What is the test for denying an alien's right to appeal against a deportation order?

Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense.

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United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

In United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992), we held that "[a] defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice." Id. at 595. A collateral attack on an underlying deportation hearing presents a mixed question of law and fact which we review de novo. Id. at 594.