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.
The opinion of the court was delivered by: Schroeder, Circuit Judge
Argued and Submitted October 9, 2009-San Francisco, California.
Before: Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Milton I. Shadur,*fn1 District Judge.
This government appeal arises in the context of an apparently routine prosecution for re-entry 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 re-entry. We think not and affirm the district court's dismissal of the indictment.
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 controlled substance 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)(ii).
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. 2009) ("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 re-entry 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 "funda-mentally 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 the order 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 ...