United States v. Jose Ochoa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10354
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00525-RS-1

JOSE OCHOA, ORDER AND
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding

Argued and Submitted August 9, 2016
San Francisco, California

Filed July 3, 2017

Before: Susan P. Graber and M. Margaret McKeown,
Circuit Judges, and Barbara M. G. Lynn,* Chief District
Judge.

Order;
Per Curiam Opinion;
Concurrence by Judge Graber

*
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
2 UNITED STATES V. OCHOA

SUMMARY**

Criminal Law

The panel granted a petition for panel rehearing, withdrew
its memorandum disposition filed December 14, 2016, denied
a petition for rehearing en banc as moot, and filed a published
opinion reversing the defendant’s conviction for illegal
reentry in violation of 8 U.S.C. § 1326.

The removal underlying the defendant’s illegal reentry
conviction was based on the defendant’s prior conviction for
conspiracy to export defense articles without a license in
violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778.

The panel held that by criminalizing unlicensed exports
of a broad range of munitions, § 2278 sweeps more broadly
than the generic federal aggravated felony or firearms
offenses, and that the defendant’s underlying conviction thus
does not categorically qualify as a proper § 1326 predicate
offense. The panel held that § 2278 is not divisible, and thus
did not proceed to the modified categorical approach.
Because the statute was overbroad and indivisible, the § 2278
conviction could not serve as a proper predicate for removal.

The panel remanded with instructions to dismiss the
indictment.

Concurring, Judge Graber, joined by Judge McKeown and
Chief District Judge Lynn, wrote separately to express her

**
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 3

view that this case should be reheard en banc to correct this
court’s course with respect to the scope of collateral
challenges under 8 U.S.C. § 1326(d), which has strayed
increasingly far from the statutory text and is out of step with
sister circuits’ correct interpretation.

COUNSEL

Geoffrey A. Hensen (argued), Chief Assistant Federal Public
Defender; Steven G. Kalar, Federal Public Defender; Office
of the Federal Public Defender, San Francisco, California; for
Defendant-Appellant.

Phillip Kopczynski (argued), Special Assistant United States
Attorney; Barbara J. Valliere, Chief, Appellate Division;
Brian J. Stretch, United States Attorney; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
4 UNITED STATES V. OCHOA

ORDER

Appellant’s petition for panel rehearing is GRANTED.
The memorandum disposition previously filed December 14,
2016, and appearing at 665 F. App’x 635, is hereby
withdrawn. As the court’s memorandum disposition is
withdrawn, Appellant’s petition for rehearing en banc is
DENIED as moot. A published opinion will be filed
contemporaneously with this order. Further petitions for
rehearing and rehearing en banc may be filed.

OPINION

PER CURIAM:

Defendant Jose Ochoa, a citizen of Mexico, was
convicted of conspiracy to export defense articles without a
license, 18 U.S.C. § 371, 22 U.S.C. § 2778, and was removed
from the United States because of that conviction. When he
returned to the United States, he was convicted of illegal
reentry in violation of 8 U.S.C. § 1326. In this appeal, he
argues that the removal order was invalid because his
18 U.S.C. § 371 conviction for conspiring to violate
22 U.S.C. § 2778 was not a categorical match to the
Immigration and Nationality Act’s (“INA”) aggravated felony
or firearms offense categories. Reviewing de novo, United
States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir.
2014), we hold that Defendant was not originally removable
as charged, and so could not be convicted of illegal reentry.
We therefore reverse the judgment of conviction.
 UNITED STATES V. OCHOA 5

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, Defendant was indicted for violating 18 U.S.C.
§ 371, the generic conspiracy statute; the object of the
conspiracy was a violation of the Arms Export Control Act,
22 U.S.C. § 2778, exporting defense articles without a
license. Defendant pleaded guilty to those charges in 1998
and was sentenced to a term of imprisonment. While in
federal prison, he was served with a notice to appear in
November 1998, charging him with removability. The notice
to appear alleged, among other things, that Defendant was
convicted on April 6, 1998, of conspiracy to export defense
articles without a license in violation of 18 U.S.C. § 371 and
22 U.S.C. § 2778(a), and that the “‘defense articles’ included
firearms and ammunition per criminal indictment #CR-M-97-
387.” Defendant’s purported removability was predicated on
conviction of an aggravated felony as set forth in 8 U.S.C.
§ 1101(a)(43)(C) and on conviction of a firearms offense as
set forth in 8 U.S.C. § 1227(a)(2)(C).

At the hearing before an immigration judge (“IJ”) on
January 21, 1999, Defendant appeared without a lawyer,
though he was offered more time to secure one. At the outset,
the IJ explained that Defendant could appeal any decision
rendered and provided Defendant with a document correctly
explaining his appellate rights. With respect to the
underlying conviction, the IJ asked if “some of the things [he
was] exporting [were] firearms and ammunition,” and
Defendant answered, “Yes I was.” After reviewing the
certified indictment and judgment, the IJ explained that those
documents “indicate[d] that between December 4th of 1997
and December 7th of that same year, [Defendant] and others
conspired to ship firearms and ammunition from the United
States to Mexico,” and that the “[vehicle] [Defendant] was in
6 UNITED STATES V. OCHOA

possession of contained 9 firearms and approximately 28,000
rounds of ammunition.” The IJ “f[ou]nd that the charge of
deportability under section [237(a)(2)(C)] of the [INA] has
been sustained” and allowed the government “to amend by
pen and ink the charge under 237 to read 101(a)(43)(U),”
clarifying that Defendant’s conviction was for conspiracy.
The IJ found Defendant removable as charged.

After an exchange with Defendant, the IJ concluded: “I
don’t see that there is any relief available to you.” He
continued: “Now, you can accept that decision but if you
disagree with it, you would have 30 days to appeal it. Did
you want to accept my decision or reserve your right to
appeal?” Defendant accepted. He served the remainder of
his federal prison sentence and was removed to Mexico
following his release on April 13, 2001.

In 2014, federal agents discovered Defendant in
California; he was indicted for illegal reentry, under 8 U.S.C.
§ 1326. Defendant moved to dismiss the indictment, arguing
that his 2001 removal proceedings violated due process
because his prior conviction constituted neither an aggravated
felony nor a firearms offense—an argument known as a
“collateral attack” on the removal order. The district court
denied that motion, Defendant was convicted, and the court
sentenced Defendant to 16 months in prison. Following his
release, Defendant was removed to Mexico once again.
Defendant timely appeals.
 UNITED STATES V. OCHOA 7

DISCUSSION

A. Availability of Collateral Review

A defendant charged with illegal reentry pursuant to
8 U.S.C. § 1326 has the right to bring a collateral attack
challenging the validity of his underlying removal order,
because that order serves as a predicate element of his
conviction. United States v. Aguilera-Rios, 769 F.3d 626,
629–30 (9th Cir. 2014); see also United States v. Mendoza-
Lopez, 481 U.S. 828, 838 (1987) (holding, before enactment
of § 1326(d), that due process requires an opportunity to
collaterally challenge a removal proceeding “at the very least
where the defects . . . foreclose judicial review of that
proceeding”). The mechanism for mounting such a challenge
is codified in § 1326(d). To succeed, Defendant must
demonstrate that: (1) he has exhausted any administrative
remedies that may have been available to seek relief from the
order; (2) the deportation proceedings at which the order was
issued improperly deprived him of the opportunity for
judicial review; and (3) the entry of the order was
fundamentally unfair. 8 U.S.C. § 1326(d). But under our
circuit’s law, if Defendant was not convicted of an offense
that made him removable under the INA to begin with, he is
excused from proving the first two requirements. See United
States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006)
(holding all three requirements satisfied when notice to
appear had charged removability solely on the basis of a
crime that was not an aggravated felony under intervening
case law); United States v. Pallares-Galan, 359 F.3d 1088,
1096, 1103–04 (9th Cir. 2004) (analyzing the statute of
conviction to determine that the removal order was improper,
satisfying first two elements, but remanding for the district
court to consider the third element).
8 UNITED STATES V. OCHOA

As explained below, we conclude that Defendant’s statute
of conviction was not an aggravated felony. And
Ҥ 1326(d)(1) and (d)(2) [a]re satisfied when the IJ
improperly characterized a prior conviction as an aggravated
felony and erroneously informed the alien that he was
ineligible for discretionary relief.” United States v. Gonzalez-
Villalobos, 724 F.3d 1125, 1131 (9th Cir. 2013). With
respect to § 1326(d)(3), we have explained that, if Defendant
“‘was removed when he should not have been,’ his . . .
removal was fundamentally unfair, and he may not be
convicted of reentry after deportation.” Aguilera-Rios,
769 F.3d at 630 (quoting Camacho-Lopez, 450 F.3d at 930).
In its original briefing, the government conceded that
“[Defendant’s] appeal turns on the third prong of this test”
and that, if the third prong is satisfied, “his appeal should be
granted.”

When evaluating whether a defendant “would have had
the right to be in the United States, as a lawful permanent
resident, but for the IJ’s determination that he was
removable,” we have adopted the view that “statutory
interpretation decisions are fully retroactive.” Id. at 633
(applying intervening Supreme Court precedent
retroactively); see also Pallares-Galan, 359 F.3d at 1103–04
(conducting statutory interpretation and applying it
retroactively). As a result, we can identify no bar in 8 U.S.C.
§ 1326(d) to considering Defendant’s challenge on the merits.
Here, the § 1326(d) inquiry collapses into a de novo review
of Defendant’s removability in 1998.

B. Categorical Analysis

Defendant argues that his prior conviction did not support
removal. To analyze that question, we apply the categorical
 UNITED STATES V. OCHOA 9

approach announced by the Supreme Court in Taylor v.
United States, 495 U.S. 575 (1990), and its progeny. The
analysis proceeds in three steps:

[W]e inquire first “whether the elements of
the crime of conviction sufficiently match the
elements of the generic federal crime.” If the
statute is overbroad and thus not a categorical
match, we next ask whether the statute’s
elements are also an indivisible set. Finally,
if the statute is divisible, then the modified
categorical approach applies and “a
sentencing court looks to a limited class of
documents to determine what crime, with
what elements, a defendant was convicted of.”

United States v. Arriaga-Pinon, 852 F.3d 1195, 1198–99 (9th
Cir. 2017) (alterations omitted) (quoting Mathis v. United
States, 136 S. Ct. 2243, 2248–49 (2016)).

1. Overbreadth

In determining whether the statute of conviction
“categorically qualifies as a predicate offense” for
immigration purposes, “we focus solely on whether the
elements of the statute of conviction match the elements of
the identified qualifying federal offense.” Id. at 1199 (citing
Taylor, 495 U.S. at 600–01). If the elements match,
Defendant’s removal order was proper. But if the statute of
conviction “criminalizes conduct that would not qualify as a
federal predicate offense, then the offense does not
categorically qualify as a proper predicate offense.” Id.
10 UNITED STATES V. OCHOA

Defendant was convicted of generic federal conspiracy in
violation of 18 U.S.C. § 371.1 The object of that conspiracy
was the unlicensed export of defense articles in violation of
22 U.S.C. § 2778(b)(2), which provides:

[N]o defense articles or defense services
designated by the President under [the United
States Munitions List] may be exported or
imported without a license . . . .

Willful violation of this provision is a federal crime. Id.
§ 2778(c). The Munitions List referenced in § 2778 includes
both firearms and ammunition, but also a vast array of other
items, including “underwater hardware” and various
chemicals and biological materials. 22 C.F.R. § 121.1.

The IJ held that Defendant’s conviction constituted two
generic offenses, each justifying removability under the INA.
First, the IJ held that the crime of conviction was an
“aggravated felony,” which the INA defines as (among other
things) a “conspiracy to commit” “illicit trafficking in
firearms or destructive devices (as defined in [18 U.S.C.
§ 921]).” 8 U.S.C. § 1101(a)(43)(U), (C). The referenced
provision defines a “firearm” in relevant part as “any weapon
(including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an
explosive.” 18 U.S.C. § 921(a)(3). Second, the IJ held that

1
In addition to arguing that 22 U.S.C. § 2778 is overbroad and
indivisible, Defendant argues, in the alternative, that the generic
conspiracy statute itself is indivisible, precluding a “second step” analysis
of § 2778, the conspiracy’s object offense. Because, as explained below,
we hold that § 2778 is overbroad and indivisible, we decline to reach
Defendant’s argument concerning the conspiracy statute.
 UNITED STATES V. OCHOA 11

Defendant’s prior conviction was a “firearm offense[],”
which includes conspiring to “purchase[], sell[], offer[] for
sale, exchang[e], us[e], own[], possess[], or carry[] . . . any
weapon, part, or accessory which is a firearm.” 8 U.S.C.
§ 1227(a)(2)(C).

The elements of 22 U.S.C. § 2778 “sweep[] more
broadly” than the elements of the generic federal aggravated
felony or firearms offenses. Descamps v. United States,
133 S. Ct. 2276, 2283 (2013). By incorporating the entire
Munitions List, § 2778 criminalizes unlicensed export of a
broad range of “munitions,” such as “underwater hardware”;
neither generic federal definition speaks to most of the items
on that list. Thus, Defendant’s underlying conviction “does
not categorically qualify as a proper predicate offense.”
Arriaga-Pinon, 852 F.3d at 1199; accord United States v.
Guillen-Cruz, 853 F.3d 768, 773 (5th Cir. 2017).

2. Divisibility

The next step requires determining whether Defendant’s
underlying statute of conviction “contains a single, indivisible
set of elements.” Arriaga-Pinon, 852 F.3d at 1199. “Only
divisible statutes are subject to the modified categorical
approach.” Sandoval v. Yates, 847 F.3d 697, 704 (9th Cir.
2017). Here, we must decide whether the many items on the
Munitions List constitute alternative elements of 22 U.S.C.
§ 2778, or merely list alternative means of committing a
single crime. See Mathis, 136 S. Ct. at 2256 (explaining that,
when “faced with an alternatively phrased statute,” courts
must “determine whether its listed items are elements or
means”). “[A] single element must be part of the charged
offense with which a jury necessarily found the defendant
12 UNITED STATES V. OCHOA

guilty.” Almanza-Arenas v. Lynch, 815 F.3d 469, 477 (9th
Cir. 2016) (en banc) (citing Taylor, 495 U.S. at 602).

We begin by considering the statute’s text. See id. We
may also consult court decisions interpreting the statute.
Mathis, 136 S. Ct. at 2256 (discussing “authoritative sources
of state law”); Sandoval, 847 F.3d at 704 (“[A] court looks
first to the statute itself and then to the case law interpreting
it.”). But if these sources are not dispositive, we may “peek
at the record documents [for] the sole and limited purpose of
determining whether the listed items are elements of the
offense.” Mathis, 136 S. Ct. at 2256–57 (brackets omitted)
(quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir.
2015) (Kozinski, J., dissenting from denial of reh’g en banc)).
If the text is drafted with alternative elements, effectively
creating “several different crimes,” Descamps, 133 S. Ct. at
2285 & n.2 (internal quotation marks and ellipsis omitted),
the statute is divisible, Mathis, 136 S. Ct. at 2256.

Section 2778(b)(2) provides that “no defense articles or
defense services designated by the President [on the
Munitions List] may be exported or imported without a
license.” 22 U.S.C. § 2778(b)(2). Any person who violates
§ 2778(b)(2), or “any rule or regulation issued under th[at]
section,” may be fined not more than $1 million or
imprisoned for not more than 20 years, or both. Id. § 2778(c).
We know of no binding caselaw resolving whether a jury
must specifically decide which defense article a § 2778
defendant exported without a license. In an earlier case, we
noted that “the elements of an export control violation under
22 U.S.C. § 2778 are as follows: the (1) willful (2) export or
attempted export (3) of articles listed on the [Munitions List]
(4) without a license.” United States v. Chi Mak, 683 F.3d
1126, 1131 (9th Cir. 2012) (citing Kuhali v. Reno, 266 F.3d
 UNITED STATES V. OCHOA 13

93, 104 (2d Cir. 2001)); see also United States v.
Covarrubias, 94 F.3d 172, 175 (5th Cir. 1996) (per curiam)
(same); United States v. Murphy, 852 F.2d 1, 6 (1st Cir. 1988)
(same). Despite our generalized treatment of the “article”
element in Chi Mak, the jury charge in that case specifically
asked the jurors to find that the defendant had exported
“technical data.” 683 F.3d at 1132. Because of the
ambiguity, that case does not resolve the unanimity question
before us. See also United States v. Bishop, 740 F.3d 927,
931 (4th Cir. 2014) (describing a § 2778 indictment charging
the specific ammunition that the defendant attempted to
export).2

Faced with a lack of clarity, we may “peek” at the
indictment for insight into the element-or-means distinction.
Mathis, 136 S. Ct. at 2256–57. Discussing the Iowa burglary
statute at issue in Mathis, the Supreme Court explained that,
if “one count of an indictment and correlative jury
instructions charge a defendant with burgling a ‘building,
structure, or vehicle’—thus reiterating all the terms of Iowa’s
law,” it would be “as clear an indication as any that each

2
Before Mathis, the Fifth Circuit had held that a conviction under
18 U.S.C. § 554 for violating 22 U.S.C. § 2778 was divisible, Franco-
Casasola v. Holder, 773 F.3d 33, 37–38 (5th Cir. 2014), but as we pointed
out in Almanza-Arenas, that court “ha[d] not addressed the elements
versus means distinction, but rather seem[ed] to apply the modified
approach to all disjunctive subsections.” 815 F.3d at 480 n.17. More
recently, the Fifth Circuit held that § 2778 was not an aggravated felony
under 8 U.S.C. § 1101(a)(43)(C). Guillen-Cruz, 853 F.3d at 771. The
court reached that holding in the alternative. First, under the modified
categorical approach, the defendant did not plead guilty to exporting an
item on the munitions list. Id. at 772–73. Second, the court held that the
conviction was not an aggravated felony under the categorical approach,
though it did not reach the divisibility prong. Id. at 773. As explained, we
employ different reasoning here.
14 UNITED STATES V. OCHOA

alternative is only a possible means of commission, not an
element that the prosecutor must prove to a jury beyond a
reasonable doubt.” Id. at 2257 (citing Descamps, 133 S. Ct.
at 2290). On the other hand, “an indictment and jury
instructions could indicate, by referencing one alternative
term to the exclusion of all others, that the statute contains a
list of elements, each one of which goes toward a separate
crime.” Id. Here, the count to which Defendant pleaded
guilty alleged a conspiracy to export “defense articles, that is,
firearms and ammunition, which were designated as defense
articles on the United States Munitions List.” That both
defense articles were charged in a single count is telling:
although a count joining two or more distinct offenses is
duplicitous, “there is no bar to stating a charge in a single
count if a statute is read to create a single crime but provides
for various ways to commit it.” 1A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 142 (4th
ed.). Taking Mathis at its word, the indictment combining
more than one Munitions List item into a single count “is as
clear an indication as any that each alternative is only a
possible means of commission, not an element.” 136 S. Ct.
at 2257. But to the extent that these materials do not “speak
plainly” enough, we cannot “satisfy ‘Taylor’s demand for
certainty’ when determining whether a defendant was
convicted of a generic offense.” Id. (quoting Shepard v.
United States, 544 U.S. 13, 21 (2005)); see also Arriaga-
Pinon, 852 F.3d at 1201 (Thomas, C.J., concurring) (noting
that the “focus of Mathis was the determination of that
‘certainty’ in deciding whether the statute of conviction was
divisible”). This reasoning means that the statute of
conviction was not divisible, ending our analysis. Thus, we
do not proceed to the modified categorical approach.
 UNITED STATES V. OCHOA 15

CONCLUSION

Because the statute was overbroad and indivisible,
Defendant’s conviction under 22 U.S.C. § 2778 could not
serve as a proper predicate for removal—either as an
aggravated felony or a firearms offense. Accordingly, we
REVERSE and REMAND with instructions to dismiss the
indictment.

GRABER, Circuit Judge, with whom McKEOWN, Circuit
Judge, and LYNN, Chief District Judge, join, concurring:

I concur in the opinion because it faithfully applies the
law of our circuit. I write separately to express my view that
our law with respect to the scope of collateral challenges
under 8 U.S.C. § 1326(d) has strayed increasingly far from
the statutory text and that we are out of step with our sister
circuits’ correct interpretation. For that reason, we should
rehear this case en banc to correct our course.

The panel opinion sets forth the background of this case.
I emphasize only one aspect of the facts. While incarcerated
in 1998 after pleading guilty to a one-count indictment for
federal conspiracy, Defendant Jose Ochoa was served with a
notice to appear. The notice specifically charged that
Defendant’s conspiracy conviction constituted both an
aggravated felony and a firearms offense under the
Immigration and Nationality Act. At his 1999 hearing, the
immigration judge (“IJ”) repeatedly apprised Defendant of
his appellate rights, both orally and in writing. The IJ
determined, on the record, that Defendant’s conviction
matched the two removability categories contained in the
16 UNITED STATES V. OCHOA

notice to appear. And after being offered the opportunity to
appeal or, instead, to accept the decision, Defendant chose to
accept the decision. After completing his prison sentence for
the underlying crime, he was removed from the United States.

It was not until 2014, after he was indicted for illegal
reentry, that Defendant first challenged the IJ’s conclusion
that his conspiracy conviction was a categorical match to the
aggravated felony and firearms offense provisions in the
immigration statutes.

A. The Collateral Attack Provision

Defendant challenges his illegal reentry conviction by
invoking the “collateral attack” provision of the illegal
reentry statute:

In a criminal proceeding under this
section, an alien may not challenge the
validity of the deportation order described in
subsection (a)(1) or subsection (b) unless the
alien 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.
 UNITED STATES V. OCHOA 17

8 U.S.C. § 1326(d). An order is “fundamentally unfair”
under (d)(3) if “(1) [a defendant’s] due process rights were
violated by defects in [the] underlying deportation
proceeding, and (2) [the defendant] suffered prejudice as a
result of the defects.” United States v. Garcia-Martinez,
228 F.3d 956, 960 (9th Cir. 2000) (internal quotation marks
omitted). Subsection (d) was “added in direct response to
[United States v. Mendoza-Lopez, 481 U.S. 828 (1987)].”
United States v. Barajas-Alvarado, 655 F.3d 1077, 1082 n.6
(9th Cir. 2011). Prior to Mendoza-Lopez, it was not clear
under what circumstances, if any, an illegal reentry defendant
could challenge the underlying “order of deportation” when
the “prior deportation is an element of the crime.” 481 U.S.
at 833. That decision made clear that due process requires
“some meaningful review of the administrative proceeding,”
id. at 837–38, which the statute now affords.

B. The Meaning of § 1326(d)(1) and (2)

Section 1326(d) places the burden on the alien to
demonstrate three things in order to challenge collaterally the
validity of the deportation order underlying a charge of illegal
reentry. By using the conjunction “and,” Congress signified
that the alien must establish that all three conditions are met.
See United States v. Soto-Mateo, 799 F.3d 117, 120 (1st Cir.
2015) (noting that “[t]he elements of 1326(d) are conjunctive,
and an appellant must satisfy all of those elements in order to
prevail”), cert. denied, 136 S. Ct. 1236 (2016); United States
v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003) (same); United
States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.
2002) (same).

The text of the statute plainly contains two different kinds
of provisions. As noted, paragraph (d)(3) is substantive. A
18 UNITED STATES V. OCHOA

deportation order may be challenged if the entry of the order
was “fundamentally unfair,” that is, if it violated due process
and prejudiced the alien. Garcia-Martinez, 228 F.3d at 960.

But paragraphs (d)(1) and (2) describe purely procedural
criteria. The alien is required to have exhausted any available
administrative remedies, and “the deportation proceedings at
which the order was issued improperly deprived the alien of
the opportunity for judicial review.” 8 U.S.C. § 1326(d)(2)
(emphasis added). Subsection (d) is designed to allow
collateral attack only as a safety valve for those who could
not seek judicial review at the time the original removal order
issued.

Here, it is clear that Defendant cannot fulfill the terms of
the statute. He had an opportunity to seek administrative and
judicial review. He knew that he had the opportunity,
because the IJ explained his appellate rights accurately, both
orally and in writing. An appeal would have allowed the
agency and the courts to consider on the merits the arguments
that he now makes. Whether those arguments would have
succeeded at the time is beside the point; the statute disallows
a collateral attack if Defendant had the opportunity to obtain
administrative and judicial review and thus the opportunity to
challenge the categorization of his conviction as an
aggravated felony and a firearms offense. He simply decided
to waive his right to appeal.

As I will explain, though, our court—unlike our sister
circuits—has ignored the procedural focus of paragraphs
(d)(1) and (2) and essentially read them out of the statute.
Partly as a consequence of failing to demand adherence to
(d)(1) and (2), our court has made a second error: labeling as
“fundamentally unfair” a decision that was correct under
 UNITED STATES V. OCHOA 19

extant precedent but as to which the governing law changed
later. The history of how the demise of paragraphs (d)(1) and
(2) occurred, step by step like a frog subjected to increasingly
hot water, will be recounted below.

C. Discretionary Relief

We have long held that, when an IJ erroneously informs
an alien that he or she is ineligible for discretionary relief, the
first two prongs of § 1326(d) are satisfied and that, under
§ 1326(d)(3), the alien’s due process rights were violated; the
remaining question is whether the alien has demonstrated the
prejudice required under § 1326(d)(3). For example, in
United States v. Muro-Inclan, 249 F.3d 1180, 1181 (9th Cir.
2001), an illegal reentry defendant was not informed of his
“possible eligibility for a waiver of deportation” at his
removal hearing. On collateral attack of that removal order,
we held that “a waiver is not ‘considered and intelligent’
when ‘the record contains an inference that the petitioner is
eligible for relief from deportation,’ but the Immigration
Judge fails to ‘advise the alien of this possibility and give him
the opportunity to develop the issue.’” Id. at 1183 (quoting
United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.
2000)). In that case, despite the lack of a knowing and
intelligent appellate waiver, we could not call the order
“fundamentally unfair” under § 1326(d)(3). Id. at 1185–86.

Even in this analysis, our court is an outlier. Several
years ago, we noted that our precedents characterizing “an
IJ’s failure to inform an alien of possible eligibility for
discretionary relief [as] a due process violation” take a
minority position. United States v. Lopez-Velasquez,
629 F.3d 894, 897 n.2 (9th Cir. 2010) (en banc). Although
we and the Second Circuit hold this view, the Third, Fourth,
20 UNITED STATES V. OCHOA

Fifth, Sixth, Seventh, Eighth, and Tenth Circuits do not
appear to consider such failures to be due process violations.
Id.1 The First Circuit has now adopted the majority position
as well. See Soto-Mateo, 799 F.3d at 123 (joining “a majority
of circuits [that] have rejected the proposition that there is a
constitutional right to be informed of eligibility for—or to be
considered for—discretionary relief” (quoting United States
v. Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006)); see
also United States v. Cordova-Soto, 804 F.3d 714, 723 (5th
Cir. 2015) (describing the “majority of circuits,” but not the
Ninth, as finding no constitutional right to be informed of
eligibility for discretionary relief), cert. denied, 136 S. Ct.
2507 (2016); United States v. Torres, 383 F.3d 92, 104 (3d
Cir. 2004) (noting that failing to apprise an alien of
discretionary relief does not violate due process, just as “mere
errors of state law” do not violate due process in habeas cases
(internal quotation marks omitted)).

D. Plenary Legal Review

Of greater concern to me, however, are the significant
additional steps that we have taken, beyond
constitutionalizing the right to be informed of discretionary

1
The cases we cited as taking the opposite view are United States v.
Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006) (stating that an alien
does not have a constitutional right to be informed of eligibility for
discretionary relief); Bonhometre v. Gonzales, 414 F.3d 442, 448 n.9 (3d
Cir. 2005) (same); United States v. Aguirre-Tello, 353 F.3d 1199, 1205
(10th Cir. 2004) (en banc) (same); United States v. Lopez-Ortiz, 313 F.3d
225, 231 (5th Cir. 2002) (same); see also Smith v. Ashcroft, 295 F.3d 425,
430 (4th Cir. 2002) (stating that an alien’s eligibility for discretionary
relief is not a constitutionally protected interest); Escudero-Corona v. INS,
244 F.3d 608, 615 (8th Cir. 2001) (same); Ashki v. INS, 233 F.3d 913, 921
(6th Cir. 2000) (same).
 UNITED STATES V. OCHOA 21

relief. In particular, we have made two innovative
jurisprudential moves. First, our precedents permit the
retroactive application of intervening changes in law to an
underlying removal proceeding, so that the IJ’s then-correct
decision is rendered incorrect in hindsight—even when the
change in law is announced in our own opinion adjudicating
the collateral attack. Second, we also have permitted an
illegal reentry defendant to attack collaterally not just the
failure of the IJ to explain the potential availability of
discretionary relief, but also the very ground on which the
alien was removed. In so doing, we characterize a removal
order as “fundamentally unfair” under 8 U.S.C.
§ 1326(d)(3)—finding that the order violates due process and
causes prejudice—merely because we have subsequently
identified a legal error. Those two innovations combine to
compel the result in this case.

Move number one. In United States v. Pallares-Galan,
359 F.3d 1088 (9th Cir. 2004), the defendant in an illegal
reentry appeal litigated both the exhaustion issue under
§ 1326(d) and the question whether his underlying conviction
actually constituted an aggravated felony under the modified
categorical approach. The defendant had been convicted of
several state crimes, and the INS initiated removal
proceedings. Id. at 1092. The IJ ruled that one of the
defendant’s convictions was an aggravated felony, and the
defendant waived his right to appeal. Id. at 1093. After his
removal, the defendant was arrested and charged with illegal
reentry. Id. He argued that his conviction for a state
misdemeanor charge was not an aggravated felony as the IJ
had declared. Id.

We held that the defendant’s waiver of his right to appeal
“was not ‘considered and intelligent’ because the IJ
22 UNITED STATES V. OCHOA

erroneously informed him that he was not eligible for relief
from deportation on account of his 1999 state misdemeanor
[conviction].” Id. at 1096. We reasoned that, “[w]here ‘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 the opportunity to develop the
issue,’ we do not consider an alien’s waiver of his right to
appeal his deportation order to be ‘considered and
intelligent.’” Id. (quoting Muro-Inclan, 249 F.3d at 1182).
That passage applied our circuit’s view, described above, that
due process requires the IJ to apprise aliens of possible
discretionary relief. But I wish to emphasize our method for
locating such an “inference” in the record: We conducted the
modified categorical analysis in the same decision, decided
that the defendant’s underlying conviction was not a
categorical match to an aggravated felony, and only then held
that the defendant’s waiver was not “considered and
intelligent.” Id. at 1099–1101. In other words, we used our
own, retroactively applied view of the categorical analysis, on
the merits, to justify classifying the prior appellate waiver as
not “considered and intelligent”—a classic “bootstrapping”
approach.

In effect, we held that a substantive error in the IJ’s legal
analysis—raised and discovered only on collateral
attack—satisfies the first two prongs of § 1326(d). Pallares-
Galan, 359 F.3d at 1104. That result is difficult to square
with the requirements of § 1326(d)(1) and (2), which are
designed to require that merits arguments be presented to the
IJ and argued on appeal in the first instance.

In move number two, we have gone further still. When a
collateral challenge implicates an alien’s removability itself,
we subsume the “fundamental unfairness” prong of
 UNITED STATES V. OCHOA 23

§ 1326(d)(3) entirely within our retroactive, de novo legal
analysis. For example, in United States v. Camacho-Lopez,
450 F.3d 928, 929 (9th Cir. 2006), a legal permanent resident
was convicted of “vehicular manslaughter with gross
negligence, in violation of California Penal Code section
191.5(a),” served with a notice to appear alleging
removability for an aggravated felony, and ordered removed;
he knew about, but waived, his right to appeal. When the
defendant was later found in the United States and charged
with illegal reentry under § 1326, he moved to dismiss the
indictment, arguing that intervening legal developments
clarified that his conviction was not for an aggravated felony.
Id. Citing Leocal v. Ashcroft, 543 U.S. 1 (2004), and Lara-
Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005)—
decisions rendered six and seven years after the defendant’s
removal order issued—we agreed. Camacho-Lopez, 450 F.3d
at 929–30. We noted the government’s concession that those
later decisions applied to the 1998 deportation hearing and
that the defendant was both “excused from the exhaustion
requirement” and “deprived of a meaningful opportunity for
judicial review” within the meaning of § 1326(d)(1) and (2).
Id. at 930. Addressing the final “fundamentally unfair” prong
in § 1326(d)(3), we held that, because the defendant was
charged with removability “only for having committed an
aggravated felony,” and intervening cases clarified that his
crime was not an aggravated felony, he “was removed when
he should not have been and clearly suffered prejudice.” Id.
We reversed and remanded with instructions to dismiss the
indictment. Id. The intervening change in law satisfied the
§ 1326(d)(3) requirement that the defendant show a due
process violation, and we assumed prejudice from the error.

Reading the cases together, the law of our circuit is that
an illegal reentry defendant may invoke later-decided cases
24 UNITED STATES V. OCHOA

to attack an IJ’s finding of removability.2 See United States
v. Aguilera-Rios, 769 F.3d 626, 631 (9th Cir. 2014) (so
holding). Those later-decided cases might include a
categorical analysis conducted in another section of the same
opinion adjudicating a collateral attack—just as we do in this
case. Pallares-Galan, 359 F.3d at 1099–1101. And if we
ultimately agree with the illegal reentry defendant on the
merits of his collateral attack, we find the removal order
fundamentally unfair, assuming that it rested on no other
ground. Camacho-Lopez, 450 F.3d at 930. In sum, if we
conclude, years later in a collateral attack, employing de novo
review, that the IJ erred in finding removability, we hold that
all three of § 1326(d)’s requirements are met, even if the
defendant could have exhausted administrative remedies,
could have appealed the removal order, knew that appeal was
available, and failed to appeal. Our progress toward this
point was incremental, but the result—a cooked frog—is
incompatible with the statute.

E. Other courts’ approaches

Other circuits have not eroded § 1326(d) to such a degree.
For example, in Soto-Mateo, the First Circuit noted that,
“when ‘performing the collateral attack analysis under
§ 1326(d), an inquiring court ordinarily should address the
initial [(d)(1)] test of exhaustion of administrative remedies
before going on to the other two tests.’” 799 F.3d at 120

2
As we pointed out in Aguilera-Rios, 769 F.3d at 632–33, we have
apparently carved out a narrow exception to full retroactivity when the
only issue is whether the alien was eligible for relief from removal, as
distinct from whether the alien was removable at all. See United States v.
Gomez, 757 F.3d 885, 899 (9th Cir. 2014) (considering the law at the time
of the defendant’s removal order to determine eligibility for relief from
removal).
 UNITED STATES V. OCHOA 25

(brackets omitted) (quoting United States v. DeLeon,
444 F.3d 41, 45 (1st Cir. 2006)). The court held that the
defendant “did not exhaust available administrative
remedies” before the IJ, “waived his right to appeal,” and
could not avoid that default by “asserting that his waiver was
neither knowing nor intelligent.” Id. He “plainly knew what
he was doing” when he waived his appellate rights. Id. at
122. Addressing the argument that the defendant would
never have waived his appeal “if he had known that he was
not removable as an aggravated felon,” the court held, first,
that the unsettled state of the law on whether his conviction
was an aggravated felony did not matter: “A waiver of rights
based on a reasonable interpretation of existing law is not
rendered faulty by later jurisprudential developments.” Id. at
123 (citing Brady v. United States, 397 U.S. 742, 757 (1970)).
The court denied this challenge without “reach[ing] the
question of whether he satisfied either the judicial review
requirement of [§] 1326(d)(2) or the fundamental fairness
requirement of [§] 1326(d)(3).” Id.

Other courts also read the § 1326(d) requirements
differently than we do. See United States v. Gil-Lopez,
825 F.3d 819, 820 (7th Cir. 2016) (refusing to consider an
argument that the conviction was not for an aggravated felony
because a § 1326 defendant signed an appellate waiver and
thus did not exhaust remedies); United States v. Villanueva-
Diaz, 634 F.3d 844, 851–52 (5th Cir. 2011) (rejecting a
collateral attack because, though intervening decision made
the conviction not a removable offense, the “deportation
proceedings were not ‘fundamentally unfair’”); United States
v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005) (refusing to
entertain a collateral attack because “[a] subsequent change
in the law does not render [the defendant’s] waiver of his
right to appeal ‘not considered or intelligent’”); United States
26 UNITED STATES V. OCHOA

v. Rivera-Nevarez, 418 F.3d 1104, 1105–06 (10th Cir. 2005)
(agreeing with the defendant that later-decided statutory
interpretation cases were “fully retroactive,” but holding that
the defendant still could not show he was deprived of
opportunity for judicial review under § 1326(d)(2), so the IJ’s
legal error concerning removability was harmless)3; United
States v. Martinez-Rocha, 337 F.3d 566, 569–70 (6th Cir.
2003) (finding the § 1326(d) requirements unsatisfied when
defendant signed an appellate waiver, noting that “a waiver
need not be the best choice under the circumstances in order
for it to be ‘considered and intelligent’”). We are apparently
alone, on the wrong side of an (at least) 6-to-1 circuit split.

This state of affairs is especially surprising because,
elsewhere, we readily enforce appellate waivers. In criminal
appeals, for example, we foreclose challenges to a sentence
when the defendant waived the right to appeal the Sentencing
Guidelines determination, because that the alternative “would
render meaningless the express waiver of the right” to bring
such a challenge. United States v. Medina-Carrasco,
815 F.3d 457, 462 (9th Cir. 2016). Even if a Guidelines
calculation was seemingly incorrect, setting aside an explicit
waiver “would nullify the waiver based on the very sort of

3
This conclusion runs directly contrary to our court’s decision in
Aguilera-Rios, which rejected the government’s argument that the removal
order was valid because it rested on governing law at the time, and only
subsequent, intervening decisions invalidated it. We applied the same
retroactivity rule that Rivera-Nevarez invoked—even citing that case,
769 F.3d at 631—and held that, at least where intervening statutory
interpretation law rendered an alien “not removable” as of the time of the
IJ hearing, that intervening law would be applied retroactively. Id. at
632–33. We never mentioned that the Tenth Circuit in Rivera-Nevarez
ultimately rejected the retroactive legal challenge because § 1326(d) still
barred it, rendering the original legal error harmless.
 UNITED STATES V. OCHOA 27

claim it was intended to waive.” Id. (quoting United States
v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007)). “We will
enforce a valid waiver even if the claims that could have been
made on appeal absent that waiver appear meritorious,
because the whole point of a waiver is the relinquishment of
claims regardless of their merit.” Id. at 462–63 (internal
quotation marks and emphasis omitted).

F. Conclusion

By permitting collateral legal challenges to an IJ’s
removability determination in the way that we do, we
retroactively label erroneous-only-in-hindsight (but un-
appealed) categorical determinations as “fundamentally
unfair,” and as satisfying all three requirements of § 1326(d).
See, e.g., Camacho-Lopez, 450 F.3d at 930. Our precedent
has the effect of nullifying the procedural requirements of
§ 1326(d)(1) and (2) and creating in their place a new,
substantive right to retroactive de novo review, thereby
undermining the finality interests the statute was designed to
protect. These anomalies call for en banc consideration to
bring our jurisprudence in line with the statute and the other
circuits.