Argued and Submitted, June 5, 2014, Pasadena, California
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-05261-IEG-1. Irma E. Gonzalez, Senior District Judge, Presiding.
The panel reversed the district court's denial of a motion to dismiss an information charging, and the defendant's conviction of, illegal reentry after having been removed in violation of 8 U.S.C. § 1326, and remanded.
Given the Supreme Court's repeated pronouncement that the Due Process Clause applies to all who have entered the United States -- legally or not -- and given the clear fact of the defendant's entry, the panel held that the defendant was entitled to expedited removal proceedings that conformed to the dictates of due process. The panel held that an immigration officer's failure, during the defendant's expedited removal proceedings, to advise the defendant of the charge against him and to permit him to review the sworn statement prepared by the officer violated the defendant's due process rights to notice and an opportunity to respond.
The panel held that the defendant suffered prejudice as a result of the entry of the removal order because he could plausibly have been granted relief in the form of withdrawal of his application for admission. The panel concluded that the removal order was, accordingly, fundamentally unfair and cannot serve as the predicate for his conviction under § 1326.
Chloe S. Dillon (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Stephen Reinhardt, Raymond C. Fisher, and Mary H. Murguia, Circuit Judges.
MURGUIA, Circuit Judge.
Victor Manuel Raya-Vaca appeals from a judgment of conviction following a conditional plea of guilty to one count of illegal reentry after having been removed in violation of 8 U.S.C. § 1326. In 2011, Raya-Vaca was arrested while in the United States, subjected to expedited removal proceedings under 8 U.S.C. § 1225, and removed; he was later found in the United States and again arrested. He collaterally attacks the removal order entered against him in 2011, upon which his conviction under § 1326 was predicated. Raya-Vaca contends that his expedited removal proceedings did not comport with due process because, among other errors, the immigration officer who entered the removal order failed to provide Raya-Vaca with notice of the charge against him and an opportunity to respond. Raya-Vaca further asserts that he suffered prejudice as a result. We agree. Accordingly, we reverse the district court's denial of Raya-Vaca's motion to dismiss the information and the subsequent conviction.
Factual and Procedural History
I. Background on Raya-Vaca
Raya-Vaca, a 33-year-old native and citizen of Mexico, first came to the United States at approximately the age of six. His mother brought him and his siblings to join his father, who at the time was living and working in Salinas, California. While his parents worked in agriculture, Raya-Vaca attended school and, after turning eighteen, held various full-time jobs. At age twenty-four, he began a relationship with Trisha, a natural-born United States citizen. The two lived together for seven years before Raya-Vaca's removal, and they have two children who are United States citizens. Raya-Vaca's brother is also a United States citizen.
While in California, Raya-Vaca was convicted of three misdemeanors. In 2003, he was convicted of misdemeanor burglary in violation of California Penal Code section 459
and sentenced to ten days in jail and three years of probation. In 2010, he was convicted of obstruction of a police officer in violation of California Penal Code section 148(a)(1) and false identification to a police officer in violation of California Penal Code section 148.9(a), for which he served three days in jail and three years of probation.
Raya-Vaca has also had prior contact with immigration authorities. Immigration officials sent him to Mexico in 2009, after which he sought to reenter the United States in March 2009, May 2009, June 2009, September 2009, November 2009, and September 2010. On three of those occasions, some of the individuals traveling with Raya-Vaca identified him as a smuggler. With the exception of his attempted reentry in September 2009, Raya-Vaca returned voluntarily to Mexico--and therefore suffered no formal immigration consequences, such as a removal order--after each attempted entry. After attempting to reenter on September 19, 2009, however, Raya-Vaca stipulated to removal and waived his right to a hearing; an immigration judge (IJ) then considered Raya-Vaca's written representations of waiver sufficient to find him removable and issued an order of removal on September 22, 2009.
II. Raya-Vaca's July 2011 Reentry and Removal Order
On July 24, 2011, Raya-Vaca entered the United States by " walking through the mountains," with the intention of returning to Salinas to join his family. He was apprehended the following day near the State Route 94 Border Patrol checkpoint outside Potrero, California. Immigration officials initiated expedited removal proceedings pursuant to 8 U.S.C. § 1225.
A. Expedited Removal Proceedings Under 8 U.S.C. § 1225
An expedited removal proceeding under 8 U.S.C. § 1225 allows immigration officers to (1) determine whether certain aliens are inadmissible, and (2) enter removal orders, generally without hearing or further review.
Two classes of individuals are subject to expedited removal proceedings. Originally, only aliens " arriving" in the United States were subject to the proceedings. However, the Department of Homeland Security (DHS) has expanded the reach of expedited removal proceedings to aliens who have entered the United States, as long as they (1) " are physically present in the U.S. without having been admitted or paroled," (2) are discovered " within 100 air miles" of the United States border, and (3) cannot establish that they have been " physically present in the U.S." for the fourteen days prior to the encounter with immigration authorities. Designating Aliens For Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004). All such aliens are deemed " applicants for admission" into the United States, regardless of whether they seek to enter at a port of entry or have already entered the country. 8 U.S.C. § 1225(a)(1).
During an expedited removal proceeding, an immigration officer must conduct an inspection and determine whether the alien is inadmissible because the alien (1) has made a material misrepresentation to gain admission into the United States, (2) has " falsely represent[ed]" himself to be a United States citizen, or (3) does not possess a " valid entry document." See 8 U.S.C. § 1225(a)(3), (b)(1)(A)(i); see also id. § 1182(a)(6)(C)(i), (a)(6)(C)(ii)(I), (a)(7)(A)(i). When making a finding of inadmissibility, the examining immigration officer must " create a record of the facts of the case and statements made by the
alien." 8 C.F.R. § 235.3(b)(2)(i). The officer " shall . . . have the alien read (or have read to him or her) the statement." Id. Moreover, the officer " shall advise the alien of the charges against him or her on Form I--860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in the sworn statement." Id. Then, if the officer determines the alien to be inadmissible, " the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i).
Unless an alien professes a fear of persecution or claims to be a lawful permanent resident (LPR), an expedited removal order " is not subject to administrative appeal." Id. § 1225(b)(1)(C). However, the Attorney General has the discretion to provide a type of statutory relief to certain aliens: withdrawal of application for admission. See id. § 1225(a)(4). When an individual is permitted to " withdraw" his application for admission, he may leave voluntarily and without a removal order, and thus without facing formal immigration consequences. See 8 C.F.R. § 1235.4.
B. Raya-Vaca's Expedited Removal Proceedings
Raya-Vaca faced expedited removal proceedings because he was present in the United States without admission, had been discovered within 100 miles of the border, and could not establish that he had been present in the United States for the prior fourteen days. S ...