Home > Journals > WMLR > Vol. 66 (2024-2025) > Iss. 3 (2025)
William & Mary Law Review
Abstract
While there is much to say about the current state of the U.S. immigration system, this Note focuses on what happens to many aliens when they are subsequently criminally charged with the felony of illegally reentering the United States. When an alien was previously subject to deportation and later indicted on criminal charges of illegal reentry, a provision in 8 U.S.C. § 1326 allows the alien to collaterally attack the underlying removal order if it was fundamentally unfair. In light of the current political conversations surrounding the U.S. immigration system, this Note advocates for ensuring that asylum and removal hearings adhere to due process requirements and recognize the human factors involved, despite the reality that the current political discourse often glosses over these factors.
This Note discusses the collateral attack process in general but focuses on a current split among the district courts within the United States Court of Appeals for the Fourth Circuit regarding which party (the government or the alien) bears the burden of proving whether an appellate waiver was knowingly and intelligently made. Part I provides necessary background information on immigration removal hearings and the rights of aliens during such hearings. Part II provides background information on 8 U.S.C. § 1326 collateral attacks and the general process involved. Part III examines the current split among district courts in the Fourth Circuit regarding the appellate waiver burden of proof and argues that the government should bear this burden, as it already does in some criminal plea agreements. Part IV explores the potential impacts of changing the burden of proof to the government during collateral attack proceedings and other potential efforts to mitigate these impacts.
This abstract has been taken from the author's introduction.
