481 U. S. 828
May 26, 1987
Mendoza-Lopez was an illegal immigrant who was caught and deported. When he returned to the United States afterward, he was prosecuted on the felony charge of re-entering after deportation. Mendoza-Lopez sought to challenge the prosecution on the grounds that the original deportation had been unlawful, due to an uninformed waiver of his right to challenge the deportation. The question was whether an unlawful deportation could serve as a valid legal defense to the felony of returning after deportation.
The Court ruled 5-4 that this must be allowed as a valid defense. Marshall wrote the majority opinion, which admitted that the law in question did not actually discriminate in its text between lawful and unlawful deportations. Nonetheless, the majority held that due process required some opportunity to challenge an unlawful deportation. Marshall distinguished a prior case when an unlawful conviction was held not to matter. In that case, he said, judicial review was available elsewhere, but due to the waiver entered by Mendoza-Lopez, no other opportunity for judicial correction existed.
Rehnquist, joined by White and O’Connor, dissented. He did not think the original deportation procedures were in any way unlawful. At worst, all that went wrong was Mendoza-Lopez failing to understand certain privileges he retained, and that alone could not amount to some unconstitutional violation of due process. Scalia dissented too. He accepted for argument’s sake that the deportation was unlawful, but thought the majority had overstated the significance of the waiver. If that waiver really was made unknowingly, Scalia thought that he would be able to challenge it through some legal process. He also thought it was Constitutional to punish re-entry even if the original deportation was unlawful.
If a deportation truly is unlawful, I do think due process requires that this be a defense in a felony prosecution for re-entry. For the reasons described in the Rehnquist dissent though, I don’t think the deportation was unlawful in this case. Offhand, I would like to point out the sharp irony of immigrating to America in violation of its laws, and then protesting that your subsequent deportation was in violation of its laws. To be fair, it is true that God’s commands in the Torah place a moral obligation on America to welcome oppressed foreigners. Out of love for our neighbors, most immigration restrictions must be abolished. At the same time, it is still lawless hypocrisy to unrepentantly break a nation’s laws and then demand the protection provided by other laws of that nation. Until the day of legally open borders comes, immigrants and deporters alike should take care to avoid the easy sin of self-righteousness.