In United States v. Ochoa-Oregal last week, the Ninth Circuit reversed the defendant’s unlawful-reentry conviction because his prior removal orders (the latter being an expedited removal order contingent upon the first) were deemed “fundamentally unfair” and as such, could not serve as the requisite predicate removal order for the offense.
In 2008, at the time he was first ordered removed based on a California battery conviction, Mr. Ochoa-Oregal was a legal permanent resident (LPR). The removal order was entered in absentia, however, which deprived Mr. Ochoa-Oregal of opportunity to exhaust or seek judicial review. What’s more, 2008 Circuit precedent established that a California battery conviction was not a categorical crime of violence. Hence, the 2008 removal order was erroneous and could not serve as a predicate for an unlawful-reentry conviction.
Neither could the latter expedited removal order in 2011 serve as a predicate for the unlawful reentry conviction. The Ninth Circuit determined that expedited removal order was “infect[ed]” and thereby invalidated by the erroneous 2008 removal order; Mr. Ochoa-Oregal had been removed in 2011 for presenting invalid entry documents, but if Mr. Ochoa-Oregel was a lawful permanent resident, then his entry documents were not invalid.
Notably, the Ninth Circuit rejected the government’s argument that Mr. Ochoa-Oregal could not demonstrate prejudice despite the erroneous removal order because he was an aggravated felon who could have been removed anyway, and he would have been denied discretionary relief. The Court held that “even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.” In so finding, the Ninth Circuit cogently concluded that the “important legal protections of lawful permanent resident status do not hang on the whims of government officials, they stand on much more secure footing of lawful due process.”