United States v. Raya-Vaca

• Citation: 771 F.3d 1195
• Decision Date: 10 November 2014
• Docket Number: No. 13–50129.,13–50129.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Victor Manuel RAYA–VACA, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

771 F.3d 1195

UNITED STATES of America, Plaintiff–Appellee

v.Victor Manuel RAYA–VACA, Defendant–Appellant.

No. 13–50129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2014.

Filed Nov. 10, 2014.

Chloe S. Dillon, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Senior District Judge, Presiding. D.C. No. 3:12–cr–05261–IEG–1.

Before: STEPHEN REINHARDT, RAYMOND C. FISHER, and MARY H. MURGUIA, Circuit Judges.

OPINION

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.¹ 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.See Designating Aliens For Expedited Removal, 69 Fed.Reg. at 48880.

During Raya–Vaca's expedited removal proceedings, Border Patrol Agent Alberto Baca interviewed Raya–Vaca in English and prepared a Record of Sworn Statement. Raya–Vaca then signed an acknowledgment that he had read the Record of Sworn Statement (the Jurat). Agent Baca found Raya–Vaca inadmissible and subject to removal because he had illegally entered the United States without inspection and was not in possession of any valid documentation permitting him to enter. Agent Baca ordered that Raya–Vaca be removed from the United States.

III. Proceedings Before the District Court

On November 27, 2012, a Border Patrol agent arrested Raya–Vaca and several other individuals about seven miles north of the United States–Mexico border, near Tecate, California. When Raya–Vaca admitted that he was a Mexican citizen with no valid entry documents, the agent arrested Raya–Vaca and transported him to a Border Patrol station.

On December 27, 2012, the Government charged Raya–Vaca by information with one count of illegal reentry after having been removed from the United States, in violation of 8 U.S.C. § 1326(a).

Raya–Vaca moved to dismiss the information under 8 U.S.C. § 1326(d), asserting that no valid removal order existed upon which the information could be predicated. Raya–Vaca contended that neither the 2009 stipulated removal order nor the 2011 expedited removal order could serve as a valid predicate for the prosecution under 8 U.S.C. § 1326. The Government disclaimed any intent to rely on the 2009 stipulated removal order as a predicate element for the § 1326 charge. Instead, the Government contended that Raya–Vaca had no plausible relief from his 2011 removal order and thus that he suffered no prejudice attributable to any due process violation at his 2011 expedited removal proceeding. See United States v. Barajas–Alvarado, 655 F.3d 1077, 1089 (9th Cir.2011) (stating that to show prejudice, an alien must show that he had plausible grounds for relief). Therefore, according to the Government, Raya–Vaca's challenge under § 1326(d) to his 2011 removal order could not succeed.

The district court denied Raya–Vaca's motion to dismiss the information. Given the Government's failure to argue that no due process violation occurred, the district court assumed that Raya–Vaca's due process rights were violated in the course of his 2011 expedited removal proceedings and looked to whether an immigration...