FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCISCO OCHOA-OREGEL,

Defendant-Appellant.

No. 16-50413

D.C. No.

3:16-cr-01116-BEN-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, Senior District Judge, Presiding

Argued and Submitted March 7, 2018

Pasadena, California

Filed August 2, 2018

Before: Ronald M. Gould and Mary H. Murguia, Circuit 

Judges, and Dana L. Christensen,* Chief District Judge.

Opinion by Judge Gould

 * The Honorable Dana L. Christensen, Chief United States District 

Judge for the District of Montana, sitting by designation.
2 UNITED STATES V. OCHOA-OROGEL

SUMMARY**

Criminal Law

Reversing a conviction for unlawful re-entry into the 

United States in violation of 8 U.S.C. § 1326, the panel held 

that the defendant’s 2008 and 2011 removals were 

fundamentally unfair, and neither can serve as a predicate 

removal for purposes of § 1326.

The panel held that because the 2008 removal 

proceeding was in absentia, the defendant satisfied the 

exhaustion and deprivation-of-judicial-review requirements 

for bringing a collateral attack on the validity of that 

removal, which was based on a prior conviction for 

California domestic violence battery. The panel also held 

that because circuit precedent at the time of the 2008 

removal hearing established that California battery was not 

a categorical crime of violence, it was error to remove the 

defendant for a crime of domestic violence under Section 

237(a)(2)(E)(i) of the Immigration and Nationality Act 

based on his California battery conviction. 

The panel held that the due process defects in the 2008 

removal proceeding infected the defendant’s 2011 expedited 

removal for presenting invalid entry documents. The panel 

wrote that a person should not be stripped of the important 

legal entitlements that come with lawful permanent resident 

status – including protection against expedited removal –

through a legally erroneous decision that he or she had no 

 ** 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. OCHOA-OROGEL 3

meaningful opportunity to contest. The panel rejected the 

government’s contention that the defendant was not 

prejudiced. The panel explained that if the defendant was 

still a lawful permanent resident, his entry documents were 

not invalid, and 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.

COUNSEL

Whitney Z. Bernstein (argued), Federal Defenders of San 

Diego Inc., San Diego, California, for Defendant-Appellant.

Nicole Ries Fox (argued), Assistant United States Attorney; 

Helen H. Hong, Chief, Appellate Section; United States 

Attorney’s Office, San Diego, California; for PlaintiffAppellee.

OPINION

GOULD, Circuit Judge: 

Francisco Ochoa-Oregel (Defendant) unlawfully entered 

the United States in 2016 and was convicted of unlawful reentry in violation of 8 U.S.C. § 1326. Before his 2016 

conviction for unlawful re-entry, Defendant had previously 

been ordered removed in 2008, based on a prior conviction 

for California domestic violence battery, Cal. Penal Code 

§ 243(e)(1), in an in absentia proceeding. The government 

contends that Defendant lost his status as a legal permanent 

resident as a result of the 2008 removal. Defendant was 

again removed in 2011 in an expedited removal proceeding. 
4 UNITED STATES V. OCHOA-OROGEL

For the reasons stated below, we hold that both the 2008 and 

2011 removal orders were fundamentally unfair, and that 

neither can serve as a predicate removal for purposes of 

§ 1326.

Defendant argues that both his 2008 and 2011 removal 

orders were unlawful, and that there is no predicate offense 

for a conviction under § 1326. An alien who is charged with 

unlawful re-entry in violation of 8 U.S.C. § 1326 can 

collaterally attack the validity of a prior removal that serves 

as a predicate element for the conviction. United States v. 

Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017). To succeed in 

a collateral attack, a defendant must show exhaustion, 

deprivation of judicial review, and that the entry of the 

removal order was fundamentally unfair. United States v. 

Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003).

A person is exempt from the exhaustion requirements 

and will have adequately shown deprivation of judicial 

review, if the immigration judge, in the prior removal 

proceeding, does not inform the alien of the right to appeal. 

Id. at 1049–50. As Ochoa’s removal proceeding was in 

absentia, he has satisfied the exhaustion and deprivation of 

judicial review requirements. At the time of Defendant’s 

2008 hearing before the immigration judge, our circuit 

precedent had established that California battery was not a 

categorical crime of violence. Ortega-Mendez v. Gonzales, 

450 F.3d 1010, 1017 (9th Cir. 2006). It was error to remove 

Defendant for a crime of domestic violence under 

Immigration and Nationality Act § 237(a)(2)(E)(i) based on 

his California battery conviction. The 2008 in absentia 

removal cannot properly serve as a predicate for a conviction 

for illegal re-entry.

The 2011 removal order also cannot serve as a predicate 

for unlawful re-entry. An alien who had been removed 
UNITED STATES V. OCHOA-OROGEL 5

through expedited removal proceedings automatically 

satisfies the requirements for exhaustion and deprivation of 

judicial review. United States v. Raya-Vaca, 771 F.3d 1195, 

1202 (9th Cir. 2014). In the context of reinstatements of 

prior erroneous removal orders, we have held that “limiting 

review to the procedural requirements for reinstatement 

without regard to the soundness of the underlying removal 

proceeding implicates due process concerns by effectively 

foreclosing all opportunity for ‘meaningful’ review of the 

underlying removal,” United States v. Arias-Ordonez, 

597 F.3d 972, 980 (9th Cir. 2010).

The 2011 removal at issue here was an expedited 

proceeding, not a reinstatement, but the same due process 

concerns apply. See Kwong Hai Chew v. Colding, 344 U.S. 

590, 597–78, 597 n.6 (1953) (emphasizing that officers 

violate the requirements of due process when they act 

arbitrarily to remove a person who has been afforded lawful 

permanent resident status); see also Osorio-Martinez v. AG 

United States, 893 F.3d 153 (3d Cir. 2018) (“the lawful 

permanent resident is the quintessential example of an alien 

entitled to broad constitutional protections.”) (citation and 

internal quotation marks omitted). The 2008 removal order 

was legally erroneous, Defendant did not have a meaningful 

opportunity to contest the order, and he was not told of 

available avenues for relief because the 2008 removal order 

was in absentia. These due process defects in the erroneous 

2008 removal proceeding infect the 2011 removal. A person 

should not be stripped of the important legal entitlements 

that come with lawful permanent resident status through a 

legally erroneous decision that he or she had no meaningful 

opportunity to contest. Among those protections is that 

lawful permanent residents cannot be removed on an 

expedited basis. 8 C.F.R. § 235.3(b)(5)(ii). This means that 

the 2011 expedited removal order was also fundamentally 
6 UNITED STATES V. OCHOA-OROGEL

unfair because it violated the process due to lawful 

permanent residents.

The government cites footnote 3 in United States v. 

Aguilera-Rios, 754 F.3d 1105 (9th Cir. 2014) to support its 

conclusion that even an invalid removal order is a final order 

that strips a person of the legal protections afforded to lawful 

permanent residents. Aguilera-Rios did not address the issue 

here—whether an erroneous in absentia removal order strips 

a person of those protections.1

The government contends that even if Defendant should 

have been treated as a lawful permanent resident in 2011, he 

was not prejudiced because he was an aggravated felon, who 

could have been removed anyway, and who would have been 

denied discretionary relief, including withdrawal of his 

application for admission. We reject the government’s 

contention for a fundamental reason. Because Defendant 

retained the protections afforded to lawful permanent 

residents, he was not removable as charged in the 2011 

proceedings—he was removed for presenting invalid entry 

documents. But if he was still a lawful permanent resident, 

then his entry documents were not invalid. And 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. See 

United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 

2006).

 1 We emphasize that our holding here is limited to the case where an 

alien is erroneously removed in absentia and did not have a meaningful 

opportunity to contest the order that ostensibly stripped him or her of 

lawful permanent resident status. We express no view about the effect 

of an order of removal that while legally erroneous was entered after an 

alien had a meaningful opportunity to contest removal.
UNITED STATES V. OCHOA-OROGEL 7

It is commonplace in the law that unconstitutional 

actions by the government will have some reasonable 

consequence for further proceedings that viewed in isolation 

otherwise conform to procedural requirements. That is why 

as a defense to a § 1326 prosecution for illegal re-entry, a 

person charged with that crime is entitled to make a 

collateral attack with a premise that the prior removal was 

invalid because it was fundamentally unfair and offended 

due process. United States v. Mendoza-Lopez, 481 U.S. 828, 

838 (1987).

Other examples of reasonable consequence for 

unconstitutional government action abound in the law. We 

mention just a few examples: If evidence is unlawfully 

seized in violation of the Fourth Amendment, then that 

evidence will be excluded from a later trial. Mapp v. Ohio, 

367 U.S. 643, 660 (1961). Indeed, if that evidence leads 

causally to discovery of other evidence, that may also be 

excluded as fruit of the poisonous tree. Wong Sun v. United 

States, 371 U.S. 471, 488 (1963). If a confession is given by 

a criminal suspect as a result of coercion and lack of 

voluntary action in violation of the due process clause, that 

evidence of confession would be suppressed. Dickerson v. 

United States, 530 U.S. 428, 434–35 (2000). If evidence 

favorable to an accused is withheld by a prosecutor causing 

prejudice, that may be a basis to vacate a conviction. Brady 

v. Maryland, 373 U.S. 83, 87 (1963). If a prosecutor submits 

knowingly false testimony at a trial, that would be a basis to 

vacate conviction. Napue v. Illinois, 360 U.S. 264, 269–270 

(1959).

We reject the government’s claim that any order of 

removal, no matter the substantive and procedural defects, 

would strip lawful permanent residents of the important legal 

protections that status affords them. The important legal 
8 UNITED STATES V. OCHOA-OROGEL

protections of lawful permanent resident status do not hang 

on the whims of government officials, they stand on the 

much more secure footing of lawful due process. At a 

minimum, persons do not lose lawful permanent resident 

status through legally erroneous decisions in hearings where 

they are not able to defend themselves because they were not 

present.

Because both the 2008 and 2011 removal orders were 

fundamentally unfair and there is no valid predicate offense 

grounding Defendant’s § 1326 unlawful re-entry conviction, 

we reverse Defendant’s conviction.

REVERSED.