Argued and Submitted, Pasadena, California: February
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-02734-H-1. Marilyn L. Huff, District Judge, Presiding.
Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued) and Bruce R. Castetter, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Harry Pregerson, Michael R. Murphy[*], and Marsha S. Berzon, Circuit Judges. Opinion by Judge Berzon.
BERZON, Circuit Judge:
Jorge Aguilera-Rios (" Aguilera" ), a citizen of Mexico, was convicted of a California firearms offense, removed from the United States on the basis of that conviction, and, when he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. § 1326. He contends that his prior removal order was invalid because his conviction under California Penal Code § 12021(c)(1) was not a categorical match for the federal firearms aggravated felony. We agree that he was not originally removable as charged, and so could not be
convicted of illegal reentry. We therefore reverse the judgment of conviction.
Aguilera entered the United States without inspection at the age of five to live with his parents, who were lawful permanent residents. He became a lawful permanent resident in 2000. Two years later, he was convicted of unlawful firearms possession in violation of California Penal Code § 12021(c)(1).
In 2005, Aguilera was served with a Notice to Appear, alleging that he had been convicted of a crime involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), and an aggravated felony firearms offense, 8 U.S.C. § 1227(a)(2)(C), and so was subject to removal. One week later, Aguilera appeared before an Immigration Judge (" IJ" ). He admitted that he had been convicted of unlawful firearms activity in violation of California Penal Code § 12021(c)(1), but did not concede removability. The IJ nonetheless held Aguilera " subject to removal as charged," and denied him any relief from removal. Aguilera was removed to Mexico.
Six years later, Aguilera was charged with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Aguilera moved to dismiss the indictment under § 1326(d), arguing that, during the 2005 removal proceedings, the IJ did not meaningfully advise him of his opportunity to apply for voluntary departure. The district court denied the motion, and Aguilera was found guilty of illegal reentry. Aguilera was sentenced to time served, and has since been removed to Mexico.
On April 23, 2013, after Aguilera filed his opening brief in this case, the Supreme Court issued its decision in Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), concerning application of the categorical approach in immigration cases. Although that case involved a marijuana conviction, the majority opinion addressed an argument by the Solicitor General that, under the Court's analysis, " a conviction under any state firearms law that lacks . . . an exception [for antique firearms present in the federal firearms statute] will be deemed to fail the categorical inquiry." Id. at 1693. Aguilera moved to file a substitute opening brief in this case, arguing that, after Moncrieffe, his 2005 removal order was invalid for a second reason (in addition to the previously asserted due process violation): Aguilera was never deportable as charged because the California statute of conviction lacked an antique firearms exception. We accepted the substitute brief, and the government responded to Aguilera's arguments in its answering brief.
We review Aguilera's collateral attack on his 2005 removal order de novo. See United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc).
" A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has a due process right to bring a collateral attack challenging the validity of his underlying deportation order because it serves as a predicate element of his conviction." United States v. Melendez-Castro, 671 F.3d 950, 953 (9th Cir. 2012) (per curiam) (citation omitted). Section 1326(d) expressly provides for such collateral attacks on an underlying deportation order, but establishes limits on them. A defendant must demonstrate that: (1) he exhausted all administrative remedies available to appeal his prior removal order; (2) the prior
removal proceedings " improperly deprived [him] of the opportunity for judicial review; " and (3) the entry of the prior removal order was " fundamentally unfair." 8 U.S.C. § 1326(d).
The government recognizes that the first two elements of § 1326(d) have been met. It maintains, however, that Aguilera " cannot meet the last element, i.e., 'fundamental unfairness.'"
" An underlying removal order is 'fundamentally unfair' if (1) an alien's 'due process rights were violated by defects in the underlying deportation proceeding,' and (2) 'he suffered prejudice as a result of the defects.'" United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (citation omitted). If Aguilera " was removed when he should not have been," his 2005 removal was fundamentally unfair, and he may not ...