USA V. PRAXEDIS PORTILLO-GONZALEZ, No. 21-10260 (9th Cir. 2023)
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Defendant appealed from his conviction after a conditional plea of guilty to a single count of unlawful reentry by a previously removed alien. Defendant contended that his indictment should have been dismissed on the ground that the 2000 removal order underlying his prior removals was invalid due to an error by the immigration judge (“IJ”), at his removal hearing, as to whether he was eligible for voluntary departure.
The Ninth Circuit affirmed. The panel held that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well. Even assuming arguendo that the IJ’s incorrect statement about Defendant’s eligibility for voluntary departure violated due process and rendered his removal proceedings “fundamentally unfair,” that would not automatically or “effectively” satisfy the requirement in 8 U.S.C. Section 1326(d)(1) that the alien exhausted available administrative remedies, or the requirement in 8 U.S.C. Section 1326(d)(2) that the deportation proceedings improperly deprived the alien of an opportunity for judicial review. The panel therefore concluded that Defendant remains subject to Section 1326(d)’s general rule that he may not challenge the validity of his predicate removal order.
Court Description: Criminal Law. The panel affirmed the district court’s judgment in a case in which Praxedis Saul Portillo-Gonzalez entered a conditional guilty plea to unlawful reentry by a previously removed alien, in violation of 8 U.S.C. § 1326, after the district court denied his motion under 8 U.S.C. § 1326(d) to dismiss the indictment.
Portillo-Gonzalez contended that his indictment should have been dismissed on the ground that the removal order underlying his unlawful reentry charge was invalid due to an error by the immigration judge (“IJ”), at his removal hearing, as to whether he was eligible for voluntary departure. Portillo-Gonzalez argued that, under controlling Ninth Circuit precedent, the IJ’s error sufficed to establish that he satisfied all of the § 1326(d) requirements for collaterally challenging a removal order in the context of a § 1326 prosecution. While he acknowledged that the Supreme Court’s decision in United States v. Palomar- Santiago, 141 S. Ct. 1615 (2021), abrogated Ninth Circuit caselaw holding that such IJ errors may excuse an alien from satisfying certain of § 1326(d)’s requirements, Portillo- Gonzalez argued that it left undisturbed this court’s related caselaw holding that such errors may serve to automatically establish that those requirements have been met.
The panel held that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well. Even assuming arguendo that the IJ’s incorrect statement about Portillo-Gonzalez’s eligibility for voluntary departure violated due process and rendered his removal proceedings “fundamentally unfair” under 8 U.S.C. § 1326(d)(3), that would not automatically or “effectively” satisfy the requirement in 8 U.S.C. § 1326(d)(1) that the alien exhausted available administrative remedies, or the requirement in 8 U.S.C. § 1326(d)(2) that the deportation proceedings improperly deprived the alien of an opportunity for judicial review. The panel therefore concluded that Portillo- Gonzalez remains subject to § 1326(d)’s general rule that he may not challenge the validity of his predicate removal order.
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