United States v. Jose Gambino-Ruiz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 21-50303
21-50305
Plaintiff-Appellee,
D.C. Nos.
v. 3:20-cr-03124-
LAB-1
JOSE GAMBINO-RUIZ, 3:20-cr-10144-
LAB-1
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Argued and Submitted November 15, 2023
Pasadena, California

Filed January 24, 2024

Before: Barrington D. Parker, Jr., * Jay S. Bybee, and
Kenneth K. Lee, Circuit Judges.

*
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
2 USA V. GAMBINO-RUIZ

Opinion by Judge Bybee;
Concurrence by Judge Lee

SUMMARY **

Criminal Law

The panel affirmed José Gambino-Ruiz’s conviction and
sentence for illegal reentry under 8 U.S.C. § 1326 in a case
in which he argued (1) the removal order that served as the
basis for that charge—an expedited removal—was improper
under the Immigration and Nationality Act; and (2) the
district judge considered impermissible factors in denying a
downward sentencing adjustment for acceptance of
responsibility.
In his collateral attack under 8 U.S.C. § 1326(d),
Gambino-Ruiz maintained that his 2013 removal violated
his due process rights because he was not inadmissible on
the grounds that authorize expedited removal, and thus could
not be placed in expedited removal proceedings.
The panel addressed two independent conditions set
forth in 8 U.S.C. § 1225(b)(1)(A)(i) that must be satisfied for
an alien to be subject to expedited removal.
The panel took as admitted that Gambino-Ruiz was, at
the time of his removal, designated by the Attorney
General—consistent with statutory limits on designation—
as subject to expedited removal, and was thus an alien

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 USA V. GAMBINO-RUIZ 3

“described in” 8 U.S.C. § 1225(b)(1)(A)(iii), thereby
satisfying the first condition.
The second condition requires that an immigration
officer determine that the alien being examined is
inadmissible, as relevant here, under 8 U.S.C.
§ 1182(a)(7). Gambino-Ruiz contended that he cannot be
inadmissible under § 1182(a)(7) because he never applied
for admission. The panel noted that § 1225(b)(1)(A)(iii)
authorizes the government to treat designated aliens as if
they were “arriving in the United States” for purposes of
determining their admissibility, and that if Gambino-Ruiz
was the functional equivalent of an arriving alien when he
crossed the border, as Congress has deemed, then he was at
that point also “an applicant for admission coming or
attempting to come into the United States at a port-of-
entry.” 8 C.F.R. § 1001.1(q). Lacking valid entry
documents at the moment of his constructive application,
Gambino-Ruiz was therefore inadmissible under
§ 1182(a)(7), satisfying the second condition. The panel
explained that Torres v. Barr, 976 F.3d 918 (9th Cir. 2020)
(en banc), which merely rejected the view that an alien
remains in a perpetual state of applying for admission, is
distinguishable.
The panel held that the government thus did not violate
Gambino-Ruiz’s due process rights when it removed him via
expedited proceedings in 2013, and he was properly
convicted of illegal reentry under § 1326.
Gambino-Ruiz argued that by focusing on Gambino-
Ruiz’s post-trial statements and his decision to proceed with
a jury trial, the district court considered impermissible
factors in deciding whether to grant a downward adjustment
at sentencing for acceptance of responsibility under U.S.S.G.
4 USA V. GAMBINO-RUIZ

§ 3E1.1(a) while ignoring the factors laid out in the
Sentencing Guidelines. Disagreeing and affirming the
sentence, the panel was not persuaded that this was the rare
circumstance where the adjustment for acceptance of
responsibility is due after the defendant has proceeded to
trial.
Concurring, Judge Lee wrote separately to point out that
Gambino-Ruiz’s collateral attack under § 1326(d) fails for
another reason: Even if the panel had concluded that the
removal violated Gambino-Ruiz’s due process rights, he has
not established any prejudice. Judge Lee wrote that this
court has on the books perhaps an accidental precedent that
suggests an inadvertent shift from an individualized
prejudice inquiry to a presumption of prejudice for collateral
attacks under § 1326(d). Judge Lee wrote that even if the
panel must follow this accidental precedent, it should
construe it narrowly and presume prejudice in only rare
cases.

COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego Inc,
San Diego, California, for Defendant-Appellant.
Zachary J. Howe (argued), Lyndzie Marie Carter, and
Meghan Heesch, Assistant United States Attorneys; Daniel
E. Zipp, Assistant United States Attorney, Appellate Section
Chief, Criminal Division; Randy S. Grossman, United States
Attorney; United States Department of Justice, San Diego,
California, for Plaintiff-Appellee.
Charles Roth, National Immigrant Justice Center, Chicago,
Illinois, for Amici Curiae Asian Pacific Institute on Gender-
 USA V. GAMBINO-RUIZ 5

Based Violence, Asista Immigration Assistance, National
Coalition Against Domestic Violence, National Domestic
Violence Hotline, National Immigrant Justice Center, and
Tahirh Justice Center.

OPINION

BYBEE, J., Circuit Judge:

Defendant-Appellant José Gambino-Ruiz was convicted
of illegal reentry under 8 U.S.C. § 1326. He raises two issues
in this appeal. First, Gambino-Ruiz argues that the removal
order that served as the basis for that charge—an expedited
removal—was improper under the Immigration and
Nationality Act (“INA”). Second, Gambino-Ruiz appeals
the district court’s denial of a downward sentencing
adjustment for acceptance of responsibility, on the theory
that the district judge considered impermissible factors in
deciding whether to grant that adjustment. We affirm
Gambino-Ruiz’s conviction and his sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gambino-Ruiz is a native and citizen of Mexico who
first entered the United States sometime near the beginning
of March 2013 by illegally crossing the southern border into
Arizona, not at a port of entry and without valid documents
permitting his admission. Shortly after his arrival, border
patrol agents found him near the border. He subsequently
confessed that he was an alien not legally admitted to the
United States. The immigration officer reviewing his case
determined that he was inadmissible under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) for lacking a valid entry document at
6 USA V. GAMBINO-RUIZ

the time of his application for admission. Pursuant to 8
U.S.C. § 1225(b)(1)(A)(i), the Department of Homeland
Security thus issued an order of expedited removal, and
Gambino-Ruiz was deported to Mexico shortly thereafter.
This process repeated itself just two months later, when
Gambino-Ruiz again entered the United States by illegally
crossing the border, whereupon he was arrested and again
deported following expedited removal proceedings.
In September 2020, Gambino-Ruiz once again entered
the United States without admission, this time through a
mountainous region along the border between Mexico and
California. When Border Patrol agents apprehended him six
miles from the border, he admitted that he had entered
illegally. The United States Attorney’s Office then filed an
Information with the federal District Court for the Southern
District of California, charging Gambino-Ruiz with illegal
reentry of a removed alien in violation of 8 U.S.C. § 1326(a)
and (b).
Prior to trial, Gambino-Ruiz moved for dismissal of the
charge. He argued that the government could not charge him
as an alien previously removed because his expedited
removal in 2013 was invalid under this Court’s decision in
Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc). 1 The
government opposed this motion, submitting that the
Attorney General has statutory discretion to apply expedited

1
The Information filed by the government did not specify which of
Gambino-Ruiz’s removals served as predicate for the charge of illegal
reentry. It alluded to some removal that occurred “subsequent to July 1,
2019,” suggesting that the later removal formed the basis for the charge.
However, when Gambino-Ruiz challenged the information based on the
validity of his 2013 removals, the government did not contest that the
2013 removals were the predicates for the illegal reentry charge, arguing
instead that those removals were valid.
 USA V. GAMBINO-RUIZ 7

removal to certain aliens found illegally entering the country
at the border. The district court denied Gambino-Ruiz’s
motion to dismiss. Gambino-Ruiz also moved to suppress
his admissions to the Border Patrol agents who apprehended
him—asserting that they had been taken in violation of his
Miranda rights—and the district court likewise denied this
motion after a hearing on the issue. The case then proceeded
to trial, which lasted one day. Gambino-Ruiz called no
witnesses and submitted no exhibits. The jury found him
guilty.
At sentencing, Gambino-Ruiz requested a downward
sentencing adjustment based on his acceptance of
responsibility under United States Sentencing Guideline
§ 3E1.1. The district court denied his request, citing the facts
that he had contested his guilt at trial; had shown no
contrition; and had elected to go to trial despite the existence
of less burdensome alternative proceedings that would have
allowed him to preserve legal challenges to his conviction.
The court listened as Gambino-Ruiz’s counsel enumerated
factors that weighed in his favor, such as his initial
admissions, his stipulated fingerprints, and the short duration
of the trial, but the court did not expressly address those
factors in announcing its decision on the adjustment.
Gambino-Ruiz was sentenced to 63 months in custody.
This appeal, which challenges both Gambino-Ruiz’s
conviction under § 1326 and sentence, followed.
II. STANDARDS OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 to review
the district court’s judgment of conviction and its sentence.
We review “the denial of a motion to dismiss under 8 U.S.C.
§ 1326(d) de novo.” United States v. Martinez-Hernandez,
932 F.3d 1198, 1202 (9th Cir. 2019). We also review de novo
8 USA V. GAMBINO-RUIZ

“whether the district court misapprehended the law with
respect to the acceptance of responsibility reduction.”
United States v. Green, 940 F.3d 1038, 1041 (9th Cir. 2019).
III. ANALYSIS
A. Gambino-Ruiz’s Conviction under § 1326
1. Statutory Framework
An alien is criminally liable for illegal reentry if he or
she “has been . . . deported, or removed . . . and
thereafter . . . enters, attempts to enter, or is at any time
found in, the United States.” 8 U.S.C. § 1326(a). In a
criminal action brought under § 1326, an alien has a right
under the Due Process Clause of the Fifth Amendment to
collaterally challenge the removal order underlying the
charge of illegal reentry. United States v. Ubaldo-Figueroa,
364 F.3d 1042, 1047–48 (9th Cir. 2004) (citing United States
v. Mendoza-Lopez, 481 U.S. 828, 837–38 (1987)). Congress
codified that right, with certain conditions, at 8 U.S.C.
§ 1326(d). To sustain a collateral attack under § 1326(d), the
alien must demonstrate that (1) he or she “exhausted any
administrative remedies” for relief against the order; (2) the
removal proceedings “improperly deprived the alien of the
opportunity for judicial review;” and (3) the order was
“fundamentally unfair.” Id. The Supreme Court has stated
that “each of the[se] statutory requirements . . . is
mandatory.” United States v. Palomar-Santiago, 141 S. Ct.
1615, 1622 (2021).
The parties agree that Gambino-Ruiz has satisfied the
first two elements of a § 1326(d) collateral attack. The
government concedes that the administrative exhaustion and
judicial review prongs are satisfied in the context of
expedited removal because neither are available to an alien
 USA V. GAMBINO-RUIZ 9

so removed. See United States v. Ochoa-Oregel, 904 F.3d
682, 685 (9th Cir. 2018) (“An alien who had been removed
through expedited removal proceedings automatically
satisfies the requirements for exhaustion and deprivation of
judicial review.”); United States v. Barajas-Alvarado, 655
F.3d 1077, 1081–82 (9th Cir. 2011) (holding that Congress
has deprived courts of jurisdiction to review a direct appeal
from an expedited removal order).
This leaves us with the question of whether Gambino-
Ruiz’s removal in 2013 through expedited proceedings was
“fundamentally unfair.” 8 U.S.C. § 1326(d)(3). A removal
order is fundamentally unfair if “(1) [an alien]’s due process
rights were violated by defects in the underlying deportation
proceeding, and (2) he suffered prejudice as a result.”
United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir.
2004) (alteration in original) (citing Ubaldo-Figueroa, 364
F.3d at 1048). Gambino-Ruiz maintains that his 2013
removal violated his due process rights because he was not
inadmissible on the grounds that authorize expedited
removal, and thus, could not be placed in expedited removal
proceedings.
Section 1225(b)(1) governs expedited removals. As
relevant here, § 1225(b)(1)(A)(i) provides:

If an immigration officer determines that an
alien . . . who is arriving in the United States
or is described in clause (iii) is inadmissible
under section 1182(a)(6)(C) or 1182(a)(7) of
this title, the officer shall order the alien
10 USA V. GAMBINO-RUIZ

removed from the United States without
further hearing or review . . . .

8 U.S.C. § 1225(b)(1)(A)(i). The statute sets forth two
independent conditions that must be satisfied for an alien to
be subject to expedited removal, each of which has two
possible avenues for satisfaction. First, the alien must
belong to one of two categories: aliens “who [are] arriving
in the United States” or aliens “described in clause (iii).”
Second, the examining immigration officer must determine
that the alien is inadmissible under either of the two
specifically enumerated subsections of 8 U.S.C. § 1182. The
subsection relevant to this case is § 1182(a)(7), covering the
inadmissibility of aliens who lack valid entry documents at
the time they apply for admission to the United States. 2
As to the first condition, the INA itself does not define
the precise contours of when an alien “is arriving” in the
United States. 8 U.S.C. § 1225(b)(1)(A)(i). But both parties
acknowledge that since 1997 the government has defined the
term “arriving alien” narrowly to mean “an applicant for
admission coming or attempting to come into the United
States at a port-of-entry[.]” 8 C.F.R. § 1001.1(q). Gambino-
Ruiz clearly does not meet that definition. 3

2
Section 1182(a)(6)(C) declares inadmissible any alien who makes
certain fraudulent or willful misrepresentations in seeking immigration
benefits. The government has never alleged that Gambino-Ruiz has
engaged in any such misrepresentation, and so this provision is not
relevant here.
3
The Department of Justice first issued its current definition of “arriving
alien” shortly after the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”). See 62 Fed. Reg. 10,312,
 USA V. GAMBINO-RUIZ 11

But Gambino-Ruiz does not dispute that he belongs to
the second category of alien that satisfies the first condition
necessary for expedited removal, namely aliens “described
in clause (iii).” 8 U.S.C. § 1225(b)(1)(A)(i). Clause (iii)
provides in relevant part:

(I) In general
The Attorney General may apply clauses (i)
and (ii) of this subparagraph to any or all
aliens described in subclause (II) as
designated by the Attorney General. Such
designation shall be in the sole and
unreviewable discretion of the Attorney
General and may be modified at any time.
(II) Aliens described
An alien described in this clause is an
alien . . . who has not been admitted or
paroled into the United States, and who has

10,312 (Mar. 6, 1997). It explained that “[a]fter carefully considering
[several statutory] references [to arriving aliens], the Department felt that
the statute seemed to differentiate more clearly between aliens at ports-
of-entry and those encountered elsewhere in the United States.” Id. at
10,312–13. Yet there are at least two provisions in § 1225 that explicitly
contemplate that aliens may “arrive[] in the United States (whether or
not at a designated port of arrival . . . )[.]” 8 U.S.C. § 1225(a)(1)
(emphasis added); see also id. § 1225(b)(2)(C). Moreover, § 1225(a)(1)
seems particularly relevant to § 1225(b)(1) because such arriving aliens
“shall be deemed . . . an applicant for admission.”
Although this regulation promulgates a perhaps unintuitive
interpretation, because the government has given us a plausible reading
of the statute that produces the same outcome in this case without
disturbing the government’s regulatory definition, we have no reason to
parse it further.
12 USA V. GAMBINO-RUIZ

not affirmatively shown, to the satisfaction of
an immigration officer, that the alien has been
physically present in the United States
continuously for the 2-year period
immediately prior to the date of the
determination of inadmissibility under this
subparagraph.

8 U.S.C. § 1225(b)(1)(A)(iii). 4 Thus, an alien “described in
clause (iii)” is one who falls within a class that the Attorney
General has designated as subject to expedited removal,
provided that the alien has been present in the United States
for less than two years and was not admitted or paroled into
the United States.
Since conferral of this designatory discretion, the
Attorney General and his delegees have largely exercised it
narrowly. Not until 2004 did the Attorney General designate
aliens who had entered outside a port of entry for expedited
removal. 69 Fed. Reg. 48,877, 48,879 (Aug. 11, 2004).
When he did so for the first time, he limited his designation
to those “encountered within 14 days of entry without
inspection and within 100 air miles of any U.S. international
land border.” Id. To avoid expedited removal, the regulation
places the burden of proving continuous presence during
fourteen days on the alien. Id. at 14,880. With the exception
of a period from 2019 to 2022, the designation regime
established in 2004 has remained in place since its issuance.
See 87 Fed. Reg. 16,022, 16,024 (Mar. 21, 2022), rescinding

4
The responsibilities of the Attorney General under these provisions of
the INA were transferred to the Secretary of Homeland Security in the
Homeland Security Act of 2002. For convenience, we will continue to
refer to the “Attorney General” because that is the official referred to in
the INA.
 USA V. GAMBINO-RUIZ 13

84 Fed. Reg. 35,409, 35,414 (July 23, 2019). Critically for
our purposes, it was the rule of designation in force when
Gambino-Ruiz was first removed in 2013.
Gambino-Ruiz does not claim that he fell outside the
ambit of the Attorney General’s designation at the time of his
removal. Because that was his burden, we therefore take as
admitted that he was designated by the Attorney General—
consistent with statutory limits on designation—as subject to
expedited removal. He was thus an alien “described in
clause (iii),” satisfying the first condition necessary for the
government’s use of expedited removal proceedings against
him. 8 U.S.C. § 1225(b)(1)(A)(i).
The second condition of § 1225(b)(1)(A)(i) requires that
an immigration officer determine that the alien being
examined is inadmissible, as relevant here, under 8 U.S.C.
§ 1182(a)(7). Section 1182(a)(7) declares inadmissible any
immigrant who “at the time of application for admission” is
“not in possession of a valid unexpired immigrant visa,
reentry permit, border crossing identification card, or other
valid entry document required by this chapter, and a valid
unexpired passport, or other suitable travel document . . . .”
8 U.S.C. § 1182(a)(7)(A)(i). Gambino-Ruiz admits that he
has never possessed a valid document permitting his
entrance into the United States. Yet he insists that he cannot
be inadmissible under § 1182(a)(7) because he never applied
for admission.
At first blush, the INA appears to support Gambino-
Ruiz’s position. The Act’s definitional section provides two
relevant definitions. The term “application for admission,”
it says, “has reference to the application for admission into
the United States” rather than application for a visa or some
other entry document. 8 U.S.C. § 1101(a)(4). This
14 USA V. GAMBINO-RUIZ

definition on its own would offer little guidance in this case.
But the same section also defines “admission” as “the lawful
entry of the alien into the United States after inspection and
authorization by an immigration officer.” Id.
§ 1101(a)(13)(A). This language would seem to suggest that
one who, like Gambino-Ruiz, does not seek “lawful entry”
but in fact attempts to evade “inspection . . . by an
immigration officer” by surreptitiously crossing the border
has not applied for “admission.”
But this confined interpretation ignores other salient
provisions of the INA. Importantly, it ignores the fact that
clause (iii), as discussed above, authorizes the Attorney
General to “apply clause[] (i)” to properly designated aliens.
8 U.S.C. § 1225(b)(1)(A)(iii). That is, the clause allows the
government to treat designated aliens as if they were
“arriving in the United States” for purposes of determining
their admissibility.5 And if Gambino-Ruiz was the
functional equivalent of an arriving alien when he crossed
the border, as Congress has deemed, then he was at that point

5
The statute establishes the legal equivalence of “arriving aliens” and
aliens “described in clause (iii)” in several ways. First, as we have
explained above, each status is equally and independently sufficient to
satisfy the first condition for expedited removal. Second, the heading of
the relevant subparagraph states that a single inspection procedure
applies to “aliens arriving in the United States and certain other aliens
who have not been admitted or paroled.” 8 U.S.C. § 1225(b)(1)
(emphasis added).
For its part, Congress explained in the legislative history to IIRIRA
that the provision was primarily targeted at “arriving alien[s],” but “[t]he
provisions also may be applied, in the sole and unreviewable discretion
of the Attorney General, to an[y] alien” described in subclause (II). H.R.
Rep. No. 104-828, at 209 (1996). Congress considered both classes of
immigrants to be “aliens who indisputably have no authorization to be
admitted to the United States.” Id.
 USA V. GAMBINO-RUIZ 15

also “an applicant for admission coming or attempting to
come into the United States at a port-of-entry.” 8 C.F.R.
§ 1001.1(q). Lacking valid entry documents at the moment
of his constructive application, he was therefore
inadmissible under § 1182(a)(7). 6
Gambino-Ruiz argues that this conclusion is foreclosed
by our decision in Torres v. Barr, 976 F.3d 918 (9th Cir.
2020) (en banc). He reads that case as limiting
inadmissibility under § 1182(a)(7) to those aliens who
actually apply for admission at a port of entry because we
interpreted the statutory phrase “time of application for
admission” to “refer[] only to the moment in time when the
immigrant actually applies for admission into the United
States.” Id. at 927. Because he never sought permission to
enter but rather crossed the border between ports of entry,
Gambino-Ruiz maintains that he never made an “application
for admission.” Consequently, he asserts that § 1182(a)(7)
has nothing to say about his admissibility.
We reject this reading of our precedent. Torres involved
a peculiar set of circumstances. Catherine Torres had
lawfully entered the Commonwealth of the Northern
Mariana Islands (“CNMI”) as a guest worker in 1997. Id. at

6
We note that the same result might have obtained without such
twistification if the government had given a more natural reading to
“arriving alien.” See supra note 3. If Gambino-Ruiz were considered an
arriving alien despite his entry outside a designated port, he would be
“deemed” an applicant for admission under 8 U.S.C. § 1225(a)(1). Then
he would be inadmissible under § 1182(a)(7) for having applied without
valid entry documents. We have reasoned along these lines before. See,
e.g., Mendoza-Linares v. Garland, 51 F.4th 1146, 1148–49 (9th Cir.
2022) (noting that an alien “caught at the border” was “deemed” to be an
“applicant for admission” and was therefore inadmissible under
§ 1182(a)(7)).
16 USA V. GAMBINO-RUIZ

923. At the time, the INA did not apply to CNMI, and CNMI
administered its own immigration laws. But such laws did
not confer legal status in the United States on guest workers
such as Torres. Id. at 921–22. In 2011, two years after
Congress made the INA effective in CNMI, the Board of
Immigration Appeals (“BIA”) ordered Torres removed on
the theory that she “should be treated as having made a
continuing application for admission,” and that she lacked a
“valid entry document” at “the time of her application for
admission” in violation of § 1182(a)(7). Id. at 922. Granting
her petition for review of the BIA’s order, we held in an en
banc opinion that “the time of application for admission is
the time when a noncitizen seeks permission to physically
enter United States territory, regardless of whether the
noncitizen is seeking entry from outside the country or inside
the country at a port of entry.” Id. at 924.
In reaching that conclusion, we overruled our decision in
Minto v. Sessions, a case also involving a noncitizen whose
residence in CNMI predated the application of our
immigration law there, 854 F.3d 619, 622 (9th Cir. 2017).
Minto was the source of the BIA’s theory that “any applicant
for admission should be treated as having made a continuing
application for admission that does not terminate ‘until it [is]
considered by [an immigration officer].’” Torres, 976 F.3d
at 922 (first alteration in original) (quoting Minto, 854 F.3d
at 624). Relying on Minto, the government in Torres claimed
that an “application for admission” begins when an alien
enters the United States and “continues potentially for years
or decades, until the immigrant appears before the IJ in
removal proceedings.” See id. at 926. Concluding that an
“applicant for admission” is not an unbounded class, we said
that “inadmissibility must be measured at the point in time
that an immigrant actually submits an application for entry
 USA V. GAMBINO-RUIZ 17

into the United States.” Id.; see also id. at 925 (“[T]his
phrase refers to the moment of applying for entry at the
border.”).
The upshot of our decision in Torres was that an alien
deemed to be an applicant for admission cannot be held
inadmissible under § 1182(a)(7) just because, years later, he
is found inside United States territory without documents
authorizing his presence. Rather, inadmissibility under that
provision depends on whether the alien possessed the
necessary documents at the moment he physically applied
for admission. Neither Minto nor Torres had ever made such
physical application, either “from outside the country or
inside the country at a port of entry.” Id. at 924. But that
was because they lawfully entered CNMI before the INA
applied there. Effectively, Torres and Minto never crossed
the U.S. border; the border crossed them. Torres merely
rejected the view that an alien remains in a perpetual state of
applying for admission.
Gambino-Ruiz stands in an entirely different position
because, under statutory authority, the Attorney General
designated him as having “appl[ied] for entry at the border,”
id. at 925, by entering illegally “from outside the country,”
id. at 924. That designation placed him into “a fictive legal
status,” id. at 928, as the equivalent of an arriving alien
applying for admission at a port of entry, supra at pp. 14–15.
When Gambino-Ruiz admitted to border patrol agents
shortly after his arrival that he lacked valid entry documents
at the time he crossed into the United States, he admitted his
inadmissibility under § 1182(a)(7). Unlike Torres, however,
Gambino-Ruiz was not in danger of the Attorney General
treating him as a perpetual applicant for admission because
the INA limits the Attorney General’s authority to a two-year
period after the alien enters the United States. 8 U.S.C.
18 USA V. GAMBINO-RUIZ

§ 1225(b)(1)(A)(iii). And by regulation, the Attorney
General has further limited his designation to those aliens
found within fourteen days of their illegal entry and within
100 miles of the border. 69 Fed. Reg. at 48,879.
Gambino-Ruiz repeatedly quotes two footnotes from our
decision in Torres, but neither avails him. See Torres, 976
F.3d at 928–29 nn.12-13. Although the “historical meaning”
of § 1182(a)(7) was that “‘an arriving alien’ [who] lacks
valid documents” would be inadmissible, id. at 928 n.12
(quoting H.R. Rep. No. 104-828, at 208, 209 (1996)), we
have already explained why Gambino-Ruiz is properly
treated as if he were arriving under the Attorney General’s
designatory power. We also remarked in note 13 that “no
case has held that § 1225(b)(1) [the expedited removal
provision] allows an immigration officer to apply
§ 1182(a)(7) to noncitizens who are physically but
unlawfully present in the United States.” Id. at 929 n.13.
But we read this observation as questioning the Attorney
General’s authority to designate for expedited removal an
alien who does not fall within the discretion granted in
subclause (II): someone who has been admitted or paroled
or else continuously present for more than two years. 7
Regardless, we did not “resolve the full scope of
§ 1225(b)(1)(A)(iii)” in Torres. Id. We think it evident from
the text of that provision that Gambino-Ruiz was within the
limits of the Attorney General’s power to designate him as

7
We stated in note 13 that Ҥ 1182(a)(7) . . . may apply only to
noncitizens who are ‘arriving in the United States.’” Torres, 976 F.3d at
929 n.13 (citing 8 U.S.C. § 1225(b)(1)). We omitted any reference to the
alternative basis for application of § 1182(a)(7)—description in clause
(iii)—because Torres did not involve expedited removal, much less
designation by the Attorney General under clause (iii).
 USA V. GAMBINO-RUIZ 19

legally equivalent to an arriving alien and therefore within
the scope of § 1182(a)(7).
In sum, we conclude that Torres stands for the
propositions that “an immigrant submits an ‘application for
admission’ at a distinct point in time” and “stretching the
phrase ‘at the time of application for admission’ to refer to a
period of years would push the statutory text beyond its
breaking point.” Id. at 926. We can easily distinguish
between Gambino-Ruiz, who was properly designated
because he was detained near the border shortly after he
crossed it, and Torres, who was placed in removal
proceedings some thirteen years after she lawfully entered
CNMI. We decline to attribute to Torres the narrow
interpretation of § 1182(a)(7) that Gambino-Ruiz proposes. 8
* * *
We conclude that Gambino-Ruiz was inadmissible under
§ 1182(a)(7) and therefore properly subject to expedited
removal under § 1225(b)(1)(A)(i). The theory Gambino-
Ruiz propounds overreads the significance of our decision in
Torres and would “create a perverse incentive to enter at an
unlawful rather than a lawful location.” Dep’t of Homeland
Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1983 (2020). This

8
Gambino-Ruiz and amici claim that the exception to inadmissibility
provided for certain battered women and children in § 1182(a)(6)(A)(ii)
would lose all effect if the government could apply § 1182(a)(7) as it has
here. We need not decide the contours of § 1182(a)(6)(A)(ii). We note
that it is labeled as an “exception” to the general inadmissibility standard
set out in § 1182(a)(6)(A)(i), which governs the “time or place” for
seeking admission. The only part of § 1182(a)(6) referred to in
§ 1225(b)(1)(A)(i) is § 1182(a)(6)(C), which addresses fraudulent and
willful representation to gain immigration benefits. We therefore doubt
that exposure to expedited removal would have any effect on the
availability of the exception to those who can properly claim it.
20 USA V. GAMBINO-RUIZ

was the precise situation that Congress intended to do away
with by enacting the Illegal Immigration Reform and
Immigrant Responsibility Act. Torres, 976 F.3d at 927–28.
We refuse to interpret the INA in a way that would in effect
repeal that statutory fix. We hold that the government did
not violate Gambino-Ruiz’s due process rights when it
removed him via expedited proceedings in 2013. He was
properly convicted of illegal reentry under 8 U.S.C. § 1326.
B. Acceptance of Responsibility
Gambino-Ruiz also appeals his 63-month sentence,
arguing that the district judge erred in denying him a
downward adjustment for acceptance of responsibility. He
maintains that by focusing on Gambino-Ruiz’s post-trial
statements and his decision to proceed with a jury trial, the
district judge considered impermissible factors in deciding
whether to grant the adjustment while ignoring the factors
laid out in the Sentencing Guidelines. We disagree and
affirm the sentence.
Under the Sentencing Guidelines, a district court has
discretion to award a two-level downward adjustment to a
defendant who “clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sent’g Guidelines
Manual (“U.S.S.G.”) § 3E1.1(a) (U.S. Sent’g Comm’n
2018); see also United States v. Ramos-Medina, 706 F.3d
932, 940 (9th Cir. 2013). The Sentencing Commission
explained that, although conviction after trial does not
“automatically preclude” a defendant from receiving the
reduction, only in “rare situations” will a defendant who
goes to trial be able to demonstrate acceptance of
responsibility. U.S.S.G. § 3E1.1(a) cmt. 2. Such
circumstances include “where a defendant goes to trial to
assert and preserve issues that do not relate to factual guilt,”
 USA V. GAMBINO-RUIZ 21

id., and “cases in which the defendant manifests genuine
contrition for his acts,” United States v. Rodriguez, 851 F.3d
931, 949 (9th Cir. 2017).
Although the commentary on the relevant guideline
provides a list of “appropriate considerations,” it is also clear
on this point: the list is non-exhaustive. U.S.S.G.
§ 3E1.1(a) cmt. 1 (explaining that appropriate considerations
“include, but are not limited to” the enumerated factors).
The comments further state that when a defendant goes to
trial “to assert and preserve issues that do not relate to factual
guilt,” the decision to grant the adjustment should be “based
primarily upon pre-trial statements and conduct.” Id. We
have held that generally the district court should “base[] its
final decision on the facts of the case and record as a whole.”
United States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th
Cir. 2013).
None of the district judge’s considerations in this case
requires reversal. Gambino-Ruiz objects that the judge took
into account the fact that Gambino-Ruiz chose not to make
a statement to a probation officer. We have previously
pointed to silence not as an indication of guilt but as a reason
to find that evidence of acceptance is lacking. See
Rodriguez, 851 F.3d at 949. The district court cited
Gambino-Ruiz’s decision to forgo less rigorous avenues of
preserving legal challenges to the charge against him, such
as a conditional plea, a bench trial, or a stipulated-facts trial. 9

9
A district judge “cannot rely upon the fact that a defendant refuses to
plead guilty and insists on his right to trial as the basis for denying an
acceptance of responsibility adjustment.” United States v. Mohrbacher,
182 F.3d 1041, 1052 (9th Cir. 1999). Here, the district judge took pains
to clarify that he was not penalizing Gambino-Ruiz for exercising his
22 USA V. GAMBINO-RUIZ

We have cited with approval cases where the trial court
considered whether the defendant “required the district court
to expend additional resources conducting a bench trial.”
United States v. Kellum, 372 F.3d 1141, 1146 (9th Cir. 2004)
(quoting United States v. Gonzalez, 70 F.3d 1236, 1240 (11th
Cir. 1995)).
Finally, Gambino-Ruiz contends that the district judge
did not give sufficient weight to factors that favored
adjustment. But nowhere have we mandated specific
weighting for any factors in the holistic analysis required for
acceptance of responsibility. Furthermore, we have said that
so long as “the district court considered the defendant’s
objections and did not rest its decision on impermissible
factors,” a denial of the adjustment should be upheld even
absent a specific explanation of the decision. United States
v. Mohrbacher, 182 F.3d 1041, 1052 (9th Cir. 1999).
Gambino-Ruiz has not persuaded us that his was the rare
circumstance where the adjustment for acceptance of
responsibility is due after the defendant has proceeded to
trial. Although he confessed his illegal status when he was
most recently apprehended, he sought to suppress those
inculpatory statements pre-trial. Apart from his pre-trial
decisions, he continued to contest his guilt during trial by
attempting to negate a key element of the offense, namely
his alienage. His motive at trial was clearly beyond merely

right to a jury trial. Instead, he considered the choice of proceeding and
Gambino-Ruiz’s position in the proceeding as undermining the claim
that Gambino-Ruiz went to trial only to preserve legal challenges. Even
where the judge “express[es] some frustration” at a defendant’s
insistence on going to trial, the judge may deny the adjustment if he
“specifically state[s] that he was not punishing [the defendant] for his
decision to go to trial, but was instead basing his denial of the downward
adjustment on the nature of the defense . . . .” Id. at 1052–53.
 USA V. GAMBINO-RUIZ 23

“preserv[ing] issues that do not relate to factual guilt.”
U.S.S.G. § 3E1.1 cmt. 2. We therefore affirm the district
judge’s denial of the acceptance-of-responsibility
adjustment and Gambino-Ruiz’s sentence.
IV. CONCLUSION
The judgment of the district court, both as to conviction
and as to sentence, is AFFIRMED.

LEE, Circuit Judge, concurring:

Judge Bybee’s excellent opinion methodically lays out
why Jose Gambino-Ruiz was inadmissible under 8 U.S.C.
§ 1182(a)(7) and thus subject to expedited removal under 8
U.S.C. § 1225(b)(1)(A)(i). And because his removal order
was lawful, it was not “fundamentally unfair” and his
collateral challenge under § 1326(d) fails. See United States
v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021).
I join the majority opinion but write separately to point
out that Gambino-Ruiz’s collateral attack under § 1326(d)
fails for another reason: Even if we had concluded that the
removal violated Gambino-Ruiz’s due process rights, he has
not established any prejudice. Our precedent on the
prejudice requirement under § 1326(d)(3) has sown a great
deal of confusion in recent years. We have on the books
perhaps an accidental precedent that suggests an
“inadvertent shift from an individualized prejudice inquiry
to a presumption of prejudice for collateral attacks under 8
U.S.C. § 1326(d).” United States v. Mangas, 2022 WL
898594, at *2 (9th Cir. Mar. 28, 2022) (Lee, J., concurring).
But even if we must follow this accidental precedent, we
24 USA V. GAMBINO-RUIZ

should construe it narrowly and presume prejudice in only
rare cases.
I. We have traditionally required actual prejudice for
a § 1326(d) collateral challenge but have carved out
narrow exceptions.
To prevail on a § 1326(d) collateral challenge, an alien
must show: “(1) that he exhausted all administrative
remedies available to him to appeal his removal order, (2)
that the underlying removal proceedings at which the order
was issued ‘improperly deprived [him] of the opportunity for
judicial review’ and (3) that ‘the entry of the order was
fundamentally unfair.’” United States v. Ortiz–Lopez, 385
F.3d 1202, 1203–04 (9th Cir. 2004) (per curiam) (quoting 8
U.S.C. § 1326(d)). A removal order is fundamentally unfair
if “(1) [an alien]’s due process rights were violated by
defects in the underlying deportation proceeding, and (2) he
suffered prejudice as a result.” Id. at 1204 (cleaned up)
(quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048 (9th Cir. 2004)). To establish prejudice, an alien “must
demonstrate plausible grounds for relief from deportation.”
United States v. Garcia-Martinez, 228 F.3d 956, 963 (9th
Cir. 2000).
Traditionally, our precedent has required aliens to show
actual prejudice to mount a successful collateral challenge to
a removal order under § 1326(d)(3). See United States v.
Leon-Leon, 35 F.3d 1428, 1432 (9th Cir. 1994) (rejecting
defendant’s argument that “prejudice should be presumed,”
as “the alien has the burden of proving prejudice in such
circumstances”); Garcia-Martinez, 228 F.3d at 964 (holding
that the defendant “must demonstrate actual prejudice”).
Indeed, the “only circumstance under which we suggested
no showing of prejudice was necessary was ‘when the
 USA V. GAMBINO-RUIZ 25

administrative proceedings were so flawed’ that an effective
judicial review of a deportation, which might otherwise have
been prevented, would be foreclosed.” Leon-Leon, 35 F.3d
at 1431 (citation omitted).
We have since extended the presumption of prejudice
beyond this narrow exception to removal orders for lawful
permanent residents. For example, in United States v.
Ochoa-Oregel, this court stated that “even if the government
might have been able to remove [defendant] on other
grounds through a formal removal proceeding, his removal
on illegitimate grounds is enough to show prejudice.” 904
F.3d 682, 685–86 (9th Cir. 2018); see also United States v.
Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006).
Perhaps it made some sense to presume prejudice for
lawful permanent residents because they typically enjoy
more rights and due process protections than those who are
here temporarily or unlawfully. Yet in United States v.
Valdivia-Flores, we inadvertently—or so it seems—
extended the presumption of prejudice to unlawful and non-
permanent residents who lack any plausible basis for
remaining in the country. 876 F.3d 1201 (9th Cir. 2017),
overruled on other grounds by Alfred v. Garland, 64 F.4th
1025 (9th Cir. 2023) (en banc). Valdivia-Flores had
unlawfully and repeatedly entered the United States after
being deported. Id. at 1203–04. On his fourth try at illegal
reentry, he “was charged with one count of attempted reentry
of a removed alien in violation of 8 U.S.C. § 1326 . . . .” Id.
at 1204. He then collaterally attacked his removal order. Id.
at 1205. The court’s opinion focused on whether Valdivia-
Flores was deprived of his due process rights under
§ 1326(d)(2) and whether his state drug-trafficking
conviction constituted an aggravated felony. Id. at 1205–10.
The opinion then—in an almost afterthought—stated that
26 USA V. GAMBINO-RUIZ

Valdivia-Flores was “prejudiced from his inability to seek
judicial review for that removal.” Id. at 1210. Apart from
that single sentence, the opinion did not offer any analysis or
even address whether Valdivia-Flores suffered actual
prejudice—perhaps because the issue of prejudice was not
fully briefed before the court. Nor did the court address the
defendant’s unlawful status or consider whether alternative
grounds for removal would foreclose his ability to show
prejudice. See United States v. Martinez-Hernandez, 932
F.3d 1198, 1205 n.2 (9th Cir. 2019) (distinguishing Valdivia-
Flores).
Later decisions further muddled the already murky legal
landscape. In Martinez-Hernandez, we appeared to walk
away from Valdivia-Flores’ seeming embrace of presumed
prejudice, emphasizing that in appraising “fundamental
unfairness” under § 1326(d) “the central issue for decision is
whether a defendant was removed when he should not have
been.” Martinez-Hernandez, 932 F.3d at 1204. There, the
defendants (who were here unlawfully) had been deported
because their robbery convictions were considered “crimes
of violence.” Id. at 1202. They then tried entering the
United States again and were convicted of illegal reentry
under § 1326. They collaterally challenged their removal
orders, contending that their robbery convictions no longer
qualified as crimes of violence. Id. They relied on Ochoa-
Oregel to argue that once they show error in the removal, the
government cannot later argue that the defendants could
have been removed on alternative grounds. Id. at 1204. This
court, however, reasoned that Ochoa-Oregel presented a
“fundamentally different” situation because the defendant
there was a lawful permanent resident. Id. at 1204–05. In
contrast, the defendants in Martinez-Hernandez were not
denied procedural due process or removed on “‘illegitimate
 USA V. GAMBINO-RUIZ 27

grounds’” because “the same convictions require removal
under a different section of the same statute previously
invoked.” Id. at 1205 (emphasis added).
Given the existing tension within this array of cases, our
court appears confused about whether prejudice should be
presumed, and different panels in unpublished memorandum
dispositions have reached divergent results. Compare
United States v. Reyes-Ruiz, 747 F. App’x 496, 498 (9th Cir.
2018) (unpublished) (holding that there is no presumption of
prejudice when the defendant lacked “any lawful status in
the United States at the time he was first removed”) with
Mangas, 2022 WL 898594, at *2 (unpublished) (ruling that
“Mangas’s removal order was fundamentally unfair under
our precedent of presumed prejudice.”).
* * * * *
So where does this leave us? One approach is to treat the
accidental precedent in Valdivia-Flores as non-binding. But
our precedent on accidental precedent is almost as hazy as
our presumed prejudice jurisprudence. So if we must apply
Valdivia-Flores, we should read it very narrowly based on
its unique facts and hew to our traditional view that a
defendant must generally show actual prejudice for Section
1326(d) collateral challenges. And the significant
differences between this case and Valdivia-Flores warrant
rejecting a presumption of prejudice here.
II. This court has sometimes seemingly refused to
follow “accidental” precedents.
It would not be unreasonable to believe that Valdivia-
Flores’ single-sentence endorsement of presumed prejudice
should have limited precedential value. We have noted that
“[w]here it is clear that a statement is made casually and
28 USA V. GAMBINO-RUIZ

without analysis,” or “where the statement is uttered in
passing without due consideration of the alternatives . . . it
may be appropriate to re-visit the issue in a later case.”
United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001)
(en banc) (Kozinski, J., concurring) (emphasis added); see
also V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint Union
High Sch. Dist., 484 F.3d 1230, 1232, n.1 (9th Cir. 2007)
(citing Johnson, 256 F.3d at 915).
In a similar vein, we have repeatedly stressed that
“[p]rior precedent that does not ‘squarely address’ a
particular issue does not bind later panels on the question.”
United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir.
2022) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631
(1993)); see also id. (“[C]ases are not precedential for
propositions not considered, or for matters that are simply
assumed.” (cleaned up)); United States v. Cassel, 408 F.3d
622, 633 n.9 (9th Cir. 2005) (noting that a prior case which
does not “raise or consider the implications” of a legal
proposition “does not constrain our analysis”).
Valdivia-Flores marked a notable departure—with no
explanation—from this court’s longstanding view that
defendants must show actual prejudice to satisfy the
“fundamental[] unfair[ness]” requirement of § 1326(d)(3).
See Garcia-Martinez, 228 F.3d at 964; see also Leon-Leon,
35 F.3d at 1431; United States v. Proa-Tovar, 975 F.2d 592,
595 (9th Cir. 1992) (en banc). Far from “squarely
address[ing]” the issue, Valdivia-Flores “simply assumed,”
Kirilyuk, 29 F.4th at 1134 (cleaned up), that a non-citizen is
prejudiced when his removal is not supported by its asserted
basis, Valdivia-Flores, 876 F.3d at 1210. This may be
reason enough to render Valdivia-Flores’s precedential
value suspect.
 USA V. GAMBINO-RUIZ 29

On the other hand, the cases casting doubt on the vitality
of accidental precedent may in fact be merely addressing
dicta. 1 And Valdivia-Flores’s presumption of prejudice was
not a frolic-and-detour dictum because it was central to the
case’s outcome.
III. We should read Valdivia-Flores very narrowly
based on its unique facts.
If we treat Valdivia-Flores’s accidental precedent as
binding, we should not read it expansively, as urged by
Gambino-Ruiz. Rather, we should confine an accidental
precedent to the specific facts of that case and limit its
holding to the apparent rationale that we can reasonably
glean from that ruling.
In Valdivia-Flores, it appears that the court presumed
prejudice based in part upon a lack of notice to the defendant
about the reason for removal: The government had

1
Different panels have cast Judge Kozinski’s formulation in Johnson in
distinct lights. See, e.g., Pakootas v. Teck Cominco Metals, Ltd., 452
F.3d 1066, 1082 (9th Cir. 2006) (citing Judge Kozinski’s observation for
the proposition that a statement in the relevant case “bears the hallmarks
of dicta”); see also United States v. Ingham, 486 F.3d 1068, 1079 n.8 (9th
Cir. 2007) (casting Judge Kozinski’s formulation as a delineation of
dicta); United States v. Arizona, 641 F.3d 339, 385 n.17 (9th Cir. 2011),
aff’d in part, rev’d in part and remanded, 567 U.S. 387 (2012) (Bea, J.,
concurring in part and dissenting in part) (framing a prior panel’s
statement about the INA’s civil provisions as dicta); but cf. V.S. ex rel.
A.O., 484 F.3d at 1232 n.1 (quoting Johnson, 256 F.3d at 915) (“[W]e
are not bound by a holding ‘made casually and without analysis . . . .’”
(emphasis added)); United States v. Garcia-Villegas, 575 F.3d 949, 951–
52 (9th Cir. 2009) (Graber, J., concurring in part and specially concurring
in part) (citing V.S. ex rel. A.O., 484 F.3d at 1232 n.1) (recognizing an
“exception” to the rule that a panel is bound by prior panel decisions that
applies when the “holding is ‘made casually and without analysis’”
(emphasis added)).
30 USA V. GAMBINO-RUIZ

misclassified the defendant’s felony conviction that served
as the predicate for removal. The government could not
remedy this error by later charging him with another basis
for removal from a different statute because the defendant
never had notice of that new ground for removal. But if the
government had earlier charged him with that alternative
basis for removal, the defendant would have had notice and
could not benefit from a presumption of prejudice. See
Mangas, 2022 WL 898594, at *3. Similarly, a defendant
cannot invoke presumed prejudice if his “conviction
qualifies for removability under a different section of the
same statute (i.e., the INA).” Id.; see also Martinez-
Hernandez, 932 F.3d at 1205 (finding no due process
violation because “the same convictions require removal
under a different section of the same statute previously
invoked”). There is no notice problem in that situation
because the defendant has already been advised that his
conviction would be the basis for his removal, though under
a different section of the same statute, the INA.
Put another way, we should not presume prejudice if (i)
the government had already charged the defendant with
another statutory basis for removal (because he had notice of
the alternative reason for removal), or (ii) the defendant’s
conviction serves as the predicate for removal under a
different section of the same statute (because he again had
sufficient notice). A comparison of the facts of Valdivia-
Flores and our case highlights why there is no notice
problem—and thus no presumption of prejudice—here. In
Valdivia-Flores, the defendant was being removed for an
aggravated felony, but it turned out that his state drug-
trafficking conviction did not constitute an aggravated
felony. See 876 F.3d at 1210. The government had not
charged him with any other basis for removal, and thus the
 USA V. GAMBINO-RUIZ 31

court may have presumed prejudice, given the lack of notice
of the government’s possible new rationale for removing
him (i.e., he was in the United States unlawfully).
In contrast here, Gambino-Ruiz argues that he is not
removable as charged under § 1182(a)(7) because he was not
inadmissible as a noncitizen who lacked valid entry
documents “at the time of application for admission.” But
another section from the same statute—§ 1182(a)(6) 2—
makes Gambino-Ruiz inadmissible. The evidence required
to show inadmissibility under § 1182(a)(6) largely coincides
with that of § 1182(a)(7), and indeed, Gambino-Ruiz has
conceded his removability under § 1182(a)(6)(A)(i). So we
should not presume prejudice because another statutory
provision in the same statute provided sufficient notice for
the basis of his removal.
Our decision in Martinez-Hernandez also supports
reading Valdivia-Flores along these lines. First, by
emphasizing the “broad constitutional protections” and
important legal safeguards that lawful permanent residents
enjoy, Martinez-Hernandez rightly confined Ochoa-Oregel
to cases involving lawful permanent residents invalidly
removed, who inherently lack “meaningful opportunity to
contest” their removal order when the government later
supplies an alternative basis for removal. See Martinez-
Hernandez, 932 F.3d 1204–05 (quoting Ochoa-Oregel, 904
F.3d at 685). The same cannot be said for defendants like
Gambino-Ruiz, who not only lack the protections given to
lawful permanent residents but also cannot show that they

2
Section 1182(a)(6) states: “An 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.”
32 USA V. GAMBINO-RUIZ

are prejudiced by a lack of notice of an alternative
justification for their removal.
Second, Martinez-Hernandez distinguished Valdivia-
Flores by explaining that the “government did not suggest
that the conviction provided a ground for removal under
another statutory provision.” Id. n.2 (emphasis added). That
is, in Valdivia-Flores, the only other basis for removability
was the defendant’s unlawful status. But that post hoc
justification for removability (unlawful status) was distinct
from the basis for defendant’s removability as charged (an
aggravated felony conviction). In Martinez-Hernandez, on
the other hand, the predicate for the defendants’
removability was the same underlying felony convictions—
no matter if those convictions constituted an aggravated
felony “crime of violence” or an aggravated felony “theft
offense.” Cf. Id. at 1205 (“The only issue before us today is
whether those convictions justified the Defendants’
removals.”). Likewise here, the basis for Gambino-Ruiz’s
removal is the same—unlawful presence in the United States
under §§ 1182(a)(6) or 1182(a)(7).
We have stressed that “the central issue for decision is
whether a defendant was removed when he should not have
been.” Id. at 1204. That is not the case here. Gambino-
Ruiz’s expedited removal did not violate his due process
rights under 8 U.S.C. § 1326(d), and in any event, he has also
failed to show actual prejudice from his removal through
expedited proceedings.