U.S.A v. Arias-ordonez

• Decision Date: 08 March 2010
• Docket Number: No. 08-10259.,08-10259.
• Citation: 597 F.3d 972
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Noe ARIAS-ORDONEZ, DefendantAppellee.

597 F.3d 972

UNITED STATES of America, Plaintiff-Appellant, v. Noe ARIAS-ORDONEZ, DefendantAppellee.

No. 08-10259.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct, 9, 2009.

Filed March 8, 2010.

COPYRIGHT MATERIAL OMITTED

Owen P. Martikan, San Francisco, CA for the plaintiff-appellant.

Elizabeth M. Falk, San Francisco, CA for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge Presiding. D.C. No. 3:07-cr-00738-MMC.

Before MARY M. SCHROEDER and MARSHA S. BERZON, Circuit Judges and MILTON I. SHADUR, ^* District Judge.

SCHROEDER, Circuit Judge:

This government appeal arises in the context of an apparently routine prosecution for reentry after removal under 8 U.S.C. § 1326 that turned out to be anything but routine. The alien did everything he was instructed to do to effectuate his removal, after it had been ordered in absentia. He even sent his mother to report for removal in his place while he obtained proper identification. But the order instructing him to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure. The government does not contest the district court's ruling that the flaws in the underlying removal prejudiced the alien. The government argues, however, that the subsequent summary reinstatements of the flawed removal can support the criminal indictment for illegal reentry. We think not and affirm the district court's dismissal of the indictment.

BACKGROUND

Noe Arias-Ordonez is a citizen of Mexico who has lived in this country since the age of ten and now has a United States citizen child. He was convicted in 2002 of misdemeanor possession of a controlledsubstance and placed in removal proceedings. His mother posted a $5000 bond to secure his release and informed ICE officials of his address. Just before his release from detention, Arias-Ordonez received a notice to appear at a removal hearing, but the notice did not state the date it would take place. That information was not sent for another week, when the clerk at the immigration court sent the notice by regular mail. The government does not dispute that Arias-Ordonez never received it. He was removed in absentia on June 6, 2003.

ICE sent the subsequent order to report for removal by certified mail the following October, and Arias-Ordonez did receive it. The order to report said:

As you know, following a hearing in your case you were found removable and the hearing officer has entered an order of removal. A review of your file indicates that there is no administrative relief which may be extended to you, and it is now incumbent on this Service to enforce your departure from the United States.

The statement that there were no administrative remedies available was not a true statement, because an alien ordered removed in absentia has a statutory right to seek to reopen his case and petition for relief. See 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(h).

When Arias-Ordonez nevertheless reported for removal to comply with the order, he was originally turned away for lack of proper identification. He complied with the instructions for removal so assiduously that he sent his mother to tell the authorities he was coming, while he retrieved his ID. The authorities eventually told him to return the next day, and when he did, he was promptly removed.

Because Arias-Ordonez was no longer in this country, he no longer had any legally recognized right to petition for reopening. See 8 C.F.R. § 1003.2(d) ("A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States."); Singh v. Gonzales, 412 F.3d 1117, 1120-21 (9th Cir.2005) ("The Board interpreted [8 C.F.R. § 1003.2(d)] to mean that any time a petitioner files a motion to reopen after departing the country, the motion is barred.").

After his original removal, Arias-Ordonez repeatedly returned to this country. Each time, the government in summary proceedings reinstated the original removal order and sent him back to Mexico, for a total of seven reinstatements.

Finally, in 2007, the United States indicted Arias-Ordonez pursuant to 8 U.S.C § 1326. Section 1326(a) authorizes imprisonment and fines for any alien who has been removed or who departs while an order of removal is outstanding and who thereafter enters or attempts to enter the United States. 8 U.S.C. § 1326(a). An immigrant who is charged with illegal reentry may, however, under limited circumstances, collaterally attack a removal order the government introduces to meet its burden of proof. 8 U.S.C. § 1326(d). The statute limits such collateral attacks to those situations in which the alien has exhausted his administrative remedies, the removal order has improperly deprived the alien of the opportunity for judicial review, and the entry of the removal order was "fundamentally unfair." Id.

Relying on § 1326(d), Arias-Ordonez moved for dismissal of the indictment on the grounds that his original removal order was infirm because he had been removed in absentia without having received notice of the hearing, and also because theorder to report for removal was affirmatively misleading. The district court rejected his first contention, that his failure to receive the notice of the time and place of the hearing invalidated the removal proceeding. We do not need to address this issue. The court agreed with Arias-Ordonez, however, that the order to report was affirmatively misleading because it told him that he had no administrative remedies when in fact he did. The court ruled that the misinformation invalidated the original removal.

The government then attempted to support the illegal reentry charge by relying on the summary reinstatements of the original order, but the district court held that the government could not use summary reinstatements of an invalid removal to sustain a prosecution for illegal reentry. In ordering the indictment dismissed, the court explained that when a due process violation has occurred, "you can't take a reinstatement and launder the original deportation" because the reinstatement "bears the same taint as the original deportation." The government now appeals pursuant to 18 U.S.C. § 3731.

We review de novo a district court's ruling on a motion to dismiss an indictment for illegal reentry, where the defendant has asserted a denial of due process in the underlying removal. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004).

DISCUSSION

I. Constitutional and Statutory Background

The Supreme Court in 1987 ruled that as a matter of due process, a defendant must be permitted to bring a collateral challenge to a prior deportation that underlies a criminal charge, where the prior deportation proceeding effectively elimi nated the right of the alien to obtain judicial review. See United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). The petitioners in Mendoza-Lopez had been deported after a group hearing, in which the Immigration Judge ("IJ") had failed to explain the availability of relief from deportation or the aliens' right to appeal. Id. at 830, 83940, 107 S.Ct. 2148. After being deported the aliens reentered the United States, and were apprehended and charged with illegal reentry under § 1326. Id. at 830-31, 107 S.Ct. 2148. The illegal reentry statute at that time did not expressly allow for collateral attack of a prior deportation order. Id. at 837, 107 S.Ct. 2148. The Court therefore reached the constitutional issue and held that due process does not permit the imposition of criminal sanctions unless the underlying civil order is subject to meaningful judicial review. Id, at 837-39, 107 S.Ct. 2148.

Congress codified that principle at 8 U.S.C. § 1326(d). The statute now provides for collateral attack of the removal if "(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). Under our case law, a predicate removal ordersatisfies the condition of being "fundamentally unfair" for purposes of § 1326(d)(3) when the deportation proceeding violated the alien's due process rights and the alien suffered prejudice as a result. UbaldoFigueroa, 364 F.3d at 1048. We therefore address these statutory and constitutional requirements with respect to the original removal and the subsequent reinstatements.

H. The Original Removal

We have long held there is a violation of due process when the government affirmatively misleads an alien as to the relief available to him. See Walters v. Reno, 145 F.3d 1032, 1043 (9th Cir.1998) (holding that giving "confusing" and "affirmatively misleading" forms to immigrants charged with document fraud deprived the recipients of their due process rights); see also Ubaldo-Figueroa, 364 F.3d at 1050 (due process violated where IJ failed to inform alien of his eligibility for relief under § 212(c)); United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir.2004) (due process violated where IJ failed to inform alien of eligibility for voluntary departure). Our circuit law is also well established that § 1326(d)'s requirements of exhaustion and deprivation of judicial review are satisfied when the government misinforms an alien that he is ineligible for relief. See, e.g., United States v. PallaresGalan, 359 F.3d 1088, 1098 (9th Cir.2004); Ortiz-Lopez, 385 F.3d at 1204 n. 2; Ubaldo-Figueroa, 364 F.3d at 1050.

We therefore first consider whether the order to report misinformed AriasOrdonez about his eligibility for possible relief. The...