and Submitted March 7, 2018 Pasadena, California
Amended September 14, 2018
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.
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.
AND AMENDED OPINION
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.
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.
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.
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
opinion filed on August 2, 2018 and published at 898 F.3d 948