Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Ochoa-Oregel

United States Court of Appeals, Ninth Circuit

September 14, 2018

United States of America, Plaintiff-Appellee,
v.
Francisco Ochoa-Oregel, Defendant-Appellant.

          Argued and Submitted March 7, 2018 Pasadena, California

          Amended September 14, 2018

          Appeal from the United States District Court for the Southern District of California D.C. No. 3:16-cr-01116-BEN-1 Roger T. Benitez, Senior District Judge, Presiding

          Whitney Z. Bernstein (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

          Nicole Ries Fox (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Dana L. Christensen, [*] Chief District Judge.

         ORDER AND AMENDED OPINION

         SUMMARY[**]

         Criminal Law

         The panel filed an Order amending its August 2, 2018 Opinion, and an Amended Opinion reversing a conviction for unlawful re-entry into the United States in violation of 8 U.S.C. § 1326.

         The panel held that the defendant's 2008 and 2011 removals were fundamentally unfair, and neither can serve as a predicate removal for purposes of § 1326.

         The panel held that because the defendant was ordered removed in absentia, but did not receive notice of either his in absentia removal hearing or of his ability to file a motion to reopen such proceedings, he has satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal, which was based on a prior conviction for California domestic violence battery. The panel also held that because circuit precedent at the time of the 2008 removal hearing established that California battery was not a categorical crime of violence, it was error to remove the defendant for a crime of domestic violence under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act based on his California battery conviction.

         The panel held that the due process defects in the 2008 removal proceeding infected the defendant's 2011 expedited removal for presenting invalid entry documents. The panel wrote that a person should not be stripped of the important legal entitlements that come with lawful permanent resident status – including protection against expedited removal – through a legally erroneous decision that he or she had no meaningful opportunity to contest. The panel rejected the government's contention that the defendant was not prejudiced. The panel explained that if the defendant was still a lawful permanent resident, his entry documents were not invalid, and even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.

         ORDER

         The opinion filed on August 2, 2018 and published at 898 F.3d 948 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.