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United States v. Ochoa-Oregel

United States Court of Appeals, Ninth Circuit

August 2, 2018

United States of America, Plaintiff-Appellee,
v.
Francisco Ochoa-Oregel, Defendant-Appellant.

          Argued and Submitted March 7, 2018 Pasadena, California

          Appeal 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.

          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.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Dana L. Christensen, [*] Chief District Judge.

         SUMMARY[**]

         Criminal Law

         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 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 battery conviction.

         The 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 show prejudice.

          OPINION

          GOULD, CIRCUIT JUDGE

         Francisco 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.

         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 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. 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 ...


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