United States v. Francisco Ochoa-Oregel

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50413
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-01116-BEN-1
FRANCISCO OCHOA-OREGEL, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, Senior District Judge, Presiding
Argued and Submitted March 7, 2018
Pasadena, California
Filed August 2, 2018
Amended September 14, 2018
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Dana L. Christensen, * Chief District Judge.
Order;
Opinion by Judge Gould
*
The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
2 UNITED STATES V. OCHOA-OROGEL
SUMMARY **
Criminal Law
The panel filed an Order amending its August 2, 2018
Opinion, and an Amended Opinion reversing a conviction
for unlawful re-entry into the United States in violation of
8 U.S.C. § 1326.
The panel held that the defendant’s 2008 and 2011
removals were fundamentally unfair, and neither can serve
as a predicate removal for purposes of § 1326.
The panel held that because the defendant was ordered
removed in absentia, but did not receive notice of either his
in absentia removal hearing or of his ability to file a motion
to reopen such proceedings, he has satisfied the exhaustion
and deprivation-of-judicial-review requirements for
bringing a collateral attack on the validity of that removal,
which was based on a prior conviction for California
domestic violence battery. The panel also held that because
circuit precedent at the time of the 2008 removal hearing
established that California battery was not a categorical
crime of violence, it was error to remove the defendant for a
crime of domestic violence under Section 237(a)(2)(E)(i) of
the Immigration and Nationality Act based on his California
battery conviction.
The panel held that the due process defects in the 2008
removal proceeding infected the defendant’s 2011 expedited
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. OCHOA-OROGEL 3
removal for presenting invalid entry documents. The panel
wrote that a person should not be stripped of the important
legal entitlements that come with lawful permanent resident
status – including protection against expedited removal –
through a legally erroneous decision that he or she had no
meaningful opportunity to contest. The panel rejected the
government’s contention that the defendant was not
prejudiced. The panel explained that if the defendant was
still a lawful permanent resident, his entry documents were
not invalid, and even if the government might have been able
to remove him on other grounds through a formal removal
proceeding, his removal on illegitimate grounds is enough to
show prejudice.
COUNSEL
Whitney Z. Bernstein (argued), Federal Defenders of San
Diego Inc., San Diego, California, for Defendant-Appellant.
Nicole Ries Fox (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
4 UNITED STATES V. OCHOA-OROGEL
ORDER
The opinion filed on August 2, 2018 and published at
898 F.3d 948 is AMENDED as follows.
The second sentence of the third paragraph states:
As Ochoa’s removal proceeding was in
absentia, he has satisfied the exhaustion and
deprivation of judicial review requirements.
That sentence is deleted and replaced with the following
language:
Ochoa was ordered removed in absentia in
2008, but did not receive notice of either his
in absentia removal hearing or of his ability
to file a motion to reopen such proceedings.
He has therefore satisfied the exhaustion and
deprivation of judicial review requirements.
The second sentence of the fifth paragraph states:
The 2008 removal order was legally
erroneous, Defendant did not have a
meaningful opportunity to contest the order,
and he was not told of available avenues for
relief because the 2008 removal order was in
absentia.
The clause “because the 2009 removal order was in
absentia” is deleted from that sentence.
UNITED STATES V. OCHOA-OROGEL 5
No further petitions for rehearing or petitions for
rehearing en banc may be filed.
IT IS SO ORDERED.
OPINION
GOULD, Circuit Judge:
Francisco Ochoa-Oregel (Defendant) unlawfully entered
the United States in 2016 and was convicted of unlawful re-
entry in violation of 8 U.S.C. § 1326. Before his 2016
conviction for unlawful re-entry, Defendant had previously
been ordered removed in 2008, based on a prior conviction
for California domestic violence battery, Cal. Penal Code
§ 243(e)(1), in an in absentia proceeding. The government
contends that Defendant lost his status as a legal permanent
resident as a result of the 2008 removal. Defendant was
again removed in 2011 in an expedited removal proceeding.
For the reasons stated below, we hold that both the 2008 and
2011 removal orders were fundamentally unfair, and that
neither can serve as a predicate removal for purposes of
§ 1326.
Defendant argues that both his 2008 and 2011 removal
orders were unlawful, and that there is no predicate offense
for a conviction under § 1326. An alien who is charged with
unlawful re-entry in violation of 8 U.S.C. § 1326 can
collaterally attack the validity of a prior removal that serves
as a predicate element for the conviction. United States v.
Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017). To succeed in
a collateral attack, a defendant must show exhaustion,
deprivation of judicial review, and that the entry of the
6 UNITED STATES V. OCHOA-OROGEL
removal order was fundamentally unfair. United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003).
A person is exempt from the exhaustion requirements
and will have adequately shown deprivation of judicial
review, if the immigration judge, in the prior removal
proceeding, does not inform the alien of the right to appeal.
Id. at 1049–50. Ochoa was ordered removed in absentia in
2008, but did not receive notice of either his in absentia
removal hearing or of his ability to file a motion to reopen
such proceedings. He has therefore satisfied the exhaustion
and deprivation of judicial review requirements. At the time
of Defendant’s 2008 hearing before the immigration judge,
our circuit precedent had established that California battery
was not a categorical crime of violence. Ortega-Mendez v.
Gonzales, 450 F.3d 1010, 1017 (9th Cir. 2006). It was error
to remove Defendant for a crime of domestic violence under
Immigration and Nationality Act § 237(a)(2)(E)(i) based on
his California battery conviction. The 2008 in absentia
removal cannot properly serve as a predicate for a conviction
for illegal re-entry.
The 2011 removal order also cannot serve as a predicate
for unlawful re-entry. An alien who had been removed
through expedited removal proceedings automatically
satisfies the requirements for exhaustion and deprivation of
judicial review. United States v. Raya-Vaca, 771 F.3d 1195,
1202 (9th Cir. 2014). In the context of reinstatements of
prior erroneous removal orders, we have held that “limiting
review to the procedural requirements for reinstatement
without regard to the soundness of the underlying removal
proceeding implicates due process concerns by effectively
foreclosing all opportunity for ‘meaningful’ review of the
underlying removal,” United States v. Arias-Ordonez,
597 F.3d 972, 980 (9th Cir. 2010).
UNITED STATES V. OCHOA-OROGEL 7
The 2011 removal at issue here was an expedited
proceeding, not a reinstatement, but the same due process
concerns apply. See Kwong Hai Chew v. Colding, 344 U.S.
590, 597–78, 597 n.6 (1953) (emphasizing that officers
violate the requirements of due process when they act
arbitrarily to remove a person who has been afforded lawful
permanent resident status); see also Osorio-Martinez v. AG
United States, 893 F.3d 153 (3d Cir. 2018) (“the lawful
permanent resident is the quintessential example of an alien
entitled to broad constitutional protections.”) (citation and
internal quotation marks omitted). The 2008 removal order
was legally erroneous, Defendant did not have a meaningful
opportunity to contest the order, and he was not told of
available avenues for relief. These due process defects in the
erroneous 2008 removal proceeding infect the 2011 removal.
A person should not be stripped of the important legal
entitlements that come with lawful permanent resident status
through a legally erroneous decision that he or she had no
meaningful opportunity to contest. Among those protections
is that lawful permanent residents cannot be removed on an
expedited basis. 8 C.F.R. § 235.3(b)(5)(ii). This means that
the 2011 expedited removal order was also fundamentally
unfair because it violated the process due to lawful
permanent residents.
The government cites footnote 3 in United States v.
Aguilera-Rios, 754 F.3d 1105 (9th Cir. 2014) to support its
conclusion that even an invalid removal order is a final order
that strips a person of the legal protections afforded to lawful
permanent residents. Aguilera-Rios did not address the issue
8 UNITED STATES V. OCHOA-OROGEL
here—whether an erroneous in absentia removal order strips
a person of those protections. 1
The government contends that even if Defendant should
have been treated as a lawful permanent resident in 2011, he
was not prejudiced because he was an aggravated felon, who
could have been removed anyway, and who would have been
denied discretionary relief, including withdrawal of his
application for admission. We reject the government’s
contention for a fundamental reason. Because Defendant
retained the protections afforded to lawful permanent
residents, he was not removable as charged in the 2011
proceedings—he was removed for presenting invalid entry
documents. But if he was still a lawful permanent resident,
then his entry documents were not invalid. And even if the
government might have been able to remove him on other
grounds through a formal removal proceeding, his removal
on illegitimate grounds is enough to show prejudice. See
United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir.
2006).
It is commonplace in the law that unconstitutional
actions by the government will have some reasonable
consequence for further proceedings that viewed in isolation
otherwise conform to procedural requirements. That is why
as a defense to a § 1326 prosecution for illegal re-entry, a
person charged with that crime is entitled to make a
collateral attack with a premise that the prior removal was
1
We emphasize that our holding here is limited to the case where an
alien is erroneously removed in absentia and did not have a meaningful
opportunity to contest the order that ostensibly stripped him or her of
lawful permanent resident status. We express no view about the effect
of an order of removal that while legally erroneous was entered after an
alien had a meaningful opportunity to contest removal.
UNITED STATES V. OCHOA-OROGEL 9
invalid because it was fundamentally unfair and offended
due process. United States v. Mendoza-Lopez, 481 U.S. 828,
838 (1987).
Other examples of reasonable consequence for
unconstitutional government action abound in the law. We
mention just a few examples: If evidence is unlawfully
seized in violation of the Fourth Amendment, then that
evidence will be excluded from a later trial. Mapp v. Ohio,
367 U.S. 643, 660 (1961). Indeed, if that evidence leads
causally to discovery of other evidence, that may also be
excluded as fruit of the poisonous tree. Wong Sun v. United
States, 371 U.S. 471, 488 (1963). If a confession is given by
a criminal suspect as a result of coercion and lack of
voluntary action in violation of the due process clause, that
evidence of confession would be suppressed. Dickerson v.
United States, 530 U.S. 428, 434–35 (2000). If evidence
favorable to an accused is withheld by a prosecutor causing
prejudice, that may be a basis to vacate a conviction. Brady
v. Maryland, 373 U.S. 83, 87 (1963). If a prosecutor submits
knowingly false testimony at a trial, that would be a basis to
vacate conviction. Napue v. Illinois, 360 U.S. 264, 269–270
(1959).
We reject the government’s claim that any order of
removal, no matter the substantive and procedural defects,
would strip lawful permanent residents of the important legal
protections that status affords them. The important legal
protections of lawful permanent resident status do not hang
on the whims of government officials, they stand on the
much more secure footing of lawful due process. At a
minimum, persons do not lose lawful permanent resident
status through legally erroneous decisions in hearings where
they are not able to defend themselves because they were not
present.
10 UNITED STATES V. OCHOA-OROGEL
Because both the 2008 and 2011 removal orders were
fundamentally unfair and there is no valid predicate offense
grounding Defendant’s § 1326 unlawful re-entry conviction,
we reverse Defendant’s conviction.
REVERSED.