NOT FOR PUBLICATION FILED
JAN 11 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10458
Plaintiff-Appellee, D.C. No. 14-cv-01883-RCC
v. MEMORANDUM*
GUILLERMO ORTEGA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted December 15, 2016
San Francisco, CA
Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.
On May 28, 2015, Guillermo Ortega was convicted of illegal reentry in
violation of 8 U.S.C. § 1326(a)(1). The predicate to Ortega’s indictment and
conviction was an order for removal, issued by a United States Immigration Judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
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(“IJ”), on April 23, 2001 (“Removal Order”), after a short hearing (“Removal
Hearing”). The district court sentenced Ortega to thirty-seven months’
imprisonment. Ortega now appeals his conviction and sentence.
1. In a criminal proceeding under § 1326(a)(1), an alien may challenge
the validity of the underlying deportation order if he or she “demonstrates that—
(1) the alien exhausted any administrative remedies that may have been available
to seek relief against the order; (2) the deportation proceedings at which the order
was issued improperly deprived the alien of the opportunity for judicial review;
and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d); see
also, e.g., United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir. 2010);
United States v. Herrera-Blanco, 232 F.3d 715, 718 (9th Cir. 2000). The first and
second elements of the statute are satisfied even if the alien waived his right to
appeal his order of removal, “where the record contains an inference that the
petitioner is eligible for relief from deportation, but the IJ fails to advise the alien
of this possibility and give him [or her] the opportunity to develop the issue.”
United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (internal
citations and quotation marks omitted). For purposes of this statute’s third
element, an alien must show that (1) his or her due process rights were violated by
defects in his or her underlying deportation proceeding, and (2) he or she suffered
prejudice as a result of the defect. United States v. Arrieta, 224 F.3d 1076, 1079
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(9th Cir. 2000). If an alien establishes all of these factors, an order for removal
cannot support a prosecution under § 1326(a), United States v. Rodriguez-
Ocampo, 664 F.3d 1275, 1278–79 (9th Cir. 2011), and any conviction and sentence
for such a crime must be vacated, United States v. Leon-Paz, 340 F.3d 1003, 1007
(9th Cir. 2003).
2. The district court erred in failing to address the validity of the
underlying removal order, although clearly pressed to do so. And several errors
sufficient to satisfy § 1326(d) tainted the Removal Hearing. Principally, the IJ
misclassified two of Ortega’s prior convictions. See 8 U.S.C. §§
1182(a)(2)(A)(ii)(II), 1101(a)(43)(F), 1227(a)(2)(A)(i). Based on these faulty
categorizations, the IJ then mistakenly determined that Ortega was ineligible for
any relief and thus failed to explain to Ortega his possible eligibility for voluntary
removal or a waiver pursuant to Section 212 of the Immigration and Nationality
Act. Cumulatively weighed, these mistakes satisfy § 1326(d)(1) and (d)(2) and the
due process prong of § 1326(d)(3). See, e.g., United States v. Gonzalez-Villalobos,
724 F.3d 1125, 1130 (9th Cir. 2013); United States v. Vidal-Mendoza, 705 F.3d
1012, 1016 (9th Cir. 2013).
3. Nevertheless, Ortega’s extensive criminal record may still have
deprived him of any plausible ground for relief from deportation in April of 2001.
If so, Ortega would not have been prejudiced by the IJ’s errors, and his indictment,
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conviction, and sentence would remain valid. See, e.g., United States v. Leon-Leon,
35 F.3d 1428, 1432 (9th Cir. 1994); United States v. Proa-Tovar, 975 F.2d 592,
595–96 (9th Cir. 1992). Accordingly, we remand so that the district court can
consider fully whether Ortega was prejudiced by the deprivation of his due process
rights in the Removal Hearing. See Lopez-Velasquez, 629 F.3d at 755–56.
4. The remand renders it unnecessary for the Court to consider any
remaining issues.1
REMANDED.
1
The case’s peculiar facts prompt one final observation. In a prior
prosecution, the United States Attorney’s Office for the Southern District of
California (“USAO”) also initially charged Ortega under § 1326. When Ortega’s
California counsel challenged the legality of his client’s removal, the USAO filed a
superseding indictment charging Ortega with illegal entry under § 1325(a), a crime
for which no prior removal is required. Therefore, while the parties in California
did not “end up litigating . . . [‘the validity of . . . Ortega’s prior immigration judge
removal’],” the USAO did abandon its § 1326 charges and even accepted Ortega’s
“sentencing arguments” against a “plus-four” enhancement in his sentence
traceable to the Removal Order. Why the Government here seemed entirely
unaware of or indifferent to the USAO’s course of conduct is a troubling but
unanswerable question.
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