concurring in the judgment:
I concur in the judgment, but write separately to clarify that the majority’s discussion in Section II. A. should not be misread to permit government conduct that has long been held unconstitutional.
More than fifteen years ago, in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), eight of the nine Supreme Court Justices agreed that a defendant has a constitutional right to collaterally attack a fundamentally unfair deportation order. Thus, to the extent 8 U.S.C.A. § 1326 (West 1999) then permitted “a court ... [to] impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been,” the Court held “the statute does not comport with the constitutional requirement of due process.” Id. at 837, 107 S.Ct. 2148 (emphasis in original).1 And while Chief Justice Rehnquist dissented from the holding of the Court, he “agree[d] with the view that *515there may be exceptional circumstances where the Due Process Clause prohibits the Government from using an alien’s prior deportation as a basis for imposing criminal liability under § 1326.” Id. at 842, 107 S.Ct. 2148 (Rehnquist, C.J., dissenting).
Obviously no lower federal court can overrule the Supreme Court, and I do not believe the majority intends to do that, but I fear that its holding in Section II. A. might be misinterpreted as attempting to do so. In that section, the majority holds Wilson cannot collaterally attack his deportation order because he had no due process liberty or property interest in the § 212(c) discretionary waiver that should have been available at the deportation proceeding. This may be true in Wilson’s case, but if so, it is not the discretionary nature of the relief available at the deportation proceeding that defeats his claim.
Rather, after Mendoza-Lopez, I take it to be quite clear that, regardless of the discretionary nature of relief available at a deportation proceeding, if a defendant’s initial deportation, for example, had been ordered by a biased judge, relying on the knowing use of perjured testimony, or garnered under threat of mob violence, the defendant could collaterally attack this deportation in any subsequent prosecution in which deportation is an element of the crime. Cf. Mendoza-Lopez, 481 U.S. at 839 n. 17, 107 S.Ct. 2148 (declining to enumerate the precise contours of fundamentally fair deportation hearings, but noting that Court had recognized in the criminal context “some errors necessarily render a trial fundamentally unfair,” such as use of coerced confession, adjudication by a biased judge, mob violence, and knowing use of perjured testimony, and stating that “[w]hile the procedures required in an administrative proceeding are less stringent than those demanded in a criminal trial, analogous abuses could operate, under some circumstances, to deny effective judicial review of administrative determinations” (internal quotation marks and citations omitted)). However, the majority’s opinion could be misread to imply that even under these circumstances, a defendant could not show that his original deportation proceeding had been fundamentally unfair because the relief that he sought under § 212(c) was “completely discretionary in nature.” Ante at 510.
The majority is, of course, correct, that “[i]n order to succeed on a due process claim,” a defendant “ ‘must first establish that he had a property or liberty interest at stake.’ ” Ante at 509 (quoting Smith v. Ashcroft, 295 F.3d 425, 429 (4th Cir.2002)). But as the Court recognized in Mendoza-Lopez, a defendant facing criminal prosecution under § 1326 does have a liberty interest at stake — the liberty interest in not being imprisoned on the basis of a fundamentally unfair deportation proceeding that has never been subjected to judicial review. See 481 U.S. at 837, 107 S.Ct. 2148.
The majority states that
Smith’s holding that section 212(c) does not give rise to a due process right ... requires the rejection of Wilson’s collateral attack pursuant to section 1326(d)(3) regardless of whether he is entitled to heightened judicial review requirements by virtue of being subject to criminal prosecution.
Ante at 510, n. 1.
This is true when a defendant’s only claim is that he was deprived of the opportunity for judicial review. Deprivation of judicial review does not equate to a fundamentally unfair administrative hearing. Rather, as the majority correctly notes, fundamental fairness and judicial review are separate elements under Mendoza-Lopez and § 1326(d). See id.
However, when a criminal defendant seeks to collaterally attack his deportation order based on the claim made in Smith— *516that he was deprived of the opportunity for judicial review, see Smith, 295 F.3d at 429, 430 — as well as on a claim not made in Smith — that his initial deportation proceeding had been fundamentally unfair (e.g., because the judge was biased) — then Mendoza-Lopez, not Smith, controls.2 In such cases, a court must analyze the question of whether the initial deportation had been fundamentally unfair on its merits, even if at his initial deportation hearing the defendant sought discretionary relief such as a § 212(c) waiver.
In this case, Wilson’s contention that the Board of Immigration Appeals applied an incorrect legal interpretation arguably states a claim of fundamental unfairness, albeit one of questionable merit. However, because Wilson has failed to demonstrate any prejudice, we need not reach that claim. See ante at 510-12.
. The Smith court itself recognized the limits of its analysis in light of Mendoza-Lopez and specifically distinguished the case before it, involving only an alien's deportation, from cases such as Wilson's, involving only an alien's prosecution for illegal re-entry after deportation. The court in Smith explained:
In Mendoza-Lopez, the question before the court was whether a defendant who was being criminally prosecuted for illegally reentering after lawful deportation could collaterally attack the prior deportation order. The Court concluded that since lawful deportation was a material element of the statutory offense, due process required, in this limited situation, a pretrial review of whether the prior deportation order was lawful. [Mendoza-Lopez., 481 U.S.] at 837-38, 107 S.Ct. 2148....
Thus, while the Mendoza-Lopez Court admittedly espoused judicial review of administrative actions, the Court reasoned that review is essential when the outcome of the administrative proceeding is used as an element for criminal conviction. Id. at 839, 107 S.Ct. 2148.
Smith, 295 F.3d at 430-31 (emphasis in original).