FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HERMILO PALMERIN ZAMUDIO,

AKA Hermilo Zamudio

Palmerin,

Defendant-Appellant.

No. 13-10322

D.C. No.

3:12-cr-00532-WHA-1

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted

September 9, 2014—San Francisco, California

Filed January 14, 2015

Amended May 7, 2015

Before: J. Clifford Wallace, Mary M. Schroeder,

and John B. Owens, Circuit Judges.

Order;

Opinion by Judge Wallace
2 UNITED STATES V. ZAMUDIO

SUMMARY*

Criminal Law

The panel (1) amended an opinion filed January 14, 2015,

affirming a conviction for violating 8 U.S.C. § 1326, which

prohibits a deported alien from being “found in” the United

States after reentering without permission; and (2) denied a

petition for panel rehearing.

The panel held that the district court correctly concluded

that the defendant failed to meet his burden in collaterally

attacking his underlying deportation proceeding. The panel

observed that kidnapping in violation of California Penal

Code § 207(a) is categorically a crime of violence for which

the defendant was removable based on his 1994 conviction;

and that the defendant’s attorney’s admission that his 2000

conviction was for methamphetamine possession and that the

defendantwas therefore removable satisfied the government’s

burden regarding removability. The panel held that even if

the immigration judge erred in failing to advise the defendant

of his ability to apply for relief from removal, the defendant

suffered no prejudice because if he had obtained relief from

removal for his 1994 conviction under 8 U.S.C. § 1182(c),

that would have rendered him ineligible for relief from

removal for his 2000 conviction under 8 U.S.C.

§ 1229b(c)(6). The panel rejected the defendant’s contention

that his attorney’s admission regarding the 2000 conviction

was the result of ineffective assistance of counsel. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ZAMUDIO 3

Rejecting the defendant’s contention that the district court

erred in failing to instruct the jury on a constructive

knowledge theory for the defendant’s statute of limitations

defense, the panel held that the defendant’s “found in”

offense under § 1326 was not complete – and therefore the

statute of limitations did not begin to run – when the

defendant reentered in 2001 because his presentation of an

invalid green card as if it were valid did not place authorities

on notice that the defendant’s presence in the United States

would be illegal. On the facts of this case, the panel did not

need to reach the question of whether constructive knowledge

can or should be imputed to the government when a

defendant leaves accurate information with the government

from which it could be determined that the defendant is in the

country illegally.

COUNSEL

Erick L. Guzman (argued), Law Office of Erick L. Guzman,

Santa Rosa, California, for Defendant-Appellant.

Laurie Kloster Gray (argued) and Susan B. Gray, Assistant

United States Attorneys, Melinda Haag, United States

Attorney, Barbara J. Valliere, Chief, Appellate Division, San

Francisco, California, for Plaintiff-Appellee.
4 UNITED STATES V. ZAMUDIO

ORDER

The court’s opinion filed January 14, 2015, and appearing

at 776 F.3d 672 (9th Cir. 2015), is hereby amended. An

amended opinion is filed herewith.

With this amended opinion, the panel has voted to deny

the petition for panel rehearing. That petition is therefore

DENIED. No further petitions for rehearing or rehearing en

banc may be filed.

OPINION

WALLACE, Senior Circuit Judge:

Zamudio was convicted of violating 8 U.S.C. § 1326,

which prohibits a deported alien from being “found in” the

United States after reentering without permission. Zamudio

now appeals from his conviction, arguing that the underlying

removal proceeding violated his due process rights, that the

district court erred in failing to instruct the jury on a

constructive knowledge theory for Zamudio’s statute of

limitations defense, and that the evidence presented to the

jury proved his statute of limitations defense as a matter of

law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

I.

Zamudio was born in Mexico and came to the United

States as a teenager. He subsequently became a legal

permanent resident by virtue of his marriage to a United
UNITED STATES V. ZAMUDIO 5

States citizen. In 1994 Zamudio pleaded guilty to kidnapping

in violation of California Penal Code § 207(a) and was

sentenced to three years in prison. In 1999 Zamudio was

arrested and charged with felony possession of

methamphetamine pursuant to California Health and Safety

Code § 11377(a) and with misdemeanor possession of

marijuana pursuant to § 11357(b). The marijuana charge was

dismissed and Zamudio pleaded guilty to the remaining

charge in 2000. Zamudio was sentenced to serve 100 days in

jail.

Upon completion of his sentence, Zamudio was taken into

custody by the United States Immigration and Naturalization

Service (INS). The INS served Zamudio with a Notice to

Appear (NTA) which charged that he was removable both

because his 1994 conviction for kidnapping was an

aggravated felony and because his 2000 conviction for

possession of methamphetamine was a violation relating to a

controlled substance.

Attorney Donald Smith was retained to represent

Zamudio. Smith filed a motion for change of venue, in which

he requested permission to appear by telephone. The motion

was denied, and another immigration judge (IJ) later held a

removal hearing. Zamudio was present, along with a Spanish

interpreter, but Smith was not. The IJ contacted Smith by

telephone and proceeded with the hearing.

The IJ asked Smith if he was ready to proceed with the

case, and Smith said he had not seen the NTA, but that if

the IJ would read it to him he could respond on behalf of

his client. Smith admitted that Zamudio had no claim to

U.S. citizenship and that Zamudio was convicted of

methamphetamine possession in 2000 and of kidnapping in
6 UNITED STATES V. ZAMUDIO

1994; he then conceded that Zamudio was deportable based

on each of his convictions. Both the IJ and Smith agreed that

there was no relief from deportation available to Zamudio.

The IJ then ordered Zamudio removed to Mexico.

Zamudio’s second and then-current wife later testified

before the district court that she traveled to Mexico several

months after Zamudio’s removal to bring Zamudio back to

the United States. She met Zamudio in Tijuana and brought

him his legal permanent resident card, or green card, which

was no longer valid following his removal. On Memorial Day

weekend in 2001 she drove Zamudio to a United States port

of entry where the border agent requested documentation for

everyone entering. She provided her driver’s license, her birth

certificate, and Zamudio’s invalid green card. The agent

looked at the green card, looked at Zamudio, and returned the

documents. Then, after asking whether there was anyone else

in the vehicle and checking the vehicle’s trunk, the agent

waved them forward through the port of entry.

In 2012 Zamudio came to the attention of immigration

officials in the United States, this time while he was

incarcerated at the Sonoma County Jail. He was subsequently

indicted for the instant offense.

Zamudio moved to dismiss the indictment, arguing that

the IJ’s failure to advise Zamudio that he was eligible to

apply for relief from removal rendered his removal order

invalid and precluded the government from relying on it as a

predicate element for the prosecution. Zamudio also argued,

among other things, that he received ineffective assistance of

counsel because Smith erred in conceding that Zamudio’s

drug conviction was for methamphetamine and Smith never
UNITED STATES V. ZAMUDIO 7

came to visit Zamudio and never explained what was

happening.

The district court denied Zamudio’s motion to dismiss,

concluding that Zamudio could not have successfully

contested removability based on either his 1994 conviction

for kidnapping or his 2000 conviction for drug possession.

The court reasoned that the 1994 kidnapping conviction

rendered Zamudio removable because kidnapping was

considered a crime of violence at the time of Zamudio’s

removal hearing, and the 2000 conviction was also a

removable offense because Zamudio’s counsel had admitted

at the removal hearing that the conviction was for possession

of methamphetamine. The district court further concluded

that any failure to advise Zamudio of his eligibility for relief

from removal was not prejudicial because if Zamudio had

been granted relief from removal for his 1994 conviction, he

would then have been ineligible for relief from removal for

his 2000 conviction.

After a two-day trial, the jury was unable to reach a

verdict. On re-trial, Zamudio pursued a statute of limitations

defense, arguing that the five-year statute of limitations for

8 U.S.C. § 1326 began to run in 2001 when his identification

was presented to a border agent while passing through a port

of entry into the United States, and therefore the charge

against him was already time-barred when he was indicted in

2012. Over the government’s objection, the district court

allowed testimony supporting this defense from Zamudio’s

second wife regarding their crossing the border into the

United States during the 2001 Memorial Day weekend.

However, the district court ultimately denied Zamudio’s

renewed motion to acquit at the close of evidence based on

his statute of limitations defense, and instead, over Zamudio’s
8 UNITED STATES V. ZAMUDIO

objections, instructed the jury with regard to the issue of

Zamudio’s reentry and the government’s alleged knowledge

that he was present in the United States illegally as follows:

When a deportee gains readmission to the

United States by presenting an invalid travel

document to border authorities, there is not

notice to the federal authorities that his

presence in the United States is illegal. In

such a circumstance, the statute of limitations

does not begin to run until the deportee is

subsequently found in the United States by

federal immigration authorities.

The jury found Zamudio guilty and he was sentenced to 37

months in prison.

Zamudio argues on appeal that the district court erred in

(1) denying his motion to dismiss the indictment because the

underlying deportation proceedingwas fundamentally unfair,

(2) omitting a jury instruction on constructive knowledge

with regard to his statute of limitations defense, and

(3) denying his motion for acquittal at the close of evidence

based on his statute of limitations defense.

II.

(1)

We review de novo a district court’s denial of a motion to

dismiss an indictment, including one charging illegal reentry

following deportation based on an alleged due process

violation in the underlying deportation proceeding. United

States v. Gonzalez-Villalobos, 724 F.3d 1125, 1129 (9th Cir.
UNITED STATES V. ZAMUDIO 9

2013). To challenge the validity of the underlying deportation

order in a criminal proceeding under 8 U.S.C. § 1326, the

defendant must meet three requirements by showing that

(1) he exhausted any available administrative remedies for

relief against the order, (2) the deportation proceedings

denied him the opportunity for judicial review, and (3) the

entry of the order was “fundamentally unfair.” 8 U.S.C.

§ 1326(d). Under the third requirement, the order is

“fundamentally unfair” only if the defendant shows that his

due process rights were violated and that he suffered

prejudice as a result. United States v. Valdez-Novoa, 760 F.3d

1013, 1020 (9th Cir. 2014).

For the reasons stated in the district court’s order denying

Zamudio’s motion to dismiss, we hold that the district court

correctly concluded that Zamudio failed to meet his burden

in collaterally attacking his underlying deportation

proceeding. The district court correctly reasoned that both of

Zamudio’s convictions rendered him removable. Kidnapping

in violation of California Penal Code § 207(a) is categorically

a crime of violence for which Zamudio was removable based

on his 1994 conviction. Delgado-Hernandez v. Holder,

697 F.3d 1125, 1127 (9th Cir. 2012). Zamudio’s attorney’s

admission that the 2000 convictionwasformethamphetamine

possession and that Zamudio was therefore removable

“relieved the government of the obligation to present any

evidence on the factual question of the nature of the drug

offense,” such that “the government’s burden [regarding

removability] [wa]s satisfied.” Perez-Mejia v. Holder,

663 F.3d 403, 414–15 (9th Cir. 2011); see also

Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

2011) (an alien’s admission of factual allegations from the

NTA “binds the alien and relieve[s] the [g]overnment of the

obligation to present any evidence on th[at] factual question,”
10 UNITED STATES V. ZAMUDIO

and “an attorney’s in-court admission of the NTA’s

allegations made on behalf of his alien client is treated no

differently”) (first and third alterations in original) (internal

citations and quotation marks omitted).1 Furthermore, even if

the IJ erred in failing to advise him of his ability to apply for

relief from removal, Zamudio suffered no prejudice because

if he had obtained relief from removal for his 1994 conviction

under 8 U.S.C. § 1182(c), that would have rendered him

ineligible for relief from removal for his 2000 conviction

under 8 U.S.C. § 1229b(c)(6). Garcia-Jimenez v. Gonzales,

488 F.3d 1082, 1086 (9th Cir. 2007).

Zamudio’s argument that he should not be bound by

Smith’s admission because it was the result of ineffective

assistance of counsel is unavailing. The standard for

establishing ineffective assistance of counsel under the Fifth

Amendment in immigration cases is higher than the Sixth

Amendment standard set forth in Strickland v. Washington,

466 U.S. 668 (1984), so if Zamudio fails to meet the

Strickland standard, he cannot meet the higher Fifth

Amendment standard either. Torres-Chavez v. Holder,

567 F.3d 1096, 1100 (9th Cir. 2009).

Even under Strickland, Zamudio’s counsel did not

perform below an “objective standard of reasonableness” in

failing to make legal arguments that were not yet established

at the time of Zamudio’s removal proceeding. 466 U.S. at

688. Strickland does not require attorneys to make arguments

based on cases that have not yet been decided. See Clark v.

1 We grant Zamudio’s motion for leave to file an oversized citation of

supplemental authorities. Zamudio’s citation to Medina-Lara v. Holder,

771 F.3d 1106 (9th Cir. 2014), does not alter our analysis that Zamudio

was bound by his attorney’s admission.
UNITED STATES V. ZAMUDIO 11

Arnold, 769 F.3d 711, 727 (9th Cir. 2014) (“[W]e do not

expect counsel to be prescient about the direction the law will

take”) (citation and quotation marks omitted). The law in

existence at the time of Zamudio’s deportation hearing gave

Zamudio no hope of avoiding deportation. As a result, even

if Zamudio were correct that the charging and sentencing

documents for his 2000 conviction were insufficient to show

that he had been convicted of possessing a federally

prohibited drug under United States v. Vidal, 504 F.3d 1072,

1087–88 (9th Cir. 2007) (en banc), Smith cannot have been

expected to make that argument seven years before our en

banc court so held. Nor was Smith required to anticipate the

Supreme Court’s ruling in I.N.S. v. St. Cyr, 533 U.S. 289

(2001), by arguing that neither the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 nor the

Antiterrorism and Effective Death Penalty Act of 1996 could

be applied retroactively. Zamudio’s counsel therefore did not

perform deficiently either under Strickland or under the more

exacting Fifth Amendment standard.

Zamudio has also failed to demonstrate prejudice. As the

district court stated, Zamudio “does not now contend that the

statements of his attorney, made on his behalf, were factually

incorrect, and does not provide any facts that would

contradict the admissions.” At no point has Zamudio cited

“any authority for the proposition that voluntarily conceding

a true fact can fundamentally undermine the fairness of a

proceeding, nor are we aware of any.” Torres-Chavez,

567 F.3d at 1102. Under these circumstances, we will not

hold that Zamudio was prejudiced by his counsel’s

challenged actions.
12 UNITED STATES V. ZAMUDIO

(2)

Zamudio also disputes the district court’s decision not to

provide a constructive knowledge jury instruction with regard

to his statute of limitations theory. A district court’s jury

instructions are reviewed de novo as to their accuracy and for

abuse of discretion as to their formulation. United States v.

Stinson, 647 F.3d 1196, 1215 (9th Cir. 2011). However,

because we hold as a matter of law that the statute of

limitations could not have run prior to the indictment on the

facts of this case, the specific standard of review does not

change our analysis.

Although we have clarified that the statute of limitations

for “[t]he offense of being found in the United States [begins

to run] when an alien is discovered and identified by the

immigration authorities,” United States v. Hernandez,

189 F.3d 785, 791 (9th Cir. 1999), we have not addressed

whether such discovery and identification must be based on

the government’s actual knowledge or can instead be proven

under a constructive knowledge theory. See United States v.

Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir. 1995)

(discussing a constructive knowledge standard in the context

of the statute of limitations for section 1326 but declining to

reach the question). We need not reach this question,

however, because we hold that the government does not

acquire knowledge—actual or constructive—of an alien’s

illegal presence in the United States upon being presented

with an invalid travel document. The statute of limitations

therefore cannot begin to run at that point because without

such notice, the “found in” offense in section 1326 remains

incomplete.
UNITED STATES V. ZAMUDIO 13

Other circuits have adopted a similar rule on the theory

that the statute of limitations is not designed to reward

deception. For example, in United States v. Acevedo, the

Second Circuit addressed the question whether a deported

alien who reentered the United States using his real name and

some valid documents, but who presented an invalid green

card, could argue that the statute of limitations began to run

when he presented such documentation to authorities upon

reentry. 229 F.3d 350, 353–54 (2d Cir. 2000). We agree with

the Second Circuit that since “a green card is an accepted

means by which an alien may demonstrate the legality of his

admission, a deportee’s presentation of an invalid green card

. . . does not place the INS on notice that his presence in the

United States [is] illegal, even if the alien uses his real name.”

Id. at 355 (internal citations and quotation marks omitted);

see also United States v. Gordon, 513 F.3d 659, 663 (7th Cir.

2008) (“A deportee who reenters the United States by

presenting an invalid green card but uses his real name still

deceives immigration officials as to the legality of his

presence”), abrogated on other grounds by Nelson v. United

States, 555 U.S. 350 (2009); cf. United States v. Scott,

447 F.3d 1365, 1370 (11th Cir. 2006) (accepting the

defendant’s argument that the statute of limitations began to

run at his initial interview with immigration officials given

that he “was completely honest” with immigration officials

during that interview, not only giving them “his real name,

the alias he was then operating under, [and] his correct

personal information,” but also “confessing his illegal reentry

and presence in the United States, detailing the prior date of

his deportation, and detailing how he illegally reentered the

country”).

In this case, according to Zamudio’s own witness, his

2001 entry involved the presentation of an invalid green card
14 UNITED STATES V. ZAMUDIO

as if it had been a valid travel document. Zamudio’s argument

that the presentation of his green card gave immigration

authorities knowledge of his illegal presence in the United

States thus directly contradicts the only possible purpose for

presenting the green card in that context: to convince

immigration authorities that he was entering the United States

legally.

We hold that Zamudio’s “found in” offense under section

1326 was not complete—and therefore the statute of

limitations did not begin to run—when Zamudio reentered in

2001 because his presentation of an invalid green card as if it

were valid did not place authorities on notice that Zamudio’s

presence in the United States would be illegal. Zamudio’s

successful use of “specious documentation that conceal[ed]

the illegality of his presence” in crossing back into the United

States should not empower him subsequently to avoid

prosecution on the theory that the government should have

known he was entering the United States illegally. Acevedo,

229 F.3d at 353 (alteration in original), quoting United States

v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir.1995); Gordon,

513 F.3d at 668 (Ripple, J., concurring) (“I do not believe that

the Government can be charged with constructive notice

when [the defendant] presented himself at the border with an

invalid, although authentic, green card. Indeed, it seems to

me that his actions at that point can be characterized as

affirmatively misleading the Government.”).

Zamudio’s citation to United States v. Gomez, 38 F.3d

1031 (8th Cir. 1994), does not help him. In Gomez, the

defendant voluntarily filed immigration papers with INS

officials; those papers “provided virtually no truthful

biographical data,” but did contain a set of valid fingerprints.

Id. at 1033, 1037. Because those fingerprints provided a
UNITED STATES V. ZAMUDIO 15

means by which the INS could have determined, in the

exercise of diligence, Gomez’s status as a deported alien, the

court held that the “found in” violation accrued—for purposes

of commencing the statute of limitations—at the earliest point

at which a normal fingerprint processing request would have

revealed Gomez’s illegal status. Id. at 1037–38. The court

ultimately concluded that Gomez was indicted within the

statutory period. Id. at 1038.

Even if we were to accept this out of circuit case, which

we need not, it would not change our position. In Gomez, the

alien provided INS with both the information and the means

to discover his immigration status. In this case, by contrast,

Zamudio did not leave any identifying information or

documents with authorities; instead, he retrieved his invalid

green card and took it with him when he left the port of entry.

This left immigration officials unable—even in the exercise

of diligence—to identify him, to ascertain that his entry was

illegal, or to locate him for further investigation. Compare

Gomez, 38 F.3d at 1037 (“As of May 3, the INS was in

possession of an I-687 which contained much falsified data,

but which also contained Gomez’s fingerprints, a means by

which the INS could determine Gomez’s true identity and

status as a deported alien;” as a result, without an imputation

of constructive knowledge to the government, “Gomez . . .

would be required to live in perpetual fear of prosecution.”

(emphasis added)).

Although there may be good reason to think that our

holding above regarding the use of invalid travel documents

would have led us to follow different reasoning than that

followed by the Eighth Circuit in Gomez, we would have

ultimately reached the same conclusion. On the facts of this

case, we need not reach the question of whether constructive
16 UNITED STATES V. ZAMUDIO

knowledge can or should be imputed to the government when

a defendant leaves accurate information with the government

from which it could be determined that the defendant is in the

country illegally. Accordingly, we hold that knowledge of

Zamudio’s status cannot be imputed to the government here.

(3)

Zamudio also argues that the district court erred by failing

to grant his motion for acquittal because no reasonable jury

could have found that Zamudio failed to meet his burden of

proving his statute of limitations defense, given the evidence.

Our conclusions above with regard to Zamudio’s statute of

limitations defense foreclose this argument.

AFFIRMED.