-Lopez in the absence of an opportunity to dispute whether his prior conviction is an aggravated felony. -ii