United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge.
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.
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).
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).
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.
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).
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.
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.
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.
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.
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.
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), 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 ...