1 Alison K. Guernsey FEDERAL DEFENDERS OF EASTERN ...fdewi.org/Docs/DISMISS MEMO.pdf · Alison K. Guernsey FEDERAL DEFENDERS OF EASTERN WASHINGTON AND IDAHO ... Based upon a review

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Alison K. GuernseyFEDERAL DEFENDERS OF EASTERN WASHINGTON AND IDAHO306 East Chestnut AvenueYakima, Washington 98901(509) 248-8920

Attorneys for DefendantMARCO ANTONIO AGUIRRE-DIAZ

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WASHINGTON

(HONORABLE EDWARD F. SHEA)

UNITED STATES OF AMERICA, ))

Plaintiff, ) CR-12-6002-EFS)

vs. ) MEMORANDUM IN SUPPORT ) OF MOTION TO DISMISS

MARCO ANTONIO AGUIRRE-DIAZ, ) INDICTMENT))

Defendant. ))

TO: MICHAEL C. ORMSBY, UNITED STATES ATTORNEYALISON L. GREGOIRE, ASSISTANT UNITED STATES ATTORNEY

The defendant, MARCO ANTONIO AGUIRRE-DIAZ, hereby submits the

following memorandum in support of his motion to dismiss the indictment.

I. BACKGROUND

On August 6, 2009, the Immigration and Naturalization Service issued

to Mr. Marco Antonio Aguirre-Diaz a Notice to Appear (“NTA”), alleging that he

was subject to deportation because he was not a citizen of the United States and

had entered the country without inspection in violation of 8 U.S.C. §

1182(a)(6)(A)(i). Exhibit A (Notice to Appear). The NTA further alleged that

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS INDICTMENT 1

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Mr. Aguirre-Diaz had been convicted of possession of cocaine and was subject

to removal as an alien who had been convicted of a controlled-substance offense.

Id. Mr. Aguirre-Diaz appeared before an Immigration Judge (“IJ”) in response

to the NTA on September 1, 2009. See Exhibit B (Audio Recording). The

proceedings against Mr. Aguirre-Diaz were conducted in a group format, with

a total of seven alien–respondents present. Mr. Aguirre-Diaz was the fifth

individual in the group.

The IJ began the hearing by explaining the purpose of the proceedings to

the entire group. The IJ stated that her job was to consider the Government’s

evidence and allegations and decide whether a particular individual was

removable from the United States or whether the person was eligible for relief

from removal. Id. at Track 1 at 1:15–2:33. The IJ never explained the various

forms of relief from removal, however. Still speaking to the group, the IJ

proceeded to ascertain whether each alien had received a copy of the NTA and

the legal aid forms. The IJ also advised the group of aliens about their rights,

including the right to counsel, various evidentiary and procedural rights, and

the right to appeal Id. at 2:33–5:01; Track 2 at 00:00–00:54.

After placing the group under oath, the IJ confirmed that no one in the

group was a U.S. citizen and began to address each alien individually. Id. at

Track 2 at 2:00. To the first alien, the IJ clarified whether the alien desired



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more time to find an attorney, read the allegations in the NTA, and asked the

alien if the allegations were true. The IJ then asked the alien if he understood

that he was subject to removal based on the allegations in the NTA. After

asking whether the alien had any petitions pending on his behalf, whether he

was married, whether his parents or grandparents were U.S. citizens, and

whether he feared being returned to Mexico, the IJ inquired whether the alien

had “the funds to pay for [his] return ticket to Guatemala?” Id. at Track 3 at

00:33–00:37. When the alien responded “no,” the IJ determined that he was

ineligible for any relief from removal, including voluntary departure. The IJ

ordered the individual removed to Guatemala.

When the IJ reached Mr. Aguirre-Diaz on the docket, she proceeded in the

same manner as with the first alien. Id. at Track 5 at 2:24. After reviewing the

allegations in the NTA, the IJ ultimately found Mr. Aguirre-Diaz removable on

the grounds set forth therein. Id. at 4:47–4:57. Following that conclusion, the

IJ stated:

Based upon a review of the facts in your case, I do not find that youare eligible for any forms of relief from removal. I deny voluntarydeparture as a matter of discretion given your criminal history andI hereby order your removal to Mexico.

Id. at Track 6 at 00:35–00:58. Mr. Aguirre-Diaz waived his right to appeal, and

the IJ issued an order of removal. According to the Government’s discovery, Mr.



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Aguirre-Diaz was physically removed from the country pursuant to this 2009

order the next day, September 2, 2009.

Sometime thereafter, Mr. Aguirre-Diaz reentered the United States and

was apprehended. Instead of placing Mr. Aguirre-Diaz into removal

proceedings, the immigration service merely reinstated his 2009 removal order

pursuant to 8 U.S.C. § 1231(a)(5). Ultimately, Mr. Aguirre-Diaz was removed

from the United States pursuant to this reinstated removal order on two

occasions: November 25, 2009, and March 31, 2010.

On January 18, 2012, the Government returned an indictment against Mr.

Aguirre-Diaz alleging that he was an alien in the United States following

deportation in violation of 8 U.S.C. § 1326. The indictment relies on the three

removals listed above. See ECF No. 14 at 1 (Indictment).

II. ANALYSIS

“In a criminal prosecution under 8 U.S.C. § 1326, the Due Process Clause

of the Fifth Amendment requires a meaningful opportunity for judicial review

of the underlying deportation.” United States v. Zarate-Martinez, 133 F.3d

1194, 1197 (9th Cir. 1998), overruled on other grounds by United States v.

Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). Pursuant to §

1326(d), Mr. Aguirre-Diaz may collaterally attack his underlying removal orders

as violative of due process and preclude the Government from relying on those



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removals in his criminal prosecution.

In order to prevail, Mr. Aguirre-Diaz must demonstrate (1) the

“exhaustion of ‘any administrative remedies that may have been available to

seek relief against the order[s]’”; (2) “the deportation proceedings at which the

order[s] [were] issued improperly deprived the alien of the opportunity for

judicial review”; and (3) “the entry of the order[s] was fundamentally unfair.”

United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010) (internal quotation

marks omitted). “An underlying removal order is fundamentally unfair if an

alien’s ‘due process rights were violated by defects in the underlying deportation

proceeding,’ and if ‘he suffered prejudice as a result of the defects.’” Id. (quoting

United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)); see United

States v. Mendoza-Lopez, 481 U.S. 828, 837–40 (1987) (holding that in order for

§ 1326 to withstand constitutional scrutiny, any deportation proceeding relied

upon by the government must comport with the requirements of due process).

A. Mr. Aguirre-Diaz’s 2009 Removal Violated Due Process.

Mr. Aguirre-Diaz respectfully requests that the Court dismiss the

indictment against him because the 2009 deportation upon which the instant

prosecution is premised violated his due-process rights. Specifically, at the time

of his deportation hearing, Mr. Aguirre-Diaz was eligible for voluntary

departure, but the IJ never informed Mr. Aguirre-Diaz of his eligibility for



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relief. Mr. Aguirre-Diaz’s hearing was also flawed because the IJ failed to

provide him with “the opportunity to develop the issue” of relief from removal.

United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). For the

following reasons, and as a result of these flaws, Mr. Aguirre-Diaz respectfully

requests that the Court dismiss the indictment against him.

1. Legal Authority Governing Immigration Judges’ Obligations

It is plain under Ninth Circuit precedent that an IJ has a duty to inform

an alien of his or her eligibility for relief from removal and to allow the alien to

develop the record in support of such relief. This requirement is mandatory,

and an IJ’s failure to “meaningfully advise[]” an alien of eligibility for relief

renders a deportation proceeding constitutionally infirm. United States v.

Melendez-Castro, —F.3d—, 2012 WL 130348, at *2 (9th Cir. Jan. 18, 2012); see

also, e.g., United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004);

United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004); United States

v. Arrieta, 224 F.3d 1076 (9th Cir. 2000). It is the Government’s burden to

prove that an alien was sufficiently advised of his rights. This is not a trivial

burden. The IJ has a significant responsibility to “help an alien explore legal

avenues of relief that might not be apparent to him.” Moran-Enriquez v. INS,

884 F.2d 420, 423 (9th Cir. 1989).

One such form of relief that an IJ must discuss is voluntary departure.



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Voluntary departure is a discretionary form of relief that permits an individual

to “avoid[] the stigma of formal removal by allowing an otherwise removable

alien to depart the United States at his or her own personal expense and return

to his or her home country.” U.S. Dep’t Justice, Forms of Relief from Removal,

Aug. 3, 2004, available at http://www.justice.gov/eoir/press/04/ReliefFrom

Removal.htm. To be eligible for pre-hearing voluntary departure, the statutory

requirements are minimal. An individual must not have an aggravated-felony

conviction, as defined in 8 U.S.C. § 1101(43), or be removable under the

statute’s terrorism provisions. See 8 U.S.C. § 1229c(a)(1).

Although the decision whether to grant voluntary departure is left to the

discretion of the IJ, “such discretion does not strip the inquiry of all guideposts.”

Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir. 1994). “One such guidepost

is the requirement that the agency must weight both favorable and unfavorable

factors” prior to making a decision as to whether relief is appropriate. Id.

(internal quotation marks and citations omitted); see also Melendez-Castro, 2012

WL 130348 at *2 (citing and relying on Campos-Granillo in the § 1326 context).

“Mere conclusory statements by the IJ are insufficient” to satisfy this

mandatory weighing requirement, and the record must reflect that the

“petitioner’s claims have been heard, considered, and decided.” Campos-

Granillo, 12 F.3d at 852 (citing Villanueva-Franco v. INS, 802 F.2d 327, 330



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(9th Cir. 1986).

2. The IJ Never Specifically Informed Mr. Aguirre-Diaz of HisEligibility for Voluntary Departure.

The first flaw in Mr. Aguirre-Diaz’s deportation hearing is the IJ’s failure

to inform Mr. Aguirre-Diaz of his eligibility for relief from removal. Reviewing

the recording of the hearing, it is likely that the IJ identified Mr. Aguirre-Diaz

as an individual who was facially eligible for voluntary departure. Despite this

fact, however, the IJ never specifically informed Mr. Aguirre-Diaz that he was

statutorily eligible for such relief. The IJ simply stated that she was denying

voluntary departure.

The recent Ninth Circuit case of United States v. Gonzalez-Melchor, No.

10–50111, 2011 WL 2670080 (9th Cir. July 8, 2011) (unpublished),

demonstrates the difference between advising an individual of his or her

eligibility for relief—as required by due process—and merely informing an

individual that relief will be denied. It is a distinction that makes a difference.

In Gonzalez-Melchor, an illegal-reentry defendant lodged a collateral attack on

an underlying deportation, arguing that he was not informed of his eligibility

for voluntary departure and was not allowed to develop the record in favor of

such relief. The Ninth Circuit held in favor of the defendant, concluding that

the IJ’s statement that “‘I’m not considering you for [voluntary departure]



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because I . . . would not give it to you even if you asked for it,” was insufficient

to advise him of his eligibility for voluntary departure. Id. at *1. Specifically,

the Ninth Circuit concluded that the IJ’s statement “clarified that he would not

consider [the defendant] for voluntary departure without conveying to him that

he was apparently eligible for such relief.” Id. As a result, the panel held that

“[t]he IJ’s failure to . . . inform” the defendant of his eligibility for relief

“violated his due process rights.” Id. (citing Campos–Granillo, 12 F.3d at 85).

Similarly, in this case, the IJ’s statements to Mr. Aguirre-Diaz certainly

made clear that he would not receive voluntary departure but they never

conveyed to him that he was eligible for such relief. See also United States v.

Delgado-Yong, No. CR–11–6003–RMP, 2011 WL 3626782, at *2, *4 (E.D. Wash.

Aug. 17, 2011) (dismissing a § 1326 indictment for failure to advise of eligibility

of relief when the IJ stated “because of your criminal conviction for possession

of a controlled substance, the court is not inclined to grant voluntary departure

in your case,” but failed to state specifically that the defendant was eligible). As

a result, the IJ’s advisal failed to comply with due process.

3. The IJ Never Allowed Mr. Aguirre-Diaz to Develop anApplication for Relief from Removal.

Even assuming that the IJ’s comments were sufficient to convey to Mr.

Aguirre-Diaz in a meaningful manner that he was eligible for voluntary



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departure, missing from the hearing is any acknowledgment—not to mention

weighing—of the equities that favored a grant of voluntary departure. Instead

of thoroughly evaluating the specifics of Mr. Aguirre-Diaz’s case before ruling

on whether to grant relief, the IJ merely concluded that because of conviction,

the IJ was not granting voluntary departure. But based on Campos-Granillo’s

requirement that an IJ do more than make conclusory statements when

evaluating voluntary departure, it is clear that the IJ’s conduct did not satisfy

its due-process obligation.

The Ninth Circuit’s decision in United States v. Frias-Flores, No. 09-50658,

2011 WL 1229770 (9th Cir. Apr. 4, 2011) (unpublished), illustrates precisely

how an IJ’s failure to comply with the mandatory balancing of the equities when

evaluating voluntary departure can impact a subsequent prosecution under 8

U.S.C. § 1326, and it presents facts analogous to those in the instant case. In

Frias-Flores, the Ninth Circuit found a due-process violation in an immigration

proceeding where the IJ “did not conduct the necessary evaluation of the

favorable and unfavorable factors relevant to a decision regarding

pre-conclusion voluntary departure.” Id. at *1. Instead, the IJ simply denied

voluntary departure on the basis of the alien’s prior drug-possession convictions.

The similarity between the IJ’s statements in the instant case and the IJ’s

statements in Frias-Flores is striking. In Frias-Flores, the following exchange



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ensued:

IJ: . . . I will sustain the charge that you could be removed for the drugrelated conviction. I’ll admit exhibit 2, which is a copy of thejudgment of the California court. . . . And sir, are you afraid to goback to Mexico?

Mr. Frias: No.

IJ: Well, sir, I’ll deny voluntary departure because of your convictionsand make a decision that you be removed and deported to Mexico.Are you going to appeal to a higher court?

Mr. Frias: No.

Brief of Defendant–Appellant at 6–7, United States v. Frias-Flores, No.

09-50658 (9th Cir. Aug. 6, 2010) (emphasis added) (citation omitted).

In other words, in both Frias-Flores and the instant case, the IJ’s only

consideration of record was the alien’s negative equities. But the Ninth Circuit

has made clear that a determination of whether to grant voluntary departure

that is based “solely on factors that were unfavorable” to the alien without any

review or consideration of favorable factors is not in accordance with the law,

see Campos-Granillo, 12 F.3d at 852, and renders the hearing defective. This

defect is another basis upon which to dismiss the instant indictment.

B. Mr. Aguirre-Diaz Was Prejudiced by the Due-Process ViolationsBecause He Had a Plausible Basis for Relief from Removal.

Given that Mr. Aguirre-Diaz’s immigration proceeding was procedurally

defective, the Court must next analyze whether he was prejudiced by the



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constitutional violation. See Ubaldo-Figueroa, 364 F.3d at 1048; United States

v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992) (en banc). The prejudice

requirement is not overly burdensome. To obtain relief, the defendant need

demonstrate only that he or she had a “plausible” basis for relief from

deportation. Arrieta, 224 F.3d at 1079. In the present case, so long as there

was a possibility that the IJ would have granted Mr. Aguirre-Diaz voluntary

departure absent the procedural defect, the prejudice standard is met. See id.

In Mr. Aguirre-Diaz’s case, had the IJ considered his favorable equities,

it is plausible that he would have reached the conclusion that Mr. Aguirre-

Diaz’s positive factors outweighed his limited criminal history. At the time of

his deportation, Mr. Aguirre-Diaz’s criminal history was of a “moderate nature.”

Frias-Flores, 2011 WL 1229770, at *2. Again, he had no aggravated felony

convictions, just a simple possession. Additionally, there were numerous

countervailing equities in Mr. Aguirre-Diaz’s favor that the IJ never even

attempted to elicit. See Melendez-Castro, 2012 WL 130348, at *2. For example,

at the time of his deportation, he had resided continuously in the United States

for almost five years and was employed continually during his presence here.

Exhibit C (Declaration).

Moreover, Mr. Aguirre-Diaz had family living in the United States with

authorization, including a U.S. citizen daughter. Id. One of the benefits of



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voluntary departure is that it will not bar an alien from petitioning for legal

status in the future, and the fact that Mr. Aguirre-Diaz had a U.S. citizen

daughter and was responsible for caring for four additional U.S. citizen children

certainly weighs heavily in favor of a grant of voluntary departure. But

whether Mr. Aguirre-Diaz had children in the United States was a question that

the IJ never even asked.

Although the Ninth Circuit has never defined “plausibility,” in United

States v. Alcazar-Bustos, 382 F. App’x 568, 570 (9th Cir. 2010) (unpublished),

the panel suggested that a “comparison with similar cases” is helpful in

determining whether the prejudice showing has been met. Conducting such a

comparison, it is clear that the facts of Mr. Aguirre-Diaz’s case counsel in favor

of a conclusion that he was prejudiced by the defects in his hearing. For

example, in In Re Gonzales-Figeroa, A29013696, 2006 WL 729784 (BIA 2006),

the Board of Immigration Appeals (“BIA”) affirmed a grant of post-hearing

voluntary departure (which requires a showing of good moral character) for an

alcoholic with four assault convictions, one conviction for resisting arrest, and

numerous other arrests. The positive equities in that case were a legal

permanent resident mother and a citizen sister and citizen nieces.

Likewise, in In Re Pineda-Castellanos, A77212443, 2005 WL 3833024 (BIA

2005), the BIA affirmed a grant of post-hearing voluntary departure when the



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individual had “6 criminal convictions for illegal entry, battery, drunkenness,

threatening, a second battery, and driving under the influence,” and the positive

equities were citizen children and a questionably authentic marriage to a U.S.

citizen. See also United States v. Vasallo-Martinez, 360 F. App’x 731, 732–33

(9th Cir. 2009) (unpublished); United States v. Basulto-Pulido, 219 F. App’x 717,

719 & n. 1 (9th Cir. 2007) (unpublished); In re Joseph Tan Villalongja Mante,

2007 WL 1676929 (BIA 2007); In re Guillermo Ramirez, 2005 WL 698425 (BIA

2005); In re Agustin Hernandez-Barreto, 2004 WL 2943517 (BIA 2004); In re

Luis Reyes-Jimenez, 2004 WL 2418597 (BIA 2004).

In conclusion, given Mr. Aguirre-Diaz’s moderate criminal history and his

countervailing positive equities, had the IJ conducted a proper hearing, it is

plausible that he would have granted Mr. Aguirre-Diaz voluntary departure.

The prejudice standard is met. 1

//

//

The Ninth Circuit has held on numerous occasions “that § 1326(d)’s1

requirements of exhaustion and deprivation of judicial review are satisfied when

the government . . . fails to inform an alien of the eligibility of relief.” See, e.g.,

Arias-Ordonez, 597 F.3d at 977; see also Pallares-Galan, 359 F.3d at 1098;

Ortiz-Lopez, 385 F.3d at 1204 n. 2.



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C. The Reinstatements of the 2009 Order Fail to Cure the Due-Process Violation, and the Other Deportations Are Also Invalid.

The indictment in the instant case also lists Mr. Aguirre-Diaz’s November

2009 and March 2010 removals. These deportations were simply

reinstatements of the September 2009 order, and they carry the same taint.

The Ninth Circuit has held, where the predicate “removal was statutorily and

constitutionally flawed . . . the reinstatements stand on no stronger legal basis.”

United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir. 2010). Because the

first 2009 order was obtained in violation of due process, the subsequent orders

hold no legal weight. “[T]he government has built a house of cards that falls

once the first is removed.” Id.

III. CONCLUSION

In conclusion, Mr. Aguirre-Diaz’s September 2009 removal from the

United States violated due process because the IJ failed to advise Mr. Aguirre-

Diaz of his eligibility for relief from removal and allow him to develop his

application for relief. Mr. Aguirre-Diaz was prejudiced by the defects because

his positive equities outweighed his limited criminal history. Had the IJ

conducted a proper hearing, relief was plausible. For these reasons, Mr.

Aguirre-Diaz respectfully requests that the Court dismiss the indictment

against him.



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Dated: February 21, 2012.

Respectfully submitted,

s/ Alison K. GuernseyAlison K. Guernsey, NY 4667366Attorney for MARCO A. AGUIRRE-DIAZ

Federal Defenders of EasternWashington and Idaho306 East Chestnut AvenueYakima, Washington 98901(509) 248-8920(509) 248-9118 [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on February 21, 2012, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF System which will send

notification of such filing to the following: ALISON L. GREGOIRE, Assistant

United States Attorney.

s/ Alison K. Guernsey



US v. AGUIRRE-DIAZ #CR-12-6002-EFS EXHIBIT A

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US v. AGUIRRE-DIAZ #CR-12-6002-EFS EXHIBIT B

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US v. AGUIRRE-DIAZ #CR-12-6002-EFS EXHIBIT C

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8 USC § 1182 - INADMISSIBLE ALIENS (6) Illegal entrants and immigration violators (A) Aliens present without admission or parole

(i) In generalAn alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

Case 2:12-cr-06002-EFS Document 14 Filed 01/18/12

Case 2:12-cr-06002-EFS Document 14 Filed 01/18/12

This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The Honorable Richard Seeborg, United States District Judge for the **

Northern District of California, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALONZO QUINTANILLA-GONZALEZ,

Defendant-Appellant.

No. 10-50289

D.C. No. 3:09-cr-02686-BEN-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted August 30, 2011

Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, District

Judge. **

Alonzo Quintanilla-Gonzalez (“Appellant”) appeals his conviction, after

entry of a conditional guilty plea, under 8 U.S.C. § 1326(a) and (b) for attempted

FILEDSEP 16 2011

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

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entry after deportation. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Appellant claims that his deportation orders are invalid and therefore may

not serve as the basis for prosecution under 8 U.S.C. § 1326. In order to challenge

the validity of a deportation order, Appellant must demonstrate that: (1) he

exhausted available administrative remedies; (2) he was improperly deprived of the

opportunity for judicial review; and (3) “the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d); see also United States v. Ramos, 623 F.3d 672, 680

(9th Cir. 2010). A removal order is fundamentally unfair if the defendant’s due

process rights were violated and he suffered prejudice as a result of the flawed

proceeding. See Ramos, 623 F.3d at 680 (quoting United States v. Pallares-Galan,

359 F.3d 1088, 1095 (9th Cir. 2004)).

Appellant was first deported in 2001, after the immigration judge (“IJ”)

erroneously concluded that his battery conviction rendered him an aggravated

felon ineligible for cancellation of removal. In this appeal, the government does

not contest that the 2001 deportation order was invalid. In 2006, Appellant was

deported three separate times pursuant to an administrative removal order and two

different expedited removal orders. See 8 U.S.C. § 1228(b) (setting forth

proceedings that result in an administrative removal); 8 U.S.C. § 1225(b)

3

(providing for procedures referred to as expedited removal). These subsequent

removals provide valid bases for his illegal reentry conviction. See United States

v. Garcia-Martinez, 228 F.3d 956, 964 (9th Cir. 2000) (affirming a section 1326

conviction based on an administrative removal order); United States v.

Barajas-Alvarado, No. 10-50134, 2011 U.S. App. LEXIS 17652, at *1–2 (9th Cir.

Aug. 24, 2011) (affirming a section 1326 conviction based on expedited removal

orders).

Appellant challenges his 2006 administrative and expedited removal orders

on the grounds that those procedures do not apply to legal permanent residents.

Appellant lost his legal permanent resident status as a result of the invalid 2001

removal. Thus, in considering the validity of his subsequent removals, Appellant

contends that the Court should deem him a permanent resident who was not

properly subject to administrative or expedited removal orders.

Appellant, however, does not demonstrate that he suffered any prejudice

from the allegedly improper utilization of the administrative or expedited removal

proceedings. In September 2003, Appellant was convicted of inflicting corporal

injury on a spouse or cohabitant under California Penal Code § 273.5(e). He was

initially sentenced to six months in jail and thirty-six months of probation. After

his probation was revoked, he was sentenced to twenty-four months in prison. A

4

violation of section 273.5 represents a categorical crime of violence. See United

States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 2010).

At oral argument, Appellant for the first time asserted that a violation of

California Penal Code § 273.5 is a “wobbler” offense, in that the sentencing court

has discretion to punish a violation as either a misdemeanor or a felony. As

Appellant was initially sentenced to six months in jail and thirty-six months

probation, he suggests that the offense must be considered a misdemeanor.

Appellant, however, has not established that the six-month jail term was imposed

pursuant to entry of judgment. Rather, the trial court may have suspended

imposition or stayed execution of Appellant’s sentence pending successful

completion of probation. See United States v. Salazar-Mojica, 634 F.3d 1070,

1073 n.4 (9th Cir. 2011) (quoting United States v. Bridgeforth, 441 F.3d 864, 871

(9th Cir. 2006) (explaining that an initial sentence of probation with a jail term of

forty-three days as a condition of probation does not, by itself, represent a

judgment punishing an offense as a misdemeanor). In any case, Appellant has

waived this argument by failing to raise it in his opening brief. See Kumar v.

Gonzales, 444 F.3d 1043, 1056 (9th Cir. 2006) (considering argument not raised in

appellant’s opening brief to be waived).

5

Accordingly, at the time of his administrative and expedited removal

proceedings in 2006, Appellant was an aggravated felon. Even if he were subject

to consideration as a legal permanent resident, he would have been ineligible for

discretionary relief. See 8 U.S.C. § 1229b(a) (providing for cancellation of

removal of certain permanent residents who have not been convicted of an

aggravated felony). Therefore, even if, as Appellant contends, use of these

procedures were considered improper, he suffered no prejudice.

AFFIRMED.

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-10259Plaintiff-Appellant,D.C. No.v. 3:07-cr-00738-MMC

NOE ARIAS-ORDONEZ, OPINIONDefendant-Appellee. Appeal from the United States District Court

for the Northern District of CaliforniaMaxine M. Chesney, District Judge, Presiding

Argued and SubmittedOctober 9, 2009—San Francisco, California

Filed March 8, 2010

Before: Mary M. Schroeder and Marsha S. Berzon,Circuit Judges, and Milton I. Shadur,* District Judge.

Opinion by Judge Schroeder

*The Honorable Milton I. Shadur, Senior United States District Judgefor the Northern District of Illinois, sitting by designation.

3615

COUNSEL

Owen P. Martikan, San Francisco, California, for the plaintiff-appellant.

Elizabeth M. Falk, San Francisco, California, for thedefendant-appellee.

OPINION

SCHROEDER, Circuit Judge:

This government appeal arises in the context of an appar-ently routine prosecution for reentry after removal under 8U.S.C. § 1326 that turned out to be anything but routine. Thealien did everything he was instructed to do to effectuate hisremoval, after it had been ordered in absentia. He even senthis mother to report for removal in his place while heobtained proper identification. But the order instructing himto report for removal misinformed him that he had no admin-istrative remedies and he was never told that he had a right toreopen to seek voluntary departure. The government does notcontest the district court’s ruling that the flaws in the underly-ing removal prejudiced the alien. The government argues,however, that the subsequent summary reinstatements of theflawed removal can support the criminal indictment for illegalreentry. We think not and affirm the district court’s dismissalof the indictment.

BACKGROUND

Noe Arias-Ordonez is a citizen of Mexico who has lived inthis country since the age of ten and now has a United States

3618 UNITED STATES v. ARIAS-ORDONEZ

citizen child. He was convicted in 2002 of misdemeanor pos-session of a controlled substance and placed in removal pro-ceedings. His mother posted a $5000 bond to secure hisrelease and informed ICE officials of his address. Just beforehis release from detention, Arias-Ordonez received a notice toappear at a removal hearing, but the notice did not state thedate it would take place. That information was not sent foranother week, when the clerk at the immigration court sentthe notice by regular mail. The government does not disputethat Arias-Ordonez never received it. He was removed inabsentia on June 6, 2003.

ICE sent the subsequent order to report for removal by cer-tified mail the following October, and Arias-Ordonez didreceive it. The order to report said:

As you know, following a hearing in your case youwere found removable and the hearing officer hasentered an order of removal. A review of your fileindicates that there is no administrative relief whichmay be extended to you, and it is now incumbent onthis Service to enforce your departure from theUnited States.

The statement that there were no administrative remediesavailable was not a true statement, because an alien orderedremoved in absentia has a statutory right to seek to reopen hiscase and petition for relief. See 8 U.S.C. § 1229a(b)(5)(C)(ii);8 C.F.R. § 1003.23(b)(4)(ii).

When Arias-Ordonez nevertheless reported for removal tocomply with the order, he was originally turned away for lackof proper identification. He complied with the instructions forremoval so assiduously that he sent his mother to tell theauthorities he was coming, while he retrieved his ID. Theauthorities eventually told him to return the next day, andwhen he did, he was promptly removed.

3619UNITED STATES v. ARIAS-ORDONEZ

Because Arias-Ordonez was no longer in this country, heno longer had any legally recognized right to petition forreopening. See 8 C.F.R. § 1003.2(d) (“A motion to reopen ora motion to reconsider shall not be made by or on behalf ofa person who is the subject of exclusion, deportation, orremoval proceedings subsequent to his or her departure fromthe United States.”); Singh v. Gonzales, 412 F.3d 1117, 1120-21 (9th Cir. 2009) (“The Board interpreted [8 C.F.R.§ 1003.2(d)] to mean that any time a petitioner files a motionto reopen after departing the country, the motion is barred.”).

After his original removal, Arias-Ordonez repeatedlyreturned to this country. Each time, the government in sum-mary proceedings reinstated the original removal order andsent him back to Mexico, for a total of seven reinstatements.

Finally, in 2007, the United States indicted Arias-Ordonezpursuant to 8 U.S.C. § 1326. Section 1326(a) authorizesimprisonment and fines for any alien who has been removedor who departs while an order of removal is outstanding andwho thereafter enters or attempts to enter the United States.8 U.S.C. § 1326(a). An immigrant who is charged with illegalreentry may, however, under limited circumstances, collater-ally attack a removal order the government introduces to meetits burden of proof. 8 U.S.C. § 1326(d). The statute limitssuch collateral attacks to those situations in which the alienhas exhausted his administrative remedies, the removal orderhas improperly deprived the alien of the opportunity for judi-cial review, and the entry of the removal order was “funda-mentally unfair.” Id.

Relying on § 1326(d), Arias-Ordonez moved for dismissalof the indictment on the grounds that his original removalorder was infirm because he had been removed in absentiawithout having received notice of the hearing, and alsobecause the order to report for removal was affirmatively mis-leading. The district court rejected his first contention, that hisfailure to receive the notice of the time and place of the hear-


ing invalidated the removal proceeding. We do not need toaddress this issue. The court agreed with Arias-Ordonez, how-ever, that the order to report was affirmatively misleadingbecause it told him that he had no administrative remedieswhen in fact he did. The court ruled that the misinformationinvalidated the original removal.

The government then attempted to support the illegal reen-try charge by relying on the summary reinstatements of theoriginal order, but the district court held that the governmentcould not use summary reinstatements of an invalid removalto sustain a prosecution for illegal reentry. In ordering theindictment dismissed, the court explained that when a dueprocess violation has occurred, “you can’t take a reinstate-ment and launder the original deportation” because the rein-statement “bears the same taint as the original deportation.”The government now appeals pursuant to 18 U.S.C. § 3731.

We review de novo a district court’s ruling on a motion todismiss an indictment for illegal reentry, where the defendanthas asserted a denial of due process in the underlyingremoval. United States v. Ubaldo-Figueroa, 364 F.3d 1042,1047 (9th Cir. 2004).

DISCUSSION

I. Constitutional and Statutory Background

[1] The Supreme Court in 1987 ruled that as a matter ofdue process, a defendant must be permitted to bring a collat-eral challenge to a prior deportation that underlies a criminalcharge, where the prior deportation proceeding effectivelyeliminated the right of the alien to obtain judicial review. SeeUnited States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct.2148 (1987). The petitioners in Mendoza-Lopez had beendeported after a group hearing, in which the ImmigrationJudge (“IJ”) had failed to explain the availability of relieffrom deportation or the aliens’ right to appeal. Id. at 830, 839-


40. After being deported, the aliens reentered the UnitedStates, and were apprehended and charged with illegal reentryunder § 1326. Id. at 830-31. The illegal reentry statute at thattime did not expressly allow for collateral attack of a priordeportation order. Id. at 837. The Court therefore reached theconstitutional issue and held that due process does not permitthe imposition of criminal sanctions unless the underlyingcivil order is subject to meaningful judicial review. Id. at 837-39.

[2] Congress codified that principle at 8 U.S.C. § 1326(d).The statute now provides for collateral attack of the removalif “(1) the alien exhausted any administrative remedies thatmay have been available to seek relief against the order; (2)the deportation proceedings at which the order was issuedimproperly deprived the alien of the opportunity for judicialreview; and (3) the entry of the order was fundamentallyunfair.” 8 U.S.C. § 1326(d). Under our case law, a predicateremoval order satisfies the condition of being “fundamentallyunfair” for purposes of § 1326(d)(3) when the deportationproceeding violated the alien’s due process rights and thealien suffered prejudice as a result. Ubaldo-Figueroa, 364F.3d at 1048. We therefore address these statutory and consti-tutional requirements with respect to the original removal andthe subsequent reinstatements.

II. The Original Removal

[3] We have long held there is a violation of due processwhen the government affirmatively misleads an alien as to therelief available to him. See Walters v. Reno, 145 F.3d 1032,1043 (9th Cir. 1998) (holding that giving “confusing” and “af-firmatively misleading” forms to immigrants charged withdocument fraud deprived the recipients of their due processrights); see also Ubaldo-Figueroa, 364 F.3d at 1050 (due pro-cess violated where IJ failed to inform alien of his eligibilityfor relief under § 212(c)); United States v. Ortiz-Lopez, 385F.3d 1202, 1204 (9th Cir. 2004) (due process violated where


IJ failed to inform alien of eligibility for voluntary departure).Our circuit law is also well established that § 1326(d)’srequirements of exhaustion and deprivation of judicial revieware satisfied when the government misinforms an alien that heis ineligible for relief. See, e.g., United States v. Palleres-Galan, 359 F.3d 1088, 1098 (9th Cir. 2004); Ortiz-Lopez, 385F.3d at 1204 n.2; Ubaldo-Figueroa, 364 F.3d at 1050.

[4] We therefore first consider whether the order to reportmisinformed Arias-Ordonez about his eligibility for possiblerelief. The order stated that there was “no administrative reliefwhich may be extended.” That was untrue. An alien deportedin absentia has a statutory right to explain why he did notappear and to move to reopen proceedings. See 8 U.S.C.§ 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). The Immi-gration and Nationality Act provides that an alien may requestrescission of a removal ordered in absentia in “a motion toreopen filed at any time if the alien demonstrates that the aliendid not receive notice in accordance with” statutory require-ments. 8 U.S.C. § 1229a(b)(5)(C)(ii). Once a case isreopened, an alien may then petition for substantive relief. See8 C.F.R. § 1003.23(b)(3).

[5] The law thus afforded Arias-Ordonez an opportunity tomove to reopen and pursue relief, but the order to report toldhim unequivocally that there was nothing he could do. Thedistrict court therefore correctly held that the order was affir-matively misleading and rejected the government’s argumentthat any mistake in the order was minor.

The government on appeal relies on United States v.Hinojosa-Perez, 206 F.3d 832 (9th Cir. 2000), where wefound an alien could not collaterally attack his removalbecause he failed to exhaust administrative remedies. The sit-uation in that case, however, was quite different. In Hinojosa-Perez, the alien had received written and oral notice of admin-istrative remedies, including the availability of a motion toreopen. Id. at 836. The problem was he did not pursue them


cchristiansen

Highlight

Our circuit law is also well established that § 1326(d)’s requirements of exhaustion and deprivation of judicial review are satisfied when the government misinforms an alien that he is ineligible for relief.

when he had an opportunity to do so. Here, the governmenttold Arias-Ordonez that no such remedies were available sohe had no reason or opportunity to try to pursue any. More-over, the district court in Hinojosa-Perez found the alien hadsuccessfully utilized the appeals process to his advantage inthe past, and had demonstrated an awareness of free legalassistance. Id. In this case, although he had a list of attorneys,the district court explicitly found that Arias-Ordonez was notsophisticated, and there is no indication he knew how to pur-sue administrative or judicial remedies. The defendant inHinojosa-Perez was not deported until eight days after beingtaken into custody, a period of time we held was adequate toseek a reopening, id., whereas Arias-Ordonez spent sevendays with misinformation that he had no remedies available,and then was removed as soon as he turned himself in.Hinojosa-Perez is not on point.

With respect to prejudice, the district court found thatArias-Ordonez had a plausible claim to voluntary departureand would have pursued this remedy rather than submit toimmediate removal. This the government does not dispute onappeal. There is no question in this case that the affirmativelymisleading statement prejudiced Arias-Ordonez.

[6] The district court correctly sustained the defendant’scollateral attack on the original removal order by finding botha denial of due process and prejudice. The court correctlyconcluded that under the controlling authorities the originalorder could not support a prosecution for illegal reentry. See8 U.S.C. § 1326(d); Mendoza-Lopez, 481 U.S. at 837-39.

III. The Reinstatements

The government next contends that even if the originalremoval proceeding was constitutionally flawed and could notlawfully support a charge of illegal reentry, the later reinstate-ments of that removal provide an independent basis for theillegal reentry charge. The reinstatements totaled seven sepa-


rate, summary proceedings, all reinstating the original orderof removal.

[7] The illegal reentry statute criminalizes reentry into theUnited States by “any alien who . . . has been denied admis-sion, excluded, deported, or removed . . . .” 8 U.S.C.§ 1326(a)(1). A “reinstatement” is an administrative proce-dure through which immigration officials can rely on a priorremoval order to effect an alien’s departure from the country,bypassing the procedural requirements, and protections, of aregular removal proceeding. See 8 U.S.C. § 1231(a)(5);Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-91 (9thCir. 2007) (en banc). Congress adopted the current reinstate-ment provision in 1996. It provides that if an alien has ille-gally reentered the United States after removal, the prior orderof removal can be reinstated as of the original date, and thealien is not eligible for any relief and may be removed at anytime after reentry:

[T]he prior order of removal is reinstated from itsoriginal date and is not subject to being reopened orreviewed, the alien is not eligible and may not applyfor any relief . . . and the alien shall be removedunder the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).

The government argues that if it can’t rely on the originalremoval, it can instead rely on the reinstatements. The gov-ernment’s problem is that all of Arias-Ordonez’s reinstate-ments were reinstatements of the original removal. Thatremoval was not legally sound. Therefore, none of the rein-statements is legally any stronger than the original order. Aswe have seen, the original removal was statutorily and consti-tutionally flawed, so the reinstatements stand on no strongerlegal basis. As the district court recognized, the governmenthas built a house of cards that falls once the first is removed.


[8] The starting point for our analysis of the reinstate-ments, as it was for the original order, is the Supreme Court’sseminal decision in Mendoza-Lopez, which held that a priorremoval may only become an element of a criminal convic-tion if the defendant has had an opportunity to collaterallyattack its validity. 481 U.S. at 837-39. We have already heldthat Arias-Ordonez can successfully attack his originalremoval. He must also be able to attack the validity of thelater reinstatements. The issue is whether they have validityindependent of the original removal.

The government relies on our decision in Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (enbanc). We there upheld the validity of a summary reinstate-ment, even though the reinstatement lacked the safeguards ofa removal proceeding. The government thus contends that dueprocess presents no obstacles to reliance in this criminal pro-ceeding on a reinstatement of Arias-Ordonez’s originalremoval order, because a summary reinstatement itself vio-lates no constitutional protections. The government relies onMorales-Izquierdo to assert that a summary reinstatementmay always be used to support a criminal conviction withoutregard to Mendoza-Lopez’s requirement that a defendant havea right to attack an underlying removal order that is funda-mentally unfair.

The government’s argument proves too much, as Morales-Izquierdo actually supports Arias-Ordonez in this case. Thereinstatement order in Morales-Izquierdo was before us on apetition for review of the reinstatement and we held the trun-cated reinstatement proceeding was lawful. Our decision inMorales-Izquierdo makes it even more important to ensurethat the original removal proceeding complies with statutoryand constitutional safeguards, in order to enable a summaryreinstatement to serve its intended purpose. If the originalremoval does not comply with due process, it cannot survivelater collateral review when, as here, the government attempts


to use a reinstatement as an element of a criminal prosecution.An analysis of our holding makes this apparent.

In Morales-Izquierdo, we considered, en banc, a statutoryand constitutional challenge to a regulation which, for the firsttime, allowed immigration officers rather than immigrationjudges to make reinstatement determinations. 486 F.3d at 487-88. The Attorney General had adopted the regulation afterCongress significantly expanded the use of reinstatement inthe Illegal Immigration Reform and Immigrant ResponsibilityAct of 1996. Id. at 487-88, 494. Our court, sitting en banc,upheld the regulation. We did so in light of the limited andspecialized role that reinstatement plays in the post-1996immigration regime. See id. at 489-98.

In holding that it was appropriate to have immigration offi-cers make reinstatement determinations, we found reinstate-ments to be materially different from formal removalproceedings, over which immigration judges must preside. Inremoval proceedings, the inquiry can be “complex and fact-intensive.” Id. at 491. For that reason, the determination ofwhether an alien is removable or should be granted relief fromremoval “requires a formal hearing before a trier of fact.” Id.In contrast, we described reinstatement as a “narrow andmechanical” process, involving only three simple inquiries:(1) verifying the identity of the alien; (2) obtaining the priororder of removal; and (3) determining whether the alien reen-tered the United States illegally. Id. at 495-96. Thus, we held,the requirement that immigration judges preside over removalproceedings because of their potential complexity should notextend to the reinstatement context. Id. at 498.

In addition to his general challenge to the reinstatementregulation, the petitioner in Morales-Izquierdo argued, in peti-tioning for review of the reinstatement, that his particularremoval order could not have been reinstated without violat-ing his due process rights, because the underlying removalorder itself violated due process. Id. at 497. Overruling a prior


decision in Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963(9th Cir. 2004), we held that even in that circumstance, thereinstatement itself did not violate due process. Id. at 497-98.We explained that the effect of reinstatement itself was sim-ply to return the alien to the same legal position he occupiedprior to the illegal reentry:

The only effect of the reinstatement order is to cause[the alien’s] removal . . . . The reinstatement orderimposes no civil or criminal penalties, creates nonew obstacles to attacking the validity of theremoval order . . . and does not diminish petitioner’saccess to whatever path for lawful entry into theUnited States might otherwise be available to himunder the immigration laws.

Id. We held such a conclusion followed from the SupremeCourt’s decision in Fernandez-Vargas v. Gonzales, 540 U.S.30, 126 S.Ct. 2422 (2006). There the Court held that the rein-statement provision of the 1996 Act was not impermissiblyretroactive because the reinstatement itself “does not penalizean alien for reentry (criminal and civil penalties do that).” 540U.S. at 44, 126 S.Ct. at 2432.

[9] Yet, under the government’s theory of this case, thereinstatement would create an additional basis for criminalpunishment that did not exist as a result of the originalremoval. We conclude this is not consistent with our decisionin Morales-Izquierdo, because the underpinning of Morales-Izquierdo is that the alien will not face criminal punishmentas a consequence of reinstatement. See 486 F.3d at 497-98. InMorales-Izquierdo, we held that the alien’s due process rightswere not offended by reinstatement of his faulty removalorder precisely because reinstating the original order left thealien no worse off than before reentry; reinstatement wouldnot result in criminal punishment or any new civil disability.Id. In contrast, if reinstatement of a faulty removal order wereused as an independent basis for an illegal reentry conviction,


the alien would be much worse off, because criminal penaltieswould be imposed, without any opportunity for collateralattack of the original order.

In this criminal proceeding, according to the government,the only collateral attack available to the alien would be lim-ited to procedural irregularities in the reinstatement, and wewould never address the validity of the removal that was rein-stated. Direct review of the original order is not available atthe time that order is reinstated, because the reinstatementstatute prohibits review of the underlying order. See 8 U.S.C.§ 1231(a)(5) (providing that if the conditions for reinstate-ment are met, “the prior order of removal is reinstated . . . andis not subject to being reopened or reviewed . . . .”). For thisreason, we held in Morales-Izquierdo that the validity of theoriginal removal is inconsequential to the validity of the rein-statement. See 486 F.3d at 497-98.

[10] When the reinstatement becomes an element of acriminal charge, however, limiting review to the proceduralrequirements for reinstatement without regard to the sound-ness of the underlying removal proceeding implicates dueprocess concerns by effectively foreclosing all opportunity for“meaningful” review of the underlying removal. This is aresult contrary to the Supreme Court’s teaching in Mendoza-Lopez. See 481 U.S. at 837-38 (“[W]here a determinationmade in an administrative proceeding is to play a critical rolein the subsequent imposition of a criminal sanction, theremust be some meaningful review of the administrative pro-ceeding.”). The government’s theory thus runs afoul ofMendoza-Lopez’s guarantee of the right to seek a collateralattack after criminal proceedings are filed. See id. at 837-39.We must therefore conclude that when the government reliesupon a reinstatement as a basis for a reentry prosecution, dueprocess requires that the defendant have an opportunity toattack the validity of the underlying removal proceeding.

Our conclusion that Mendoza-Lopez permits a challenge tothe original removal order underlying a reinstatement used to


support a criminal indictment is consistent with the Third Cir-cuit’s decision in United States v. Charleswell, 456 F.3d 347(3d Cir. 2006). In Charleswell, the Third Circuit rejected thegovernment’s contention that the court did not have jurisdic-tion to review the original removal order where the indictmentfor illegal reentry cited only the reinstatement. The Third Cir-cuit held that Mendoza-Lopez requires an opportunity for thealien to bring a collateral attack on the original order. Id. at351-52. “To hold otherwise,” it explained, “would allow thegovernment to avoid the consequences of a fundamentallyunfair underlying deportation or removal proceeding simplyby deleting it from the indictment . . . .” Id. at 352. It thus dis-approved precisely what the government is attempting to dohere.

The district court correctly and succinctly assessed the situ-ation when it said that the government could not launder thetainted removal by reinstating it. Mendoza-Lopez andMorales-Izquierdo compel us to hold that a valid reinstate-ment of a invalid removal order cannot transform the priororder into a valid predicate for an illegal reentry conviction.

The government nevertheless additionally suggests thateven if the original removal cannot survive Arias-Ordonez’schallenge, our decisions in United States v. Luna-Madellaga,315 F.3d 1224 (9th Cir. 2003), and United States v. Diaz-Luevano, 494 F.3d 1159 (9th Cir. 2007) (per curiam), never-theless support the validity of the indictment. These were sen-tencing enhancement cases, however, addressing a verydifferent problem. Luna-Madellaga and Diaz-Luevanodecided whether the district court properly applied the sen-tencing enhancement in 8 U.S.C. § 1326(b). Subsection (b)provides for an enhanced penalty of up to twenty years for analien who reenters after removal for commission of an aggra-vated felony.

In Luna-Madellaga, we considered whether the districtcourt properly enhanced the sentence of an alien who had


been removed, was subsequently convicted of an aggravatedfelony, and then, after reinstatement of the original removalorder, was removed again. 315 F.3d at 1225. Section 1326(b)provides that an alien “whose removal was subsequent to aconviction for commission of an aggravated felony” is eligi-ble for a sentence of up to 20 years. 8 U.S.C. § 1326(b)(emphasis added). The alien contended that he should nothave his punishment enhanced on account of an aggravatedfelony committed after he was ordered removed, becausethere could have been no “removal . . . subsequent to a con-viction” within the meaning of the statute. 315 F.3d at 1226.

We held in Luna-Madellaga that the word “removal” in thecontext of the sentencing enhancement provision referred tothe alien’s physical removal, not the removal order arising outof a removal proceeding. Id. Because the alien was physicallyremoved “subsequent to” the felony conviction, he was there-fore subject to the enhanced punishment. Id. By reading “re-moval” to refer to the alien’s physical removal, the panelmajority did not have to address whether the summary rein-statement proceeding was equivalent to a “removal” in anyother legal context. See id. at 1226-27. Luna-Madellagaexplicitly pointed out that the alien had “already received afull and fair hearing, including judicial review of that priorhearing, which afford[ed] all the process to which he wasentitled.” See id.

After we decided Morales-Izquierdo, another defendant inthe same situation as Luna-Madellaga again challenged theapplication of the sentencing enhancement, contending thatMorales-Izquierdo’s sharp distinction between removal andreinstatement had invalidated Luna-Madellaga’s reading of§ 1326(b). See Diaz-Luevano, 494 F.3d at 1161. We dis-agreed, and reaffirmed Luna-Madellaga. Id. at 1162. In sodoing, we confirmed that the predicates for the sentenceenhancement provision of § 1326(b) stand separate and apartfrom the statutorily defined procedures for removals and rein-statements.


Diaz-Luevano and Luna-Madellaga thus cannot be read tosuggest that “removal,” the fundamental concept of our immi-gration law enforcement, always means “physical removal”wherever the words “removal” or “removed” appear in ourcriminal immigration laws. Nor do the sentencing cases holdthat a summary reinstatement has validity independent of theunderlying order being reinstated. The cases relate to theapplication of the language in § 1326(b) to a specificsequence of events, a valid removal order and conviction ofan aggravated felony, not relevant here. Luna-Madellaga andDiaz-Luevano thus do not support the government’s attemptto rely on reinstatements of a removal that cannot withstandcollateral attack.

[11] Moreover, we have previously assumed the result wereach today. See United States v. Leon-Paz, 340 F.3d 1003(9th Cir. 2003). In Leon-Paz, the defendant had beenremoved, and his original removal had been twice reinstated,before he was convicted of illegal reentry. Id. at 1004. Onappeal, the defendant contended that the district court erred inrejecting his collateral attack on the original removal; weagreed, finding that the removal violated due process. Id. at1007. The district court had not considered, however, whetherthe defendant had suffered prejudice, and so we remanded forconsideration of that issue. Id. We assumed that on remandthe reinstatements alone could not alternatively support thedefendant’s conviction, and instructed that if the defendantwas prejudiced, “the district court must dismiss the indict-ment.” Id. Today we express what we implied in Leon-Paz:a successful collateral attack on a removal order precludesreliance on a reinstatement of that same order in criminal pro-ceedings for illegal reentry.

CONCLUSION

The original removal order could not justify a convictionfor illegal reentry because the government affirmatively andprejudicially misled Arias-Ordonez as to his statutory right


after his removal in absentia to seek to reopen his removalproceedings. Nor could any of the subsequent reinstatementsprovide an independent basis for conviction of illegal reentrybecause they reinstated a removal that did not comply withdue process. The judgment of the district court dismissing theindictment is AFFIRMED.


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