United States v. Ramirez-Cortinas, No. 19-50182 (5th Cir. 2019)
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The Fifth Circuit reversed and remanded the district court's dismissal of a 2018 indictment charging defendant with illegal reentry in violation of 8 U.S.C. 1326. The court agreed with the government's contention that the district court erred in sustaining defendant's collateral attack on his underlying 2013 deportation order and dismissing the 2018 illegal-reentry indictment.
In this case, the district court found that the IJ and the BIA erroneously classified bail jumping as an aggravated felony and the error led the IJ not to consider defendant's claims for asylum and withholding of removal. The court disagreed with the district court for two reasons: first, the district court diluted the actual prejudice standard; and second, applying the correct actual-prejudice standard, the record foreclosed any notion that defendant likely would have escaped deportation either through asylum or withholding of removal. The court saw nothing in the record indicating that defendant was likely eligible for asylum or withholding of removal. Therefore, even assuming the IJ and BIA erred in classifying defendant's bail jumping conviction as an aggravated felony, defendant still could not show actual prejudice under section 1326(d).
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