“You Cannot Hide Behind Your Own Alias” – United States v. Marte and the Limits of §1326(d) Collateral Attacks

I. Introduction

United States v. Jose Miguel Marte, No. 24-1540 (3d Cir. June 9, 2025) confronts a recurring question in illegal-re-entry prosecutions: When may a defendant collaterally attack the underlying deportation order under 8 U.S.C. §1326(d)?

Marte, removed from the United States three times, was indicted in 2021 for illegal re-entry. He moved to dismiss the indictment, claiming (1) lack of notice of his 1995 in-absentia deportation hearing and (2) ineffective assistance of counsel during a 1997 follow-up hearing. The District Court denied the motion; Marte pleaded guilty while preserving appeal on that ruling. The Third Circuit affirmed, giving us a concise but consequential clarification:

II. Summary of the Judgment

• Main holding: The 1995 in-absentia deportation order was not “fundamentally unfair” within the meaning of §1326(d) because (a) the Government mailed hearing notice to the last address supplied by the defendant, and any delivery failure stemmed from the defendant’s own false alias, and (b) the record did not establish constitutionally ineffective assistance in later immigration proceedings.
• Consequences: Without showing fundamental unfairness, Marte’s collateral attack fails; his §1326 prosecution stands. The court also rejected his complaint that the District Court did not rule on a pending suppression motion, noting his guilty plea severed the point.
• Disposition: Conviction affirmed.

III. Detailed Analysis

A. Precedents Cited and Their Influence

1. United States v. Charleswell, 456 F.3d 347 (3d Cir. 2006) – Established the “fundamental unfairness + prejudice” test for §1326(d) attacks. The panel quoted Charleswell repeatedly to define the governing standard.
2. Sabir v. Gonzales, 421 F.3d 456 (7th Cir. 2005) – “An alien should not be able to make himself unreachable…” The Third Circuit used this language to underscore that self-created notice defects cannot support relief.
3. Luntungan v. Attorney General, 449 F.3d 551 (3d Cir. 2006) – Clarified that the now-repealed 8 U.S.C. §1252b governs pre-1997 proceedings. The court relied on §1252b’s service rules.
4. Ramos-Olivieri, 624 F.3d 622 (3d Cir. 2010) & Adeyemo, 383 F.3d 558 (7th Cir. 2004) – Both confirm that mailing notice to the last provided address is statutorily sufficient.
5. Fadiga v. Attorney General, 488 F.3d 142 (3d Cir. 2007) – Provides the two-part ineffective-assistance framework (deficient performance + prejudice) applied here.
6. United States v. Porter, 933 F.3d 226 (3d Cir. 2019) – Holds a voluntary guilty plea waives suppression claims when the conviction does not ‘in any way’ rely on the challenged evidence.

B. The Court’s Legal Reasoning

1. Statutory Notice Was Met
   • Section 1252b deemed mailed notice “sufficient” if sent to the respondent’s last provided address.
   • Marte personally received and signed the Order to Show Cause, which warned him to update address information.
   • The Government mailed the hearing notice to “726 E. Allegheny Ave., Philadelphia,” exactly the address Marte gave, but under the alias “Antonio Sosa-Hernandez.”
   • Because Marte’s deliberate false name caused the letter to be returned, any failure of actual receipt was foreseen—and self-inflicted.
   • Fundamental unfairness therefore could not be predicated on non-receipt.
2. Ineffective Assistance Claim Failed
   • Under Fadiga, Marte had to show (a) counsel’s representation fell below “competent assistance” and (b) a “reasonable likelihood” of a different outcome.
   • The scant record showed counsel appeared at the 1997 hearing; Marte provided no evidence of conflicts, no proffered basis for withholding of removal, and no documentation of “substantial assistance.”
   • Absent prejudice, no fundamental unfairness.
3. Suppression Motion Mooted by Plea
   • Marte knowingly pled guilty while the motion was pending; the conviction did not rely on the disputed evidence; Porter forecloses relief.

C. Impact of the Decision

• Clarifies Third-Circuit position on self-caused notice failures: If the non-receipt is traceable to a defendant’s own deception (alias, wrong address, refusal of mail), fundamental unfairness cannot be shown.
• Elevates evidentiary burden on §1326(d) ineffective-assistance claims: Mere allegations, without documentary proof of prejudice, will not reopen decades-old removal orders.
• Practical effect on defense strategy: Counsel handling illegal-re-entry cases must develop robust factual records (e.g., FOIA files, sworn declarations) before seeking dismissal; otherwise, district courts may summarily reject motions.
• Immigration proceedings: Reinforces the duty to maintain accurate contact information and alerts practitioners that aliases can haunt clients long after proceedings end.
• Plea-agreement drafting: The opinion reiterates that defendants must explicitly reserve suppression issues; silence + guilty plea = waiver.

IV. Complex Concepts Simplified

• Order to Show Cause (OSC): The charging document in pre-1997 deportation cases, analogous to today’s “Notice to Appear.” It states the legal basis for deportation and affords the respondent notice of upcoming proceedings.
• In-absentia Deportation Order: Removal order entered when the respondent fails to appear. Statutes require proof of proper notice; if that is shown, the order is valid even without attendance.
• Fundamental Unfairness (in §1326(d)): A constitutional due-process-type inquiry: Was the earlier removal hearing so defective that using the order in a criminal case offends justice? Requires both defect and prejudice.
• Prejudice (Immigration context): A “reasonable likelihood” that, but for the alleged defect, the alien would have avoided deportation (e.g., by winning relief from removal).
• Ineffective Assistance in Removal Proceedings: Though immigration is civil, the Fifth Amendment’s due-process guarantee incorporates a right to competent counsel when retained. Claims follow a modified Strickland framework.

V. Conclusion

United States v. Marte cements a common-sense but often litigated proposition: a defendant cannot leverage his own evasive conduct to invalidate a prior removal order under §1326(d). By insisting on both statutory compliance and causal prejudice, the Third Circuit joins other circuits in limiting collateral attacks to genuinely unjust cases. The ruling also signals that superficial ineffective-assistance allegations—without corroboration—will not unlock the courthouse door. For prosecutors, it is a validation of long-standing notice practices; for defense counsel, it is a cautionary tale to investigate early and document thoroughly. In the evolving landscape of illegal-re-entry jurisprudence, Marte is a sharp reminder: due process is a shield, not a sword forged from one’s own misrepresentations.