United States v. Raya-Vaca, No. 13-50129 (9th Cir. 2014)
Annotate this CaseDefendant conditionally plead guilty to illegal reentry after having been removed and subsequently appealed his conviction, contending that his expedited removal proceedings did not comport with due process where, among other things, the immigration officer who entered the removal order failed to provide defendant with notice of the charge against him and an opportunity to respond. The court concluded that defendant exhausted all available administrative remedies and was deprived of the opportunity for judicial review; the Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause; in this case, there is no dispute that defendant had entered the United States before he was apprehended and he was entitled to expedited removal proceedings that conformed to the dictates of due process; any failure to inform defendant of the charge against him and to provide him the opportunity to review the sworn statements constituted a violation of his due process rights; defendant's due process rights to notice and an opportunity to respond were violated during his expedited removal proceedings; the court rejected the Government's argument that it should have been obvious to defendant that he was scrutinized for his presence in the United States without valid documentation; and, because defendant could plausibly been granted relief in the form of withdrawal of his application for admission, his removal order is invalid and cannot serve as the predicate for his conviction. Accordingly, the court reversed defendant's motion to dismiss the information and his conviction.
Court Description: Criminal Law. The panel reversed the district court’s denial of a motion to dismiss an information charging, and the defendant’s conviction of, illegal reentry after having been removed in violation of 8 U.S.C. § 1326, and remanded. Given the Supreme Court’s repeated pronouncement that the Due Process Clause applies to all who have entered the United States – legally or not – and given the clear fact of the defendant’s entry, the panel held that the defendant was entitled to expedited removal proceedings that conformed to the dictates of due process. The panel held that an immigration officer’s failure, during the defendant’s expedited removal proceedings, to advise the defendant of the charge against him and to permit him to review the sworn statement prepared by the officer violated the defendant’s due process rights to notice and an opportunity to respond. The panel held that the defendant suffered prejudice as a result of the entry of the removal order because he could plausibly have been granted relief in the form of withdrawal of his application for admission. The panel concluded that the removal order was, accordingly, fundamentally unfair and cannot serve as the predicate for his conviction under § 1326.
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