U.S. v. Barajas–alvarado

• Decision Date: 24 August 2011
• Docket Number: No. 10–50134.,10–50134.
• Citation: 11 Cal. Daily Op. Serv. 10824,2011 Daily Journal D.A.R. 12917,655 F.3d 1077
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Luis Mario BARAJAS–ALVARADO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

655 F.3d 1077

11 Cal. Daily Op. Serv. 10,824

2011 Daily Journal D.A.R. 12,917

UNITED STATES of America, Plaintiff–Appellee,

v.Luis Mario BARAJAS–ALVARADO, Defendant–Appellant.

No. 10–50134.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 2011.Filed Aug. 24, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld Unconstitutional8 U.S.C.A. § 1225(b)(1)(D) James M. Chavez, Esquire, Federal Defenders of San Diego, San Diego, CA, for defendant-appellant Luis Mario Barajas–Alvarado.Rees F. Morgan and Randy K. Jones (briefed) and Mark R. Rehe (argued), Assistant U.S. Attorneys, San Diego, CA, for appellee United States of America.Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. 3:09–cr–01236–H–1.Before: PAMELA ANN RYMER, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

To convict an alien criminal defendant of illegal reentry under 8 U.S.C. § 1326,¹ the government must prove that the alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered. In United States v. Mendoza–Lopez, the Supreme Court held that a criminal defendant has a Fifth Amendment right to “ some meaningful review” of a prior administrative proceeding that resulted in the exclusion, deportation, or removal order used as a predicate to a § 1326 offense. 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Here, we conclude that Barajas–Alvarado was entitled to judicial review of the predicate expedited removal orders underlying his § 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. We therefore affirm the district court's denial of Barajas–Alvarado's motion to dismiss his indictment and the subsequent conviction and sentence.

I

Luis Mario Barajas–Alvarado was removed to Mexico from the United States through the San Ysidro, California, Port of Entry on December 11, 2002, and July 24, 2003, via expedited removal orders.² He returned to the United States, and was apprehended and removed to Mexico on July 27, 28, and 29, 2003, August 3, 2003 and December 9, 2004. Barajas–Alvarado was last returned to Mexico through the San Ysidro, California, Port of Entry on February 11, 2005.

On January 18, 2009, Barajas–Alvarado applied for admission into the United States at the Calexico, California, West Port of Entry, using a fraudulent permanent resident alien card. When the officer determined that Barajas–Alvarado was not the rightful owner of the identity card, Barajas–Alvarado attempted to flee to Mexico but was apprehended and escorted to the secondary inspection office.

After his arrest, Barajas–Alvarado admitted that he had purchased the immigration document from a street vendor in Mexico. He also admitted that he had been previously deported from the United States, he had a prior criminal history,³ and “he attempted to enter the [United States] to seek employment and reunite with his family in Los Angeles.”

On April 1, 2009, a grand jury for the Southern District of California returned a one-count indictment charging Barajas–Alvarado with attempted entry after deportation, in violation of § 1326(a) and (b). On September 16, 2009, Barajas–Alvarado filed a motion to dismiss the indictment for lack of a valid predicate removal order. At a subsequent hearing before the district court, he argued that a prior stipulated removal order was invalid and the two previous expedited removal orders could not be used as predicates to a § 1326 prosecution. According to Barajas–Alvarado, Mendoza–Lopez precluded use of the expedited removal orders because the proceedings that resulted in those orders were flawed, he had a constitutional due process right to challenge the validity of those proceedings, and § 1225(b)(1)(D) precluded him from making such a collateral attack.

The district court agreed that the prior stipulated removal order was invalid, but held that the December 11, 2002 and July 24, 2003 expedited removal orders could serve as a basis for the § 1326 prosecution because Barajas–Alvarado could not show “any prejudice whatsoever” resulting from the alleged procedural violations during his expedited removal proceedings. Therefore, the district court denied Barajas–Alvarado's motion to dismiss to the extent it relied on the expedited removal orders.

On December 18, 2009, as part of a written plea agreement, Barajas–Alvarado entered a conditional guilty plea to the indictment and reserved his right to appeal the use of the expedited removal orders as predicates to his § 1326 charge.

On appeal, Barajas–Alvarado claims that: (1) the Immigration and Nationality Act (INA) precludes any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a § 1326 action; (2) under Mendoza–Lopez, 481 U.S. at 837–38, 107 S.Ct. 2148, some meaningful review of the order is constitutionally required before the order can be used as a predicate to a criminal proceeding; and therefore (3) because the statute precludes review, expedited removal orders cannot be used as predicates in § 1326 prosecutions. We consider Barajas–Alvarado's premises and conclusions, each of which require a detailed look at a thorny and complex area of immigration law.

II

We first consider the nature of expedited removal under § 1225(b) and whether the limited administrative and judicial review available for these orders is sufficient to satisfy constitutional concerns when the orders are used as predicates to a § 1326 prosecution for illegal reentry.

A

The expedited removal statute, § 1225(b), provides that when an alien seeks admission to the United States after arriving at a port of entry and does not have entry documents, misrepresents the alien's identity or citizenship, or presents fraudulent identity or immigration documents, “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.” § 1225(b)(1)(A)(i).⁴ The agency has promulgated regulations governing the procedures for expedited removal. See 8 C.F.R. § 1235.3(b)(2)(i). First, “the examining immigration officer shall create a record of the facts of the case and statements made by the alien ... by means of a sworn statement using Form I–867AB, Record of Sworn Statement in Proceedings under Section 235(b)(1).” Id. The alien must sign and initial each page. Id. Second, the immigration 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. The immigration officer then serves the alien with Form I–860, and the alien must sign the back of the form to acknowledge receipt. Id. “Interpretative assistance shall be used if necessary to communicate with the alien.” Id.

In order to streamline the removal process, the INA limits administrative and judicial review of expedited removal proceedings. As § 1225(b) states, in the ordinary case the immigration officer “shall order the alien removed from the United States without further hearing or review.” § 1225(b)(1)(A)(i) (emphasis added). Congress authorized administrative review for expedited removal orders only in two narrow circumstances: (1) if the alien claims under oath that he or she is a lawful permanent resident, was previously admitted as a refugee, or was previously granted asylum, see § 1225(b)(1)(C); or (2) if the alien claims a fear of persecution if returned to the alien's home country, and an immigration officer deems this fear to be not credible, see § 1225(b)(1)(B)(iii)(III).

Congress expressly deprived courts of jurisdiction to hear a direct appeal from an expedited removal order. See § 1252(a)(2)(A) (limiting review of expedited removal orders to habeas review under § 1252(e)). Although courts have jurisdiction to hear habeas petitions from aliens subject to an expedited removal order, this jurisdiction is limited to considering whether the petitioner is legally in the country, e.g., because the alien is a lawful permanent resident, admitted as a refugee, or has been granted asylum, and whether the petitioner was expeditiously removed. See § 1252(e)(2). However, a court's habeas jurisdiction does not extend to review of the claim that an alien was wrongfully deprived of the administrative review permitted under the statute and applicable regulations. See id.; see also § 1225(b)(1)(B)(iii)(III) (providing for an IJ's review of an immigration officer's adverse credibility determination against an alien who claims a fear of persecution); Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1139 (9th Cir.2008).

Congress has also prohibited courts from reviewing a collateral challenge to expedited removal orders used as predicates to § 1326 proceedings. See § 1225(b)(1)(D). Section 1225(b)(1)(D) provides that in any criminal prosecution for illegal entry against an alien, “the court shall not have jurisdiction to hear any claim attacking the validity” of an expedited order of removal. See id.⁵

In sum, we agree with the first prong of Barajas–Alvarado's argument: the INA precludes meaningful judicial review of the validity of the proceedings that result in an expedited removal order.

B

Given this conclusion, we must turn to the second prong of Barajas–Alvarado's argument and consider whether under Mendoza–Lopez, some meaningful review of an expedited removal order is constitutionally required in order to use it as a predicate to a criminal prosecution.

In Mendoza–Lopez, two aliens arrested in Nebraska and subjected to a group deportation hearing were ordered deported to Mexico. 481 U.S. at 830, 107 S.Ct. 2148. Less than two months later, both aliens...