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United States v. Ochoa-Oregel

United States District Court, S.D. California

July 22, 2016



          Hon. Roger T. Benitez, United States District Judge.

         Now before the Court is Defendant’s Motion to Dismiss the Indictment. Upon review, this Court finds a valid underlying removal order. Therefore, the motion to dismiss the indictment is denied.

         I. BACKGROUND

         Ochoa-Oregel is charged with the crime of Attempted Reentry of a Removed Alien in violation of 8 U.S.C. § 1326(a) and (b). From the record before the Court, it appears that there is no dispute as to the following salient facts.

         Ochoa-Oregel is a citizen of Mexico. He originally had lawful permanent resident status (“LPR”). In 2008, he was ordered removed after a formal hearing at which he was represented by counsel but failed to personally appear. He was physically removed in early 2010. In 2011, he returned to the United States and presented his LPR card to an inspector at a port of entry. He was ordered removed the following day in an expedited removal proceeding because he had lost his LPR status as a result of the 2008 final order. Following these two separate removals, on March 15, 2016, he was allegedly arrested in the United States in an undeveloped area north of the California-Mexico border and is now charged with attempted reentry after having been previously removed.


         Ochoa-Oregel has moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). He argues that his removal order in 2008 was fundamentally unfair. Although the 2008 removal order was valid at the time it was entered, it might not be under the analytical approach required today. But it does not matter. The 2011 removal order is independent of the 2008 order and provides a valid basis for the current criminal charge.[1] Turning then to the more recent removal, he argues that his 2011 removal order was also fundamentally unfair because he was denied rights and remedies afforded persons with LPR status. Finally, he argues that the 2011 expedited proceeding denied him due process and that it is plausible he would have been given relief in the form of withdrawal of application for admission.

         Assuming for the sake of argument that the 2008 proceedings would be deemed fundamentally unfair under today’s categorical approach, the vitality of the current prosecution rests on the validity of the 2011 removal order. Defendant’s arguments attacking the 2011 order are based on two unavailing arguments. Defendant’s first argument is built entirely upon the supposition that he continued to enjoy LPR status after the 2008 removal order due to alleged flaws in that proceeding. Case law and regulations do not support that claim. Defendant’s second argument is based upon alleged deprivations of due process rights during the expedited removal. But that argument fails to distinguish between due process rights enjoyed by aliens within the United States, and non-LPR aliens who have not yet entered the United States. In 2011, Defendant had not entered the United States but had only approached the port of entry. As such, he did not enjoy the same rights guaranteed by the Due Process Clause, enjoyed by LPRs residing in the United States. Consequently, he cannot make out a case that he was denied rights he did not have and he cannot succeed in his claim that the expedited removal proceeding was deficient.

         A. Collateral Attack Under § 1326(d)

         An individual charged with illegal reentry under 8 U.S.C. § 1326 has a right to challenge the removal that underlies the criminal reentry charge. The criminal charge may be dismissed if the three prongs of §1326(d) are satisfied.

Section 1326(d) . . . . authorizes collateral attack on three conditions: (1) that the defendant exhausted available administrative remedies; (2) that the removal proceedings deprived the alien of the opportunity for judicial review; and (3) that the removal order was fundamentally unfair. Removal is fundamentally unfair, in turn, if (1) a defendant’s due process rights were violated by defects in his underlying removal proceeding, and (2) he suffered prejudice as a result of the defects.

United States v. Garcia-Santana, 774 F.3d 528, 532-33 (9th Cir. 2014) (internal quotation marks and citations omitted). The 2011 removal documents indicate that Ochoa-Oregel was removed through an expedited removal proceeding sanctioned by 8 U.S.C. §1225(b)(1). Section 1225(b)(1) provides for the expedited removal of aliens who are not legal permanent residents. Ochoa-Oregel’s 2011 removal order, which he now collaterally attacks, was the product of the expedited removal procedure. (See Def.’s Mot. to Dismiss, Exhs. L); c.f. United States v. Hernandez-Vermudez, 356 F.3d 1011, 1013-1015 (9th Cir. 2004) (holding expedited administrative removal set out in §1228(b) applies to aliens who were not lawfully admitted for permanent residence or paroled and who entered the United States without inspection). Because Ochoa-Oregel’s 2011 removal was an expedited removal, Ninth Circuit precedent compels the conclusion that administrative review was exhausted and judicial review was deprived.[2] Nevertheless, the defendant still bears the burden of establishing a deprivation of due process rights and legal prejudice. He has satisfied the first and second prongs.

         “To satisfy the third prong - that the order was fundamentally unfair - the defendant bears the burden of establishing both that the deportation proceeding violated his due process rights and that the violation caused prejudice.” United States v. Raya-Vaca, 771 F.3d 1195, 1201-02 (9th Cir. 2014) (citation omitted) (emphasis added). In the case at bar, the Defendant has not carried his burden.

         Ochoa-Oregel contends he suffered prejudice in 2011 because it is plausible that he would have been granted relief in the form of withdrawal of application for admission, had he requested the relief. But he did not request relief. (Mot. to Dismiss, Exhibit M.) And even now he does not state that he would have requested such relief. (Id.) Nevertheless, he argues that it is plausible that he would have been granted such relief.

         B. “Some Meaningful Review”

         Congress intended that expedited removal orders would not be subject to collateral attack in a §1326 case. For expedited removal orders, Congress specifically eliminated from federal court jurisdiction the authority to hear a §1326(d) motion. See 8 U.S.C. §1225(b)(1)(D) (a court “shall not have jurisdiction to hear any claim attacking the validity” of an expedited removal order in a §1326 prosecution). Nevertheless, in this circuit a defendant is permitted at least “some meaningful review” of an expedited removal order when the order is used as an element for a reentry offense. United States v. Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011) (holding §1225(b)(1)(D) unconstitutional “to the extent it prohibits ‘some meaningful review’ in a ...

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