United States v. Ochoa-Oregel, No. 16-50413 (9th Cir. 2018)Annotate this Case
The Ninth Circuit reversed defendant's conviction for unlawful reentry into the United States in violation of 8 U.S.C. 1326. The panel held that defendant's prior 2008 and 2011 removals were fundamentally unfair and thus could not serve as a predicate removal for purposes of section 1326.
The panel held that because the 2008 removal proceeding was in absentia, defendant satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal. Furthermore, it was error to remove defendant for a crime of domestic violence under Immigration and Nationality Act 237(a)(2)(E)(i) based on his California battery conviction because circuit precedent established that California battery was not a categorical crime of violence. The panel also held that the due process defects in the 2008
removal proceeding infected the 2011 expedited removal for presenting invalid entry documents. In this case, the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents.
The court issued a subsequent related opinion or order on September 14, 2018.