and Submitted March 7, 2018 Pasadena, California
from the United States District Court for the Southern
District of California D.C. No. 3:16-cr-01116-BEN-1 Roger T.
Benitez, Senior District Judge, Presiding
Whitney Z. Bernstein (argued), Federal Defenders of San Diego
Inc., San Diego, California, for Defendant-Appellant.
Ries Fox (argued), Assistant United States Attorney; Helen H.
Hong, Chief, Appellate Section; United States Attorney's
Office, San Diego, California; for Plaintiff-Appellee.
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and Dana L. Christensen, [*] Chief District Judge.
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.
panel held that because the 2008 removal proceeding was
in absentia, the defendant 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
panel held that the due process defects in the 2008 removal
proceeding infected the defendant's 2011 expedited
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
Ochoa-Oregel (Defendant) unlawfully entered the United States
in 2016 and was convicted of unlawful reentry 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.
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 removal order was fundamentally unfair.
United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048 (9th Cir. 2003).
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. As Ochoa's removal proceeding was in
absentia, he has 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 ...