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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

FRANCISCO CHIPRES-MADRIZ,

Defendant. /

No. CR 09-00676 MHP

MEMORANDUM & ORDER

Re: Defendant Chipres-Madriz’s Motion to

Dismiss the Indictment 

Defendant Francisco Chipres-Madriz (“Chipres-Madriz”) is charged with one count of

violating 8 U.S.C. section 1326(a), illegal reentry after removal. Chipres-Madriz now moves to

dismiss the indictment filed against him by collaterally challenging, pursuant to 8 U.S.C. section

1326(d), the validity of the 1999 removal order and the nine subsequent reinstatements of that

removal order that function as the predicates for his prosecution under section 1326(a). Having

considered the arguments of the parties and for the reasons stated below, the court enters the

following memorandum and order. 

BACKGROUND

Chipres-Madriz, a native and citizen of Mexico, entered the United States at San Ysidro,

California, in 1996 without inspection. Docket No. 20 (Lucas Dec.), Exh. B (Transcript of Removal

Hearing)1

. In early-November 1999, Chipres-Madriz was in custody in the San Francisco County

jail after having been arrested for sale of a controlled substance. Docket No. 15 (Falk Dec.), Exh. D

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(Record of Deportable Alien). On November 4, 1999, the then Immigration and Naturalization

Service (“INS”), which is now called Immigration and Customs Enforcement (“ICE”), issued a

detainer for Chipres-Madriz. Falk Dec., Exh. C (Immigration Detainer). Immigration authorities

interviewed him on that day, and determined that he was in the United States illegally. See Record

of Deportable Alien. Although the state criminal charges against Chipres-Madriz were ultimately

dismissed, Chipres-Madriz was subsequently transferred into the custody of the INS. Id.; Falk Dec.,

Exh. E (Transfer Form). On November 8, 1999, INS authorities read Chipres-Madriz his rights,

issued him a Notice to Appear and set bond at $20,000. See Falk Dec., Exh. F (Notification of

Rights); Falk Dec., Exh. G (Notice to Appear); Falk Dec., Exh. H (Bond Determination). 

On December 6, 1999, after Chipres-Madriz had been transferred to Eloy, Arizona, the INS

conducted his removal hearing. The hearing consisted of two segments relevant to the motion. In

the first, Immigration Judge John Zastrow (“IJ Zastrow”) conducted a group admonition session in

which he orally conveyed general information about the format and purpose of the removal

proceedings to a group of twelve aliens, including Chipres-Madriz.2

 Notably, IJ Zastrow did not

mention, let alone explain, that some of the aliens might be eligible for various forms of relief from

removal, including voluntary departure pursuant to 8 U.S.C. section 1229c(a)(1). See Transcript of

Removal Hearing at 1-4. 

Later, IJ Zastrow conducted the second relevant segment of the proceeding, ChipresMadriz’s individual removal hearing. Prompted by questioning from IJ Zastrow, Chipres-Madriz

acknowledged that he understood the charges against him, admitted that he was born in and was

presently a citizen of Mexico and conceded that he entered the United States without inspection. Id.

at 4. Chipres-Madriz also conceded that he was removable for his entry into the country. Id. at 5. IJ

Zastrow then determined that there were no convictions on Chipres-Madriz’s criminal record,

although Chipres-Madriz had been arrested regarding the since-dropped charges for sale of a

controlled substance. Id. IJ Zastrow and Chipres-Madriz then engaged in the following critical

colloquy:

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IJ Zastrow Sir, you don’t appear to have a criminal record. Umm, even

though I know about an arrest here in the United States, that

doesn’t count, it counts in Mexico but not here. Uh, do you

have $7.50 to pay your way out of the United States?

Chipres-Madriz No.

IJ Zastrow Ok, then I can’t let you go voluntarily. I find on the basis of

respondent’s admission . . . by clear and convincing evidence

that the respondent is unable to pay for passage out of the

United States. Therefore he becomes able to be deported and

the respondent be removed from the United States to Mexico

as charged in the notice to appear. Sir, do you wish to appeal

my decision, or will you accept my decision?

Chipres-Madriz I want to go to Mexico.

IJ Zastrow Then say “I accept your decision.”

Chipres- Madriz I accept it.

IJ Zastrow Ok, the government en acuerdo?

Gov’t Att’y Yes Your Honor.

IJ Zastrow Thank you. 

Id. at 5-6.

On that same day, IJ Zastrow issued a written order of removal for Chipres-Madriz. Falk

Dec., Exh. I (Order of Immigration Judge). The order does not indicate that Chipres-Madriz applied

for any relief from deportation, including voluntary departure, or that IJ Zastrow denied such an

application. Id. Chipres-Madriz was found ineligible for reentry for ten years and was actually

deported to Mexico that day. See Falk Dec., Exh. J (Warrant of Removal); Falk Dec., Exh. K

(Warning to Alien). 

Nowhere in the record of Chipres-Madriz’s removal is there any evidence that any

government official ever advised Chipres-Madriz of his eligibility for voluntary departure, or that

Chipres-Madriz waived his right to apply for pre-hearing voluntary departure. Further, ChipresMadriz, in his declaration in support of his motion, swears that no government official ever

explained to him the concept of pre-hearing voluntary departure or that he might be eligible for such

relief. See Falk Dec., Exh. L (Chipres-Madriz Dec.) ¶¶ 5. Chipres-Madriz states that had he been

informed of his potential eligibility for voluntary departure, he would have applied for it. Id. ¶ 9. 

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Although Chipres-Madriz did not have $7.50 on his person at the time of the removal hearing, he

claims that he could have obtained that amount by calling any of a number of acquaintances, id.,

including his friend, Joe Porcoro, who has declared that he would have immediately wired ChipresMadriz $10 if he had been asked, Falk Dec., Exh. M (Porcoro Dec.) ¶ 10. 

On nine occasions between the date of his removal and January 28, 2004, Chipres-Madriz

reentered the United States, was apprehended, and subsequently had his removal order reinstated by

the INS, pursuant to 8 U.S.C. section 1231(a)(5) and 8 C.F.R. section 241.8; Chipres-Madriz did not

object to any of the reinstatements. See Falk Dec., Exh. P (collecting nine Notices of

Intent/Decision to Reinstate Prior Order, dated August 7, 2002; September 14, 2002; February 26,

2003; March 21, 2003; March 29, 2003; April 2, 2003; April 18, 2003; May 8, 2003; and January

28, 2004). Further, according to the government,3

 on January 23, 2003, Chipres-Madriz was

convicted of a violation of California Health and Safety Code section 11352, for transportation/sale

of a controlled substance. Chipres-Madriz returned to the United States some time after January 28,

2004. The government claims that he was “arrested and/or convicted on several occasions” since

2004, but that it was not until his most recent arrest in February of 2009 that ICE discovered his

presence in the country. According to the government, Chipres-Madriz was not released into ICE’s

custody until September 2009. The government filed the one-count indictment against ChipresMadriz in this action on July 2, 2009. Docket No. 1. The indictment alleges Chipres-Madriz’s

removal order and nine reinstatements of that removal order as predicates for the prosecution of

Chipres-Madriz under U.S.C. section 1326(a). Indictment at 1.

DISCUSSION

Chipres-Madriz contends that the indictment filed against him must be dismissed because

neither his original removal order nor the subsequent reinstatements of the removal order can serve

as a lawful predicate for his prosecution under 8 U.S.C. section 1326(a). Specifically, he asserts that

(1) his 1999 removal order is invalid because IJ Zastrow prejudicially failed to “advise” or “inform”

him of his eligibility for voluntary departure, and (2) that the nine reinstatements of the 1999

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removal order are also invalid because they improperly reinstated the constitutionally infirm 1999

removal order. The court addresses each contention in turn.

I. Constitutionality of the 1999 Removal Order

A. Collateral Challenges to Removal Orders Used in Section 1326(a) Prosecutions

To convict an individual under 8 U.S.C. section 1326(a), the government must prove that (1)

the defendant is an alien (2) who “has been denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion, deportation, or removal is outstanding,” and

thereafter, (3) “enters, attempts to enter, or is at any time found in, the United States” without the

consent of the Attorney General. Immigration and Nationality Act (INA) § 240, 8 U.S.C. § 1326(a). 

Generally, federal district courts lack the power to review removal orders. See

Martinez-Rosas v. Gonzales, 424 F.3d 926, 928-29 (9th Cir. 2005). Judicial review of a prior

removal order is appropriate, however, “in any subsequent proceeding in which the result of the

deportation proceeding is used to establish an element of a criminal offense.” United States v.

Mendoza-Lopez, 481 U.S. 828, 839 (1987). “To succeed in such a collateral attack, the defendant

must demonstrate that: (1) he exhausted any administrative remedies available to him to appeal the

removal order, (2) the underlying proceedings at which the order was issued improperly deprived

him of the opportunity for judicial review, and (3) the entry of the order was fundamentally unfair.” 

United States v. Lopez-Velasquez, 568 F.3d 1139, 1142 (9th Cir. 2009) (citing 8 U.S.C. § 1326(d),

which has been recognized as codifying the holding in Mendoza-Lopez). A defendant can establish

the third prong—fundamental unfairness—by showing that “(1) [his] due process rights were

violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result

of the defects.” Id. at1142 (quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th

Cir. 2004)). 

B. Fundamental Unfairness

The court begins with the third prong of the collateral challenge standard—fundamental

unfairness. 

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1. Due Process

Within the Ninth Circuit, it is well-established that, where the record at a removal hearing

raises an inference that an alien is entitled to relief from deportation, an immigration judge’s failure

to “inform” or “advise” an alien of that eligibility constitutes a denial of the alien’s due process

rights. See United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003) (“The duty of

the IJ to inform an alien of his eligibility for relief is mandatory, and the failure to do so constitutes a

violation of the alien’s due process rights.”); United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th

Cir. 2001) (“Failure to . . . inform the alien [of eligibility for relief from deportation that is apparent

from the record] is a denial of due process that invalidates the underlying deportation proceeding.”);

United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) (“[W]here the record contains an

inference that the petitioner is eligible for relief from deportation, ‘the IJ must advise the alien of this

possibility and give him the opportunity to develop the issue.’ ”) (quoting Moran-Enriquez v. INS,

884 F.2d 420, 422-23 (9th Cir.1989)).

Here, Chipres-Madriz asserts that it was apparent from the record at his removal hearing that

he was eligible for relief in the form of pre-hearing or “fast track” voluntary departure, pursuant to 8

U.S.C. section 1229c(a)(1). Section 1229c(a)(1) allows an immigration judge, in his or her

discretion, to “permit an alien voluntarily to depart the United States at the alien's own expense . . . ,

in lieu of being subject to [formal removal] proceedings . . . or prior to the completion of such

proceedings, if the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B)

of this title.” 8 U.S.C. § 1229c(a)(1).4

 An immigration judge’s failure to “advise” or “inform” an

alien of his eligibility for voluntary departure is a violation of the alien’s due process rights. See

United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004) . 

The record of Chipres-Madriz’s removal hearing plainly contained an inference that ChipresMadriz was eligible for voluntary departure. In fact, it is apparent from the transcript that IJ Zastrow

recognized Chipres-Madriz’s potential eligibility. After inquiring of the government whether

Chipres-Madriz had “any kind of criminal record,” IJ Zastrow was informed that the only entry in

Chipres-Madriz’s criminal history was an arrest for possession/sale of a controlled substance. 

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Transcript of Removal Hearing at 5. IJ Zastrow then asked Chipres-Madriz whether he possessed

$7.50 “to pay [his] way out of the United States,” as section 1229c(a)(1) requires. Id. Further, after

Chipres-Madriz answered that he did not have $7.50, IJ Zastrow stated that he “can’t let [ChipresMadriz] go voluntarily.” Id.

The government asserts that by asking Chipres-Madriz whether he had $7.50 “to pay [his]

way out of the United States,” IJ Zastrow “offered” Chipres-Madriz voluntary departure, and

thereby discharged his constitutionally mandated duty. See Docket No. 24 (Gov’t Opp’n) at 13. In

support of this proposition, the government cites to United States v. Martinez-Valdez, 22 Fed. Appx.

507, 508 (9th Cir. 2009), an unpublished opinion from the Ninth Circuit. In Martinez-Valdez, the

alien-appellant claimed that “the IJ improperly conditioned [voluntary departure] on ability to pay

travel expenses.” Id. at *1. The Ninth Circuit held that the “terms of the voluntary departure statute

expressly limit such relief to those able to depart at their own expense,” and thus rejected the alien’s

claim that his removal proceedings failed to comport with due process. Id. Martinez-Valdez could

be read as holding that where an immigration judge asks an alien whether he can pay his way out of

the country, and he responds in the negative, the alien is not, in fact eligible for voluntary departure,

and no due process violation has occurred. 

The district court record in Martinez-Valdez, however, reveals a critical factual distinction

between that case and the instant matter: In Martinez-Valdez, the immigration judge explicitly

discussed the concept of voluntary departure at length during the group admonition portion of the

removal hearing. The immigration judge delivered the following explanation to all of the aliens

during the group admonitions:

If you are not eligible to remain in the United States you may be eligible for the relief

of voluntary departure. That means you would leave the US voluntarily as opposed

to being removed and deported. The benefits of being granted voluntary departure

are that you could return to the US legally in the future without certain time

restrictions. If you are ordered removed and deported from the United States, you

will be barred for a minimum of 10 years from returning legally. 

If you are eligible for voluntary departure, I will ask you if you have the amount of

money to pay your own way back to your own country. It is alleged the majority are

natives and citizens of Mexico. The cost to Mexico from this location by bus as I

have been told by government attorneys on past occasions is 7 dollars. I will [ask]

each of you if you have that amount of money.

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United States v. Martinez-Valdez, 07-cr-3401-L (S.D. Cal.), Docket No. 15-1 (Transcript of

Martinez-Valdez Removal Hearing) at 8-9. Because the immigration judge had fully explained the

concept of voluntary departure during the group admonition, when he asked Martinez-Lopez, “Do

you have the seven dollars for the voluntary departure fee,” Martinez-Lopez fully understood the

consequences of answering no. Put somewhat differently, because the immigration judge had

explained the requirements for eligibility for voluntary departure, he effectively “informed” and

“advised” Martinez-Lopez of his own eligibility for relief from deportation. 

In contrast, although IJ Zastrow asked a number of questions—about Chipres-Madriz’s

criminal history and finances—in order to determine whether Chipres-Madriz was eligible for relief

from deportation, IJ Zastrow never discussed voluntary departure generally or Chipres-Madriz’s

eligibility specifically in a manner capable of “advising” or “informing” Chipres-Madriz. Prior to

holding that Chipres-Madriz was deportable—that is, during both the group admonition and

Chipres-Madriz’s individual hearing—IJ Zastrow never uttered either the word “voluntary” or

“departure.” As a result, when IJ Zastrow asked Chipres-Madriz whether he possessed $7.50 to selffinance his departure from the country, Chipres-Madriz was forced to answer in a vacuum. Without

having been “informed” or “advised” of his eligibility for voluntary departure, he, unlike MartinezLopez, had no means of understanding the consequences of his answer.5

 The court holds that

Martinez-Lopez is inapplicable where, as here, an immigration judge fails entirely to provide an

alien with any information about the eligibility requirements and consequences of voluntary

departure. The information conveyed to Chipres-Madriz during the group and individual portions of

his removal hearing, which was devoid of any mention or explanation of voluntary departure, could

not possibly have “advised” or “informed” him of his eligibility for voluntary departure. 

Accordingly, the court holds that the removal proceedings violated Chipres-Madriz’s due process

rights.

2. Prejudice

In order to satisfy the prejudice prong of the “fundamental unfairness” analysis, an “alien

does not have to show that he actually would have been granted relief. Instead, he must only show

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that he had a ‘plausible’ ground for relief from deportation.” Ubaldo-Figueroa, 364 F.2d at 1050

(quoting Arrieta, 224 F.3d at 1079). Quite clearly, Chipres-Madriz had a “plausible ground” for

being granted voluntary departure; because he had never been convicted of an aggravated felony (or

any crime for that matter), had not engaged in terrorist activities and was capable of procuring $7.50,

he satisfied the requirements of section 1229c(a)(1). “Once [the defendant] makes a prima facie

showing of prejudice, the burden shifts to the government to demonstrate that the procedural

violation could not have changed the proceedings’ outcome.” United States v. Gonzalez-Valerio,

342 F.3d 1051, 1054 (9th Cir. 2003). The only evidence that the government cites to rebut ChipresMadriz’s prima facie showing is that he had been arrested on drug charges prior to his deportation

hearing. Those charges, however, had been dropped by the time Chipres-Madriz appeared before IJ

Zastrow. In fact, IJ Zastrow acknowledged that “even though I know about an arrest, here in the

United States that doesn’t count, it counts in Mexico, but not here.” Transcript of Removal Hearing

at 5. The record indicates that if Chipres-Madriz stated that he possessed $7.50, IJ Zastrow would

have granted him voluntary departure. 

In its moving papers and at the hearing on this motion, the government also argued that

because voluntary departure is discretionary, Chipres-Madriz could not possibly have been

prejudiced by IJ Zastrow’s failure to “advise” or “inform” Chipres-Madriz of his eligibility for such

relief. The government relies on the unpublished district court opinion in Martinez-Valdez, in which

Judge Lorenz in the Southern District of California, held that “even if Defendant established

statutory eligibility, there is no entitlement to voluntary departure because it is a privilege, not a

right, and the decision to grant voluntary departure rests in the discretion of the Attorney General.” 

Docket No. 25 (Frey Dec.), Exh. A (United States v. Martinez-Valdez, 07-cr-3401-L (S.D. Cal. May

14, 2008)). Accordingly, Judge Lorenz found that even if the immigration judge inadequately

“advised” and “informed” Martinez-Valdez of his eligibility for voluntary departure, MartinezValdez would not have been prejudiced by that failure. In relying on the district court opinion in

Martinez-Valdez, the government misstates the concept of prejudice as it applies to collateral

challenges under section 1326(d). To satisfy the prejudice prong of the analysis, the defendant must

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show only “a plausible grounds for relief from deportation.” Ubaldo-Figueroa, 364 F.2d at 1050. If

IJ Zastrow had “advised” or “informed” Chipres-Madriz of his prima facie eligibility for voluntary

departure, it is not only “plausible,” but probable that Chipres-Madriz would have answered the

question about his finances differently. And had Chipres-Madriz done so, it is not only “plausible,”

but probable, the IJ Zastrow would have granted Chipres-Madriz voluntary departure, as IJ Zastrow

did to the very next alien for which he conducted the individualized portion of the removal hearing. 

Simply because IJ Zastrow could have denied Chipres-Madriz voluntary departure does not make it

implausible that he would have granted him that relief. 

Accordingly, the government has not presented evidence to rebut Chipres-Madriz’s prima

facie showing of prejudice, and the court holds that Chipres-Madriz was, in fact, prejudiced by IJ

Zastrow’s failure to “inform” or “advise” Chipres-Madriz of his eligibility for voluntary departure. 

C. Exhaustion and Denial of Opportunity for Judicial Review

Having held that Chipres-Madriz removal hearing was fundamentally unfair, the court now

turns to the first two prongs of section 1326(d) analysis—exhaustion and denial of opportunity for

judicial review. Where a defendant establishes that his removal proceedings were fundamentally

unfair due to the prejudicial failure of an immigration judge to “inform” or “advise” the alien of

eligibility for relief from deportation, even if that defendant waived his appeal of the immigration

judge’s decision, it is essentially presumed that the alien “exhausted any administrative remedies

available to him to appeal the removal order” and was “deprived . . . of the opportunity for judicial

review.” 

An alien’s waiver of appeal is only valid if it is “considered and intelligent.” UbaldoFigueroa, 364 F.3d at 1049. If “the record contains an inference that the petitioner is eligible for

relief from deportation, but the IJ fails to advise an alien of this possibility and give him an

opportunity to develop the issue, [the Ninth Circuit does] not consider an alien’s waiver of his right

to appeal his deportation order to be considered and intelligent.” United States v. Pallares-Galan,

359 F.3d 1088, 1096 (9th Cir. 2004) (quotations marks and citations omitted). And where an alien’s

waiver is not “considered and intelligent,” he is exempted from satisfying the exhaustion of

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administrative remedies requirement. See Ortiz-Lopez, 385 F.3d at 1204 n.2 (holding that where

alien is not informed of eligibility for voluntary departure, “he would be ‘exempted from the

exhaustion requirement . . . because the IJ did not inform him that he was eligible for relief from

[removal]’ ” (quoting Ubaldo-Figueroa, 364 F.3d at 1049)). Similarly, “an alien who is not made

aware that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact

that he was not advised of that right,” and thus has no opportunity for judicial review. Arrieta, 224

F.3d at 1079; see Ortiz-Lopez, 385 F.3d 1202, 1204 n.2 (9th Cir. 2004) (holding that alien who was

not informed of his eligibility for voluntary departure was denied a meaningful opportunity for

judicial review).

As discussed above, IJ Zastrow failed to “inform” or “advise” Chipres-Madriz of his

eligibility for voluntary departure. In so doing, IJ Zastrow also deprived Chipres-Madriz of a

meaningful opportunity for judicial review and absolved Chipres-Madriz from having to satisfy the

administrative exhaustion requirement of section 1326(d).

Accordingly, the court holds that, with respect to Chipres-Madriz’s 1999 deportation, he has

satisfied the three elements for collaterally challenging the removal order. If the government’s

prosecution of Chipres-Madriz for illegal reentry after deportation was predicated solely on the 1999

removal order, the court would now be required, pursuant to section 1326(d) and United States v.

Mendoza-Lopez, 481 U.S. 828 (1987), to dismiss the indictment filed against Chipres-Madriz. Such

is not the case, however. The government contends that the nine subsequent reinstatements of

Chipres-Madriz’s removal order can also function as the legal foundation for the section 1326(a)

charge. The court must thus determine whether reinstatements of a constitutionally infirm removal

order can serve as the basis for prosecution under section 1326(a). 

II. Reinstatements of Constitutionally Flawed Removal Order as a Predicate for Prosecution

Under 8 U.S.C. section 1326(a)

Chipres-Madriz and the government have both presented sophisticated arguments regarding

whether a reinstatement of a constitutionally flawed removal order can serve as a predicate for

prosecution under 8 U.S.C. section 1326(a). Before delving into the substance of the parties’

contentions, the court provides some background about the reinstatement process and its relationship

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to formal removal proceedings. The Attorney General derives the authority to reinstate a prior order

of removal, as opposed to conducting an entirely new removal proceeding, from section 241 of the

INA, 8 U.S.C. § 1231(a)(5). That subsection, entitled “reinstatement of removal orders against

aliens illegally reentering,” provides that: 

[i]f the Attorney General finds that an alien has reentered the United States illegally

after having been removed or having departed voluntarily, under an order of removal,

the prior order of removal is reinstated from its original date and is not subject to

being reopened or reviewed, the alien is not eligible and may not apply for any relief

under this chapter, and the alien shall be removed under the prior order at any time

after the reentry. 

Id. Prior to 1997, reinstatement proceedings were conducted by immigration judges and were

applicable only to a small sub-group of previously removed aliens found to have reentered the

United States. In 1997, the reinstatement process was changed dramatically in two separate ways. 

First, the Attorney General promulgated a regulation permitting immigration officials, not

immigration judges, to conduct reinstatement proceedings. See 8 C.F.R. § 241.8. Pursuant to that

regulation, an immigration official can reinstate a prior order of removal if she confirms three

relevant facts: (1) “[w]hether the alien has been subject to a prior order of removal”; (2) “[t]he

identity of the alien, i.e., whether the alien is in fact an alien who was previously removed, or who

departed voluntarily while under an order of exclusion, deportation, or removal”; and (3) “[w]hether

the alien unlawfully reentered the United States.” Id. Second, Congress passed the Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA), which altered the reinstatement

provision of the INA such that it “applie[d] to all illegal reentrants, explicitly insulate[d] the

[predicate] removal orders from review, and generally foreclose[d] discretionary relief from the

terms of the reinstated order.” Fernandez-Vargas v. Gonzalez, 548 U.S. 30, 33 (2006). In MoralesIzquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2006), the Ninth Circuit, sitting en banc, explicitly

approved of the new reinstatement procedures, holding that it was within the Attorney General’s

power to promulgate 8 C.F.R. section 241.8 and that the new reinstatement procedures did not, on

their face, violate the Due Process Clause. See id. at 489-498. 

In order to determine whether a reinstatement of a constitutionally flawed removal order can

serve as a predicate for a section 1326(a) prosecution, the court must begin (and to some extent end)

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its analysis with Mendoza-Lopez. In Mendoza-Lopez, 481 U.S. 828, the Supreme Court explained

that its “cases establish that where a determination made in an administrative proceeding is to play a

critical role in the subsequent imposition of a criminal sanction, there must be some meaningful

review of the administrative proceeding.” Id. at 837-38. At the very minimum, “[t]his principle

means . . . that where the defects in an administrative proceeding foreclose judicial review of that

proceeding, an alternative means of obtaining judicial review must be made available before the

administrative order may be used to establish conclusively an element of a criminal offense.” Id. at

838. With respect to section 1326, the Supreme Court held that “[d]epriving an alien of the right to

have the disposition in a deportation hearing reviewed in a judicial forum requires . . . that review be

made available in any subsequent proceeding in which the result of the deportation proceeding is

used to establish an element of a criminal offense.” Id.; see also id. at 839 (“[A] collateral challenge

to the use of a deportation proceeding as an element of a criminal offense must be permitted where

the deportation proceeding effectively eliminates the right of the alien to obtain judicial review.”). 

The Ninth Circuit has recognized that Mendoza-Lopez directly resulted in Congress’ adoption of 8

U.S.C. section 1326(d), discussed above. See United States v. Estrada-Torres, 179 F.3d 776, 780

(9th Cir. 1999) overruled on other grounds by, United States v. Rivera-Sanchez, 247 F.3d 905 (9th

Cir. 2001).

Both in practice and on its face, the reinstatement process pursuant to 8 U.S.C. section

1231(a)(5) and 8 C.F.R. section 241.8 does not provide an alien with any means of judicial review. 

The government, in its moving papers, makes no meaningful attempt (nor could it) to refute this

characterization of the law. “Reinstatement—unlike INA § 240 first-instance removal—‘deprives

aliens of any relief, reopening, or review at the reinstatement stage.’ ” Morales-Izquierdo, 486 F.3d

at 491 (emphasis added) (quoting De Sandoval v. U.S. Att'y Gen., 440 F.3d 1276, 1281 (11th Cir.

2006)). In reinstatement proceedings, aliens cannot apply for any relief from reinstatement of the

removal, cannot challenge the validity of the underlying removal order, cannot be represented by

counsel and cannot place extrinsic evidence before the immigration officer. As discussed above, an

immigration official considers only three factors when deciding whether to reinstate an alien’s prior

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removal order: (1) the identity of the alien, (2) that the alien has previously been deported, and (3)

that the alien illegally reentered the United States. To be certain, 8 C.F.R. section 241.8 does

“provide[] significant procedural safeguards against erroneous reinstatements.” Morales-Izquierdo,

486 F.3d at 495.6 “Procedural safeguards,” however, are not the equivalent of the “meaningful”

judicial review that Mendoza-Lopez mandates be available “where a determination made in an

administrative proceeding is to play a critical role in the subsequent imposition of a criminal

sanction.” 481 U.S. at 837-38. 

Given the reinstatement proceeding’s streamlined nature, a reinstatement is functionally and

legally the “result” of the underlying removal proceeding. And pursuant to Mendoza-Lopez, “review

[must] be made available in any subsequent proceeding in which the result of the deportation

proceeding is used to establish an element of a criminal offense.” Id. at 838. Consequently, where

the government seeks to use a reinstatement as a predicate “removal” for purposes of a section

1326(a) prosecution, an alien must be provided with an opportunity to collaterally challenge the

underlying removal order that gave rise to the reinstatement. Further, the validity of the

reinstatement turns on the validity of the underlying removal order. 

A number of courts presented with cases similar to Chipres-Madriz’s have concluded that a

reinstatement founded upon a flawed removal order suffers from the same constitutional defect as

the removal order. In United States v. Charleswell, 456 F.3d 347 (3d Cir. 2006), a defendant facing

charges under section 1326(a) sought the right to challenge both his removal order and any

subsequent reinstatements of that order on the grounds that he was not advised or informed of

eligibility for relief from deportation at his removal hearing. As here, the government asserted that

the reinstatements could be collaterally challenged independently, but claimed that the removal

order’s validity was irrelevant to the reinstatement’s validity. The Third Circuit rejected the

government’s position, explaining that: 

Mendoza-Lopez did not constrict collateral challenges in the way that the government

advocates and we do not agree that, for purposes of a collateral challenge, we are

limited to reviewing only the 2001 Reinstatement. Rather, under Mendoza-Lopez, an

alien may mount, and we must hear, a challenge to the validity of both a

reinstatement order and the original deportation or removal order. To hold otherwise

would allow the government to avoid the consequences of a fundamentally unfair

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underlying deportation or removal proceeding simply by deleting it from the

indictment, in contravention of the teaching in Mendoza-Lopez that “where a

determination made in an administrative proceeding is to play a critical role in the

subsequent imposition of a criminal sanction, there must be some meaningful review

of the administrative proceeding.” Mendoza-Lopez, 481 U.S. at 837-38 (first

emphasis added). Reinstatement orders do not exist independent and separate from

their prior orders of removal but are instead explicitly premised on the prior order. 

See 8 U.S.C. § 1231(a)(5); Ramirez-Molina, 436 F.3d at 514. Consequently, the prior

order remains a critical element of the reinstatement and, more importantly, of the

illegal re-entry charge where that charge is premised on the reinstatement. Thus,

insofar as the underlying element of the § 1326 proceeding is the reinstatement order,

an alien may attempt to collaterally challenge both the original deportation order and

the reinstatement order. And, where either proceeding—the reinstatement or the

original—is so procedurally flawed that it “effectively eliminated the right of the

alien to obtain judicial review,” we may invalidate the criminal charges stemming

therefrom. See Mendoza-Lopez, 481 U.S. at 839. 

Charleswell, 456 F.3d at 352 (some citations omitted). 

Judge Alsup, of this court, reached the same conclusion in a somewhat different context. In

United States v. Lopez-Hernandez, No. CR 06-00645 WHA, 2007 WL 608111 (N.D. Cal. Feb. 23,

2007), Judge Alsup granted a defendant’s motion to dismiss the indictment which collaterally

challenged his underlying removal order and subsequent reinstatement. At the defendant’s 1997

removal hearing, the immigration judge erroneously informed the defendant that he was not eligible

for any form of relief from deportation. After appealing the immigration judge’s determination, the

defendant was deported in 1999. He returned to the United States in 2000 and was convicted of

felony possession of narcotics. In that same year and after serving his state prison term, he was

convicted of violating section 1326(a) and sentenced to 30 months in federal prison. After his prison

term was complete in 2004, ICE reinstated his 1997 removal order and expelled the defendant from

the country. Finally, in 2006, immigration officials located the defendant in the United States and

instituted a new section 1326(a) charge against him. The indictment predicated the defendant’s

violation of section 1326(a) on both his 1997 removal order and his 2004 reinstatement. In his

motion to dismiss, the defendant challenged only the validity of the 1997 removal order.

On the above set of facts, Judge Alsup concluded that the validity of the 2004 reinstatement

rose or fell on the validity of the 1997 reinstatement. Judge Alsup wrote that “the original

deportation order is a keystone of a Section 1326 prosecution. Due process requires consideration of

that order if a criminal defendant challenges its validity pursuant to 1326(d).” Id. at *7. 

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Accordingly, Judge Alsup held that “[f]or purposes of establishing a prior deportation, the

government may not rely solely on a reinstatement order if the underlying deportation did not

comport with due process. A defendant may challenge the underlying deportation order on due

process grounds.” Id. at *4. After determining that the defendant had satisfied the three elements of

section 1326(d), Judge Alsup dismissed the indictment. Id. at *14.

Judge Chesney, also of this court, dismissed a section 1326(a) indictment from the bench

under strikingly similar circumstances in United States v. Arias-Ordonez, 07-cr-00738-MMC (N.D.

Cal.) (Chesney, J.). In that case, in 2003, an immigration judge issued an order of removal for the

defendant in absentia; eventually, the defendant surrendered and was physically removed from the

country. On eight subsequent occasions, he returned to the country, was discovered by immigration

authorities, and had his 2003 removal order reinstated. Id., Docket No. 29 (United States’ Second

Supplemental Brief Opposing Defendant’s Motion to Dismiss) at 2-3. After the eighth

reinstatement, the defendant returned to the United States again, was apprehended by law

enforcement authorities and charged under section 1326(a). In the criminal proceedings, Judge

Chesney held that the defendant’s underlying 2003 removal order violated his due process rights

because he was not advised and informed of his eligibility for voluntary departure. Id., Docket No.

53 (Transcript of Proceedings, May 28, 2008) at 4-5. As a result of the holding, Judge Chesney

dismissed the entire indictment, concluding that the government “cannot take a tainted reinstatement

and essentially launder the . . . original deportation. [I]t bears the same taint as the original

deportation.” Id. at 6. 

At least two other district courts have also held that reinstatements “bear[] the same taint as

the original deportation.” See United States v. Gomez-Hernandez, No. CR-08-6005-FVS, 2008 WL

209876, at *6 (E.D. Wash. May 1, 2008) (“The Court finds that the reinstatement process is

unconstitutional as applied to the present case. Mendoza-Lopez established that a criminal defendant

must be permitted to collaterally attack a deportation order underlying the charges pending against

him or her if there was no opportunity for judicial review at the time of the original removal. The

reinstatement process does not permit review of the underlying deportation order. . . . Given that the

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May 11, 2006 removal order deprived the Defendant of due process of law, it would be a further

deprivation of due process to charge the Defendant with criminal conduct on the basis of subsequent

reinstatements.”); United States v. Barajas-Hernandez, No. CR 06-00283-TUC-CKJ (BPV), 2007

WL 2670150, at *3 (D. Ariz June 8, 2007) (“If Defendant's 1997 removal was invalid, then all that

follows, including any reinstatement of that removal, his federal conviction in 2000, his ‘second

removal,’ and the present prosecution, is an unjust legacy of that removal.”). Further, the Ninth

Circuit, albeit in an unpublished opinion, held that:

where the government relies on a reinstatement proceeding as the predicate

deportation or removal for a § 1326 prosecution, the alien maintains the limited right

under Mendoza-Lopez to show that the original proceeding was “so procedurally

flawed that it ‘effectively eliminate[d] the right of the alien to obtain judicial

review,’ ” and that the due process violation prejudiced him. [United States v.]

Alvarado-Delgado, 98 F.3d at 493 [9th Cir. 1996] (quoting Mendoza-Lopez, 481 U.S.

at 840). If the underlying proceeding violated due process as described in

Mendoza-Lopez and the alien was prejudiced by that deficiency, neither the

reinstatement proceeding nor the original proceeding, which was reinstated may be

used as the predicate offense for the § 1326 prosecution. See Alvarado-Delgado, 98

F.3d at 493.

United States v. Martinez-Vitela, 225 F.3d 665, 2000 WL 687698, at *4 (9th Cir. 2000)

(unpublished). Although Martinez-Vitela is not binding, its reasoning, which rests heavily upon

Mendoza-Lopez, is sound.7

The government relies upon a series of Ninth Circuit opinions that, it suggests, stands for the

proposition that a reinstatement of a removal order can serve as the predicate for a section 1326(a)

prosecution, even if the removal order that supports the reinstatement failed to comport with due

process. The government begins with United States v. Luna-Madellaga, 315 F.3d 1224, 1226 (9th

Cir. 2003), in which the Ninth Circuit held that section 1326 “speaks only of ‘removal,’ ” and

“plainly turns on the alien’s physical removal—not the order of removal.” (Emphasis added). The

government asserts that Luna-Madellaga, as well as United States v. Diaz-Luevano, 494 F.3d 1159,

1161-62 (9th Cir. 2007), a more recent case affirming Luna-Madellaga’s continued strength,

establish that a reinstatement of a valid removal order, standing alone, can serve as a predicate for

prosecution under section 1326(a). 

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In order to prevail on the instant motion, however, the government must justify an additional

legal and logical leap. Given Chipres-Madriz’s successful collateral challenge of his 1999 removal

order, the government must convince the court that a reinstatement of a constitutionally infirm

removal order, standing alone, can function as the basis for a section 1326(a) prosecution. In service

of that effort, the government turns to a civil immigration decision, the previously mentioned

Morales-Izquierdo v. Gonzales. In Morales-Izquierdo, the alien claimed that “a removal order may

not constitutionally be reinstated if the underlying proceeding itself violated due process.” MoralesIzquierdo, 486 F.3d at 497. The Ninth Circuit, sitting en banc, held to the contrary:

Reinstatement of a prior removal order—regardless of the process afforded in the

underlying order—does not offend due process because reinstatement of a prior order

does not change the alien’s rights or remedies. The only effect of the reinstatement

order is to cause Morales’ removal, thus denying him any benefits from his latest

violation of U.S. law, committed when he reentered the United States without the

Attorney General’s permission in contravention of INA § 212(a)(9), 8 U.S.C. §

1182(a)(9). 

Id. at 498. The government suggests that Morales-Izquierdo provides the legal basis for denying

Chipres-Madriz’s motion. 

In so arguing, the government asks the court to read far, far too much into MoralesIzquierdo, a holding that the en banc court explicitly limited to the immigration context. In MoralesIzquierdo, the Ninth Circuit explained that a reinstatement “does not change the alien’s rights or

remedies,” precisely because a reinstatement “imposes no civil or criminal penalties, creates no new

obstacles to attacking the validity of the removal order, and does not diminish petitioner’s access to

whatever path for lawful reentry into the United States might otherwise be available to him under the

immigration laws.” Id. The unmistakable subtext of the opinion is that if, as a consequence of a

reinstatement, an alien would suffer additional criminal or civil penalties or would face additional

barriers to challenging the original removal order, a court must consider the validity of the

underlying removal order. Accordingly, Morales-Izquierdo is not persuasive, on the facts here and

in light of Mendoza-Lopez, “where criminal penalties are at stake.” Lopez-Hernandez, 2007 WL

608111, at * 7; see id. (“Permitting the government to rely solely on the reinstatement of an

unlawful order would create additional criminal penalties and would create new obstacles to a

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criminal defendant challenging the original order pursuant to Section 1326(d). The defendant would

be completely foreclosed from challenging the original deportation order regardless of the process

afforded by the original order. The defendant would face criminal penalties as a result. Such a

system would directly contradict the Supreme Court’s pronouncement that due process permits a

collateral attack of an administrative proceeding where that proceeding plays ‘a critical role in the

subsequent imposition of a criminal sanction.’ Mendoza-Lopez, 481 U.S. at 837-38.”). 

Therefore, the court holds that under Mendoza-Lopez, the reinstatement of a constitutionally

inform removal order cannot function as the predicate for a section 1326(a) prosecution. Due

process does not permit the government to “launder,” United States v. Arias-Ordonez, 07-cr-00738-

MMC, Transcript of Proceedings, May 28, 2008 at 6, or “avoid the consequences of a fundamentally

unfair underlying deportation or removal,” Charleswell, 456 F.3d at 352, by utilizing a reinstatement

of a flawed removal order as the foundation of a section 1326(a) indictment. This rule is in accord

with the Supreme Court’s directives as well as common sense.

The court has already determined that Chipres-Madriz’s 1999 removal order was invalid. 

The court now holds that because of the flaws in the 1999 removal order, the nine reinstatements of

the 1999 removal order are similarly invalid. Accordingly, none of the nine reinstatements can serve

as the predicate for Chipres-Madriz’s prosecution under section 1326(a). Without the removal order

or the reinstatements, the indictment filed against Chipres-Madriz cannot stand. Accordingly,

Chipres-Madriz’s motion to dismiss the indictment is GRANTED.

CONCLUSION

For the reasons expressed above, defendant Chipres-Madriz’s motion to dismiss the

indictment is GRANTED. 

IT IS SO ORDERED.

Dated: January 27, 2010 

MARILYN HALL PATEL

United States District Court Judge

Northern District of California

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1. In support of his motion, Chipres-Madriz submitted a transcript of his removal proceeding that was

transcribed by Amy Jo Lucas, a legal secretary within the San Francisco office Federal Public Defender.

As such, it is not an official transcript of the proceedings. However, the government has not identified

any inaccuracies in the transcript, and, after listening to the tape of the proceeding, the court is confident

that the transcript presents an accurate depiction of what transpired at the removal hearing. 

2. During the group admonition session, IJ Zastrow collectively informed the aliens, including ChipresMadriz, that they: had a right to retain an attorney; may be eligible for a bond redetermination; had a

right to contact their consulate or embassy; had the right to present evidence, including witnesses and

documents, on their behalf; had a right to inspect the documents that the government sought to enter into

the record, have those documents translated by an interpreter, and object to their admission; had the

right to question any witnesses that the government called against them; had the right to appeal, within

thirty days, any order issued by IJ Zastrow; alternatively, had the right to accept any order of removal

issued by IJ Zastrow without appealing, and be immediately deported to Mexico; would, if ordered

removed, be ineligible to return to the United States for a minimum period of five years, and depending

on their individual circumstances, may never be able to return; would, if they were ordered removed and

subsequently reentered the United States without permission, be committing the crime of illegal reentry

after removal, for which they could be imprisoned for up to 20 years and fined up to $250,000. See

Transcript of Removal Hearing at 1-4. 

IJ Zastrow also collectively asked the aliens, including Chipres-Madriz, whether they: wanted

to procure an attorney (all answered no); had received a copy of the Notice to Appear filed against them

(all answered yes); wanted to be placed on the bond redetermination calendar (one alien, not ChipresMadriz, responded yes; the judge denied the request); wanted to contact their consulate or embassy (all

answered no); at the conclusion of the group admonition session, understood their “rights and the

warning against returning” (all answered yes). See id.

3. The government has not included anything in the record to indicate that Chipres-Madriz ever was

convicted of such a charge. However, Chipres-Madriz has not objected to the government’s

characterization of his alien or criminal record after his removal order was issued in 1999. 

4. Section 1227(a)(2)(A)(iii) allows the government to deport any alien who has been convicted of an

aggravated felony, while section 1227(a)(4)(B) permits the deportation of any alien who has engaged

in terrorist activities. The government does not contend that Chipres-Madriz falls into either of those

categories.

5. Perhaps unsurprisingly, in his own declaration, Chipres-Madriz explains that he believed that if

responded that he did have the funds, “they [the government] were going to charge [him] to be deported

. . . .” Docket No. 15 (Chipres-Madriz Dec.) ¶ 4. 

6. First, where the alien disputes his identity, “verification of identity shall be accomplished by a

comparison of fingerprints,” 8 C.F.R. § 241.8(a)(2); where no fingerprints are available, the immigration

official cannot reinstate the removal order. Id. Second, an alien’s removal order cannot be reinstated

unless the immigration official obtains “the prior order of exclusion, deportation, or removal relating

to the alien,” 8 C.F.R. § 241.8(a)(1); if that documentation is not procured, the matter is referred to an

immigration judge. Third, in determining whether the alien entered the United States illegally, the

immigration officer must “consider all relevant evidence, including statements made by the alien and

any evidence in the alien’s possession. The immigration officer shall attempt to verify an alien’s claim,

if any, that he or she was lawfully admitted, which shall include a check of INS date systems available

to the officer.” 8 C.F.R. § 241.8(a)(3). See generally Morales-Izquierdo, 486 F.3d at 495. 

ENDNOTES

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7. Martinez-Vitela was originally a published opinion, which the Ninth Circuit withdrew and

superseded, and then ultimately withdrew in its entirety. See United States v. Martinez-Vitela, 183 F.3d

1131 (9th Cir. 1999), withdrawn and superseded by 193 F.3d 1047 (9th Cir. 1999), withdrawn by 213

F.3d 1205 (9th Cir. 2000). The above-quoted language, however, appeared in almost identical form in

all three iterations of the opinion. 

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