process grounds where, as here, the order becomes an element of a criminal offense. United States v. Mendoza-Lopez, 481 U.S. 828, 838-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). To do so successfully, he must satisfy each of the three requirements of 8 U.S.C. § 1326(d), which provides that: [A]n alien may not challenge the validity of [a] deportation order ... unless the alien demonstrates that — (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d) (2000); see also Mendoza-Lopez, 481 U.S. at 839 & n. 17, 107 S.Ct. 2148 (<HOLDING>). III. Denial of Due Process Gonzalez-Roque
holding that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review but declining to enumerate which procedural errors are so fundamental that they may functionally deprive the alien of judicial review holding that so long as the petitioner is subject to a final order of deportation an alien is deemed to be in custody1 for purposes of the ina holding that the ins must adhere to the requirements of 8 cfr  24210 which governs the manner in which an alien must be informed of right to counsel at a deportation hearing holding that habeas review is  for any alien held in custody pursuant to an order of deportation holding alien not denied judicial review because habeas was available