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United States v. Ramirez-Diaz

United States District Court, D. Oregon, Eugene Division

January 8, 2019



          Ann Aiken United States District Judge.

         Defendant Vincente Ramirez-Diaz has been indicted on one count of illegal reentry under 8 U.S.C. § 1326. This charge is predicated on a 2011 removal order issued pursuant to an expedited removal proceeding. During that proceeding, an immigration official considered defendant's case, determined that he was inadmissible to the United States, and entered a removal order. Defendant was then removed from the United States. In 2017, defendant was found in the District of Oregon, in violation of the prior removal order, and this indictment issued. Presently before the Court is defendant's motion to dismiss the indictment, (doc. 25) For the reasons set forth herein, the Court holds that the 2011 removal order failed to comply with the requirements of due process and cannot be used as a predicate offense to sustain the present § 1326 charge. Accordingly, defendant's motion to dismiss (doc. 25) is granted.


         Once an individual enters the United States, she or he is entitled to the protections of the Due Process Clause. Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 212 (1953) ("It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to . . . due process of law.") This includes the right to "some meaningful review" of an administrative proceeding that results in a removal order used as a predicate for an illegal reentry offense. United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Ch. 2011).

         To be convicted of illegal reentry, the Government must establish that the defendant "left the United States under order of exclusion, deportation, or removal, and then illegally reentered." United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (citing Barajas-Alvarado, 655 F.3d at 1079). A defendant may collaterally challenge the underlying removal order. 8 U.S.C. § 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To successfully challenge the underlying removal order, the defendant must demonstrate that (1) he exhausted the available administrative remedies, (2) the deportation proceedings deprived the alien the chance for judicial review, and (3) that the removal order was "fundamentally unfair." 8 U.S.C. § 1326(d). A removal order is fundamentally unfair if the defendant's due process rights were violated during the removal proceedings, and she was prejudiced by the violations. United States v. Garcia-Santana, 774 F.3d 528, 532-33 (9th Cir. 2014).

         In this case, an immigration officer issued the underlying removal order after an expedited removal proceeding pursuant to 8 U.S.C. § 1225(b)(1). Expedited removal proceedings are permitted for individuals who are discovered in the United States within 100 miles of the border, who have been in the United States for less than 14 days, and who were not legally admitted to the United States. 8 U.S.C. § 1225(b)(1)(A)(i). All individuals in expedited removal proceedings are considered applicants for admission into the United States, even if they are physically present within the country. 8 U.S.C. § 1225(a)(1). Expedited removal proceedings are carried out by an immigration official who makes an admissibility determination and, if applicable, enters removal orders. Id.

         The required procedure for expedited removal proceedings is set out by regulation. 8 C.F.R. § 235.3(b)(2)(i). These regulations require that when the officer makes her admissibility finding, she must create a record of the proceeding that includes the facts of the case and sworn statements from the alien. Id. "The regulations governing expedited removal proceedings codify, in mandatory terms, the immigration officer's duty to inform the alien of the charge against him and to allow the alien to review the sworn statement prepared in his name." Raya-Vaca, 771 F.3d at 1204. The regulation requires that the alien be served with the form outlining the charges against him, Form 1-860, and that he sign the reverse of the form acknowledging receipt. 8 C.F.R. § 235.3(b)(2)(i).

         While expedited removal orders are not subject to administrative appeal, applicants may be eligible for relief from removal. 8 U.S.C. § 1225(b)(1)(A)(i). This relief is called "withdrawal of application for admission" whereby an individual is permitted to withdraw his application for admission and depart the United States voluntarily without a formal removal order or other immigration consequences. 8 C.F.R. § 1235.4.


         In this case, defendant is a long-term resident of the United States who has lived and worked in this country since he was 13. The current illegal reentry indictment is predicated on a removal order from 2011. This is defendant's only removal order.

         Pursuant to 8 U.S.C. § 1326(d), defendant challenges the 2011 removal order. The first two requirements for collaterally challenging the removal order are satisfied here. The Ninth Circuit has held that when a defendant's removal order arises from an expedited removal proceeding, he has exhausted all administrative remedies and was deprived of the opportunity for judicial review. Raya-Vaca, 771 F.3d at 1201 ("As the district court recognized and as the Government concedes, the statute governing expedited removal proceedings afforded Raya-Vaca no opportunity for administrative or judicial review, We therefore conclude that Raya-Vaca exhausted all available administrative remedies and was deprived of the opportunity for judicial review.") (internal citations omitted). Defendant's 2011 removal order also arose from expedited review proceedings governed by the same statute at issue in Raya-Vaca. Accordingly, I find that he too exhausted all available administrative remedies and was deprived of the opportunity for judicial review of that order.

         Next, to successfully challenge the 2011 order, defendant must establish that the removal order was "fundamentally unfair" meaning that the proceedings producing that order violated his due process rights and that he was prejudiced by the due process violation. Garcia-Santana, 774 F.3d 528, 532-33.

         Because he had entered the United States, there is no question that defendant was entitled to the protection of the Due Process Clause during his expedited removal proceedings. Raya-Vaca, 771 F.3d at 1202-03; Mezei, 345 U.S. at 212. While recognizing that not all regulations protect fundamental rights, the Ninth Circuit has held that the regulation governing expedited removal proceedings, 8 C.F.R. 235.3(b), does protect due constitutional due process rights. Raya-Vaca at 1204. This requires, at minimum, notice and the opportunity to respond to charges. Id. (citing Cleveland bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1945)). Defendant argues that his right to due process was violated when the immigration official failed to follow the regulatory requirements set out in 8 C.F.R § 235.3(b)(2)(i). Mot to Dismiss, at 5-6.

         During an expedited removal proceeding, the immigration officer makes an admissibility finding. Id. When making a finding of inadmissibility, the immigration official must create a record of the facts including statements by the alien. 8 C.F.R. § 235.3(b)[1], Relevant to this case, the officer "shall advise the alien of the charges against him or her on Form 1-860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in a sworn statement." Id. Once the official has received supervisory approval for the inadmissibility finding, "the ...

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