United States v. Oswaldo Mangas ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50319
Plaintiff-Appellee, D.C. No.
3:19-cr-00550-BAS-1
v.
OSWALDO MANGAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted February 7, 2022
Pasadena, California
Before: LIPEZ,** TALLMAN, and LEE, Circuit Judges.
Concurrence by Judge LEE.
Oswaldo Mangas appeals his conviction following a conditional guilty plea to
being a removed person found unlawfully in the United States, in violation of
8 U.S.C. § 1326. He argues that the district court erred in denying his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
dismiss the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse.
In 2009, Mangas was convicted of voluntary manslaughter under Cal. Penal
Code § 192(a). He was placed in administrative removal proceedings1 in 2010, on
the basis that he was not a citizen or lawful permanent resident of the United States
and that his voluntary manslaughter conviction was for a crime of violence
constituting an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien
who is convicted of an aggravated felony at any time after admission is
deportable.”); 8 U.S.C. § 1101(a)(43)(F) (designating as an aggravated felony “a
crime of violence . . . for which the term of imprisonment [is] at least one year”).
He was served with and executed a DHS waiver form, in which he checked two
boxes indicating that he did not wish to contest the allegations or seek judicial
review, and he was ordered removed the same day.
Mangas was subsequently found in the United States in January 2019 and
indicted in February 2019 for being a removed person found unlawfully in the
United States. He moved to dismiss the indictment, arguing that his 2010 removal
order was invalid and therefore could not support a conviction under § 1326. See 8
1
Administrative removal refers to a streamlined removal process, without an
appearance before an immigration judge, for individuals who are alleged not to be
citizens or lawful permanent residents and who are alleged to have aggravated felony
convictions. See 8 U.S.C. § 1228(b); 8 C.F.R. § 238.1.
2
U.S.C. § 1326(d).
We review a collateral attack on a removal order de novo. United States v.
Lopez–Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc). To succeed on a
collateral attack, a defendant must demonstrate “(1) that he exhausted all
administrative remedies available to him to appeal his removal order, (2) that the
underlying removal proceedings at which the order was issued improperly deprived
him of the opportunity for judicial review, and (3) that the entry of the order was
fundamentally unfair.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th
Cir. 2004). A removal order is fundamentally unfair if the defendant’s “due process
rights were violated by defects in the underlying deportation proceeding,” and he
experienced prejudice as a result. United States v. Aguilera-Rios, 769 F.3d 626, 630
(9th Cir. 2014) (quoting United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th
Cir. 2004)).
Mangas argues that he has satisfied the first two requirements for a collateral
attack on a removal order because his purported waiver of the right to contest the
charges against him had not been knowing, voluntary, and intelligent. In United
States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), relied on by Mangas, we
held that a judicial waiver form that failed to inform the noncitizen that “he could
refute . . . the legal conclusion underlying his removability” could not by itself
establish an informed waiver of either administrative or judicial review. Id. at 1206.
3
The government concedes that the waiver form signed by Mangas was identical to
the form at issue in Valdivia-Flores, and that, accordingly, Mangas has demonstrated
that he exhausted his administrative remedies and was deprived of the opportunity
for judicial review. Mangas has therefore met the first two requirements for a
collateral attack on an order of removal, and, pursuant to Valdivia-Flores, the district
court erred in holding otherwise.
With respect to the predicate conviction, the government has conceded that,
pursuant to Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1306-07 (9th Cir. 2015),
voluntary manslaughter under Cal. Penal Code § 192(a) is not a categorical crime of
violence under the definition set forth in 18 U.S.C. § 16(b) because it may be
committed with reckless intent. Thus, as the district court properly held, Mangas’
conviction under Cal. Penal Code § 192(a) cannot support the asserted basis of the
removal order. See Quijada-Aguilar, 799 F.3d at 1306-07.
The prejudice inquiry is also governed by Valdivia-Flores. There we held, on
analogous facts, that the defendant had been prejudiced because his predicate
conviction had been misclassified in his administrative removal proceedings and
could not support the “asserted basis” for his underlying removal order. 876 F.3d at
1210. That reasoning controls here. We reached a similar conclusion where the
government misclassified a lawful permanent resident's underlying conviction. See
United States v. Ochoa-Oregel, 904 F.3d 682, 685-86 (9th Cir. 2018) (“[E]ven if the
4
government might have been able to remove [the defendant] on other grounds
through a formal removal proceeding, [the defendant’s] removal on illegitimate
grounds is enough to show prejudice.”).
The sole basis of Mangas’ 2010 removal order was the purported aggravated
felony conviction. The district court erred in requiring Mangas to show prejudice
by demonstrating a plausible basis for relief from removal on a ground other than
the one underlying his 2010 removal order. Accordingly, Mangas should have
prevailed in his collateral attack on the 2010 removal order.2
REVERSED AND REMANDED.
2
The government has requested that, if we find prejudice, we remand for an
evidentiary hearing regarding the circumstances of Mangas’ purported waiver of
judicial review in 2010. That request is denied. The government bore the burden of
proving a valid waiver by clear and convincing evidence. See United States v.
Ramos, 623 F.3d 672, 680-81 (9th Cir. 2010). It failed to make that showing when
it had an opportunity to do so.
5
FILED
MAR 28 2022
19-50319, United States v. Mangas MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LEE, Circuit Judge, with whom TALLMAN, Circuit Judge, joins, specially
concurring:
Although our circuit’s case law compels the outcome here, I write separately
to highlight our apparently inadvertent shift from an individualized prejudice inquiry
to a presumption of prejudice for collateral attacks under 8 U.S.C. § 1326(d).
To show fundamental unfairness under § 1326(d), a defendant “must
demonstrate plausible grounds for relief from deportation.” United States v. Garcia-
Martinez, 228 F.3d 956, 963 (9th Cir. 2000). We presume prejudice in some cases
when—but for the government’s misclassification of an underlying felony—the
defendant would not otherwise be removable. For example, lawful permanent
residents suffer prejudice because it “deprive[s] [them] of the important protections
of legal permanent resident status.” United States v. Martinez-Hernandez, 932 F.3d
1198, 1205 (9th Cir. 2019).
In United States v. Valdivia-Flores, we appear to have inadvertently extended
this presumption of prejudice to non-permanent residents who have no plausible
basis for remaining here. 876 F.3d 1201 (9th Cir. 2017). In that case, Valdivia-
Flores repeatedly entered the United States without inspection after being deported.
Id. at 1203–04. On his fourth attempt to illegally reenter the United States, he was
charged with one count of attempted reentry of a removed alien in violation of 8
U.S.C. § 1326. Id. at 1204. He then collaterally attacked his removal order. Id. at
1
1205. Much of Valdivia-Flores focused on whether a due process violation occurred
under § 1326(d)(2) and whether his state drug-trafficking conviction qualified as an
aggravated felony. After resolving those two issues in favor of Valdivia-Flores, the
opinion then concluded that he was “prejudiced from his inability to seek judicial
review for that removal.” Id. at 1210. Perhaps because prejudice was not fully
briefed and teed up before the court, the opinion did not offer any analysis other than
that single statement presuming prejudice.
We later clarified that “the central issue” in determining “fundamental
unfairness” under § 1326(d)(3) is “whether a defendant was removed when he
should not have been.” Martinez-Hernandez, 932 F.3d at 1204 (internal quotation
marks omitted). There, the defendants collaterally attacked their removal orders,
arguing that their convictions no longer qualified as a crime of violence. Id. at 1202.1
We distinguished Valdivia-Flores: the defendants were not removed on “illegitimate
grounds” because “the same convictions require removal under a different section
of the same statute previously invoked.” Id. at 1205 & n.2 (emphasis added).
1
Relying on our decision in United States v. Ochoa-Oregel, (9th Cir. 2018), the
defendants in Martinez-Hernandez argued that once error occurs in the original
removal order, the government cannot later argue that a defendant could have been
removed on other grounds. Id. at 1204. The court explained, however, that Ochoa-
Oregel was “fundamentally different” because the defendant in Ochoa-Oregel was
a legal permanent resident. Id. at 1204–05.
2
After Valdivia-Flores and Martinez-Hernandez, we are apparently left with
the rule that if the government misclassifies the underlying felony, the removal order
is presumed fundamentally unfair under § 1326(d). That presumption can be
rebutted if the government (i) can show that the conviction qualifies for removability
under a different section of the same statute (i.e., the INA), or (ii) charged the alien
with another valid ground for removal.
Here, our inquiry ends with holding that Mangas’s conviction no longer
qualifies as a crime of violence. Though Mangas has repeatedly entered the country
without inspection, DHS did not charge him with entering the United States without
inspection. Nor has the government shown that Mangas’s voluntary manslaughter
conviction qualifies for removability under a different section of the INA.
The government argues that Mangas is not prejudiced by the defects in his
removal order because he would have been removed anyway. That is true: Mangas
never had any lawful basis for entering the country, repeatedly entered unlawfully
after being removed, and even today has no plausible basis for remaining here. But
we are still required to hold that Mangas’s removal order was fundamentally unfair
under our precedent of presumed prejudice. I thus believe we need to revisit our
seemingly accidental precedent.
3