United States v. De la Mora-Cobian, No. 20-30187 (9th Cir. 2021)
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Cobian first entered the U.S. in 1999. In 2004, he was returned to Mexico after being convicted of DUI. In 2016, Cobian, with his wife and children, presented himself to seek asylum. Cobian was separated from his family and given Notice of Expedited Removal. He sought asylum. Officers provided him with English and Spanish explanations of the credible fear interview process, detention protocols, his rights, and the consequences of removal. Cobian explained that he had been kidnapped for ransom in Mexico and was again being targeted; his captors, allegedly gang members, cut off his finger and sent it to his wife. The asylum officer ruled against Cobian and explained the right to appeal. Cobian declined because he did not want to remain in detention, unable to contact his family. Cobian was deported to Mexico but, in 2018, attempted reentry, and was deported.
In 2019, Cobian was again found in the U.S. and was charged with illegal reentry, 8 U.S.C. 1326. Cobian argued that the predicate expedited removal order was entered in violation of his due process rights and even if he waived his right to appeal the asylum claim, his waiver was not considered and intelligent. The Ninth Circuit affirmed the denial of his motion to dismiss. Administrative remedies must be exhausted before an order of removal can be collaterally challenged in a subsequent criminal prosecution for re-entry. Cobian made a considered and intelligent decision to waive his right to appeal the negative credible fear finding.
Court Description: Criminal. The panel affirmed the district court’s order denying the defendant’s motion to dismiss his indictment for illegal reentry under 8 U.S.C. § 1326 on the basis that he was precluded from collaterally attacking the underlying order of removal. The panel held under the statutory framework enacted by Congress that an alien who raises a claim for asylum during expedited removal proceedings is provided with an administrative remedy that must be exhausted before that order of removal can be collaterally challenged in a subsequent criminal prosecution for reentering the United States. The panel held that the facts support the district court’s ruling that the defendant made a considered and intelligent decision to waive his right to appeal an asylum officer’s negative credible fear finding. The panel concluded that because the defendant validly waived his right to appeal, he is precluded from collaterally attacking the expedited order of removal as a result of his failure to exhaust his administrative remedies at the time. UNITED STATES V. DE LA MORA-COBIAN 3
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