1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Arturo Alarcon-Garcia, 

Defendant. 

No. CR-17-01693-001-PHX-DGC 

ORDER 

 Defendant Arturo Alarcon-Garcia is charged with illegal reentry of a removed 

alien in violation of 8 U.S.C. § 1326(a) and (b)(1). Doc. 10. Defendant has filed a 

motion to dismiss the indictment. Doc. 25. The motion is fully briefed, the Court heard 

oral argument on May 2, 2018, and the parties filed supplemental briefs. For the reasons 

stated below, the Court will grant Defendant’s motion. 

I. Background. 

 Defendant is a non-U.S. citizen who was convicted in Maricopa County Superior 

Court on July 8, 2002, of an aggravated assault in violation of A.R.S. §§ 13-1203 

and 1204. Doc. 31-7 at 5-6. Although he was sixteen years old at the time, he was 

convicted as an adult pursuant to A.R.S. § 13-501. Id.; see also Doc. 31-1 at 2 (birth 

year). Defendant was sentenced to 3.5 years in state prison. Doc. 31-7 at 11-12. 

 On January 15, 2004, the government gave notice to Defendant that it intended to 

administratively remove him from the United States because of the conviction. 

Doc. 31-6 at 2-3. The notice informed Defendant, who was 19 years old at the time, of 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

his right to counsel (id. at 2), but there is no evidence that Defendant affirmatively 

waived this right. Defendant admitted the notice’s allegations and waived his right to 

contest removal. Id. at 3. 

 The government issued a Final Administrative Removal Order (“Order”) on 

March 24, 2005. Id. at 4. The Order found that Defendant had been convicted of an 

“aggravated felony” as defined in 8 U.S.C. § 1101(a)(43). Id. For this reason, the Order 

concluded that Defendant was removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Id. The 

government removed Defendant from the United States on the same day. Id. at 7. 

 Defendant subsequently returned to the United States and was convicted of illegal 

reentry twice. Case No. 2:16-cr-02029-WJ, Doc. 27 (D.N.M Aug. 4, 2016); Case 

No. 2:06-cr-00903-ROS, Doc. 44 (D. Ariz. Aug. 27, 2007). The government reinstated 

the Order and removed Defendant after each conviction. Doc. 31 at 2; Doc. 31-1 at 2. 

 Defendant was arrested in the United States again on October 28, 2017, and 

allegedly admitted to illegal reentry. Doc. 31-1 at 3. This indictment followed. Doc. 10. 

II. Legal Standard. 

 A defendant may challenge the validity of a removal order only after meeting the 

three elements of § 1326(d): 

In a criminal proceeding under this section, an alien may not challenge the 

validity of the deportation order described in subsection (a)(1) or subsection 

(b) unless the alien demonstrates that -- 

(1) the alien exhausted any administrative remedies that may have 

been available to seek relief against the order; 

(2) the deportation proceedings at which the order was issued 

improperly deprived the alien of the opportunity for judicial review; 

and 

(3) the entry of the order was fundamentally unfair. 

8 U.S.C. § 1326(d). 

 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

III. All Requirements of § 1326(d) Are Satisfied. 

A. The First Two Elements – Exhaustion of Administrative Remedies and 

Deprivation of Judicial Review. 

 After the Order was issued in 2005, the Ninth Circuit held that a conviction under 

A.R.S. § 13-1203 is not a categorical “crime of violence” under 8 U.S.C. § 16(a). 

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc); see also

Cornejo-Villagrana v. Sessions, 870 F.3d 1099, 1103-04 (9th Cir. 2017). This decision 

encompasses a conviction under A.R.S. § 13-1204, which requires a conviction under 

§ 13-1203. See A.R.S. § 13-1204(A). In the Ninth Circuit, this subsequent case law must 

be applied retroactively to the time of Defendant’s removal in 2005. United States v. 

Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017) (per curiam); United States v. AguileraRios, 769 F.3d 626, 632-33 (9th Cir. 2014). Applying Fernandez-Ruiz retroactively, the 

Court finds that “Defendant was not convicted of an offense that made him removable 

under the INA.” Ochoa, 861 F.3d at 1015; see also 8 U.S.C. § 1101(a)(43)(F) (an 

“aggravated felony” justifying removal includes a “crime of violence” under 18 U.S.C. 

§ 16(a)). As a result, the requirements of § 1326(d)(1) and (2) are satisfied. Ochoa, 861 

F.3d at 1015 (“if Defendant was not convicted of an offense that made him removable 

under the INA to begin with, he is excused from proving the first two requirements.”).1

B. The Third Element – Fundamental Unfairness. 

 The third requirement of § 1326(d) is controlled by a well-recognized rule in the 

Ninth Circuit: “Where a prior removal order is premised on the commission of an 

aggravated felony, a defendant who shows that the crime of which he was previously 

convicted was not, in fact, an aggravated felony, has established both that his due process 

rights were violated and that he suffered prejudice as a result.” United States v. 

Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015); see also Ochoa, 861 F.3d at 1015 (“if [a 

 

1

 The Court previously concluded that the modified categorical approach does not help the government’s position in this case. See Doc. 45. For reasons discussed at oral 

argument, the 2002 conviction documents provided by the government do not clearly show that Defendant was convicted under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2), 

which can still constitute a crime of violence. 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

defendant] was removed when he should not have been, his removal was fundamentally 

unfair, and he may not be convicted of reentry after deportation.” (internal quotation 

marks omitted)); Aguilera-Rios, 769 F.3d at 630 (“If Aguilera was removed when he 

should not have been, his 2005 removal was fundamentally unfair, and he may not be 

convicted of reentry after deportation.” (internal quotation marks omitted)); United States 

v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006) (“Camacho’s Notice to Appear 

charged him as removable only for having committed an aggravated felony; as discussed 

above, Camacho’s prior conviction did not fit that definition. Thus, Camacho was 

removed when he should not have been and clearly suffered prejudice.” (emphasis in 

original)). 

 The government argues that this rule applies only when the Defendant was a 

lawful permanent resident (“LPR”) who had a right to remain in the United States absent 

an erroneous removal order. Doc. 47 at 1-3. It is true that Ochoa, Martinez, AguileraRios, and Camacho-Lopez all involved LPR defendants. Martinez, 786 F.3d at 1229; 

Aguilera-Rios, 769 F.3d at 629; Camacho-Lopez, 450 F.3d at 929. This case is different, 

the government argues, because Defendant was not a LPR and had no legal status in the 

United States. Doc. 47 at 1. As a result, he was removable in any event and cannot show 

prejudice from the incorrect finding of an aggravated felony. Id. at 2-3. This distinction 

makes sense to the Court, but the government does not cite, and the Court has not found, 

any Ninth Circuit decision that recognizes it. To the contrary, each of the decisions cited 

above states the rule in broad terms, making no distinction between LPRs and 

unauthorized aliens. 

 What is more, the Ninth Circuit recently applied the rule to a non-LPR defendant. 

In United States v. Morales-Landa, 608 F. App’x 474 (9th Cir. 2015), the court held that 

a defendant’s ground for removal was not an aggravated felony. Id. at 475. MoralesLanda concluded: “Defendant has ‘shown that the crime of which he was previously 

convicted was not an aggravated felony,’ and has thus established that the entry of his 

removal order was fundamentally unfair.” Id. at 475 (quoting Martinez, 786 F.3d 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

at 1230). The Ninth Circuit did not mention Morales-Landa’s immigration status, id.

at 474-75, but the district court opinion confirms that he was “a citizen of Mexico without 

legal status in the United States,” United States v. Morales-Landa, 18 F. 

Supp. 3d 1015, 1017 (S.D. Cal. 2014). 

 District courts in this circuit have also applied the rule to non-LPR defendants. 

See, e.g., United States v. Gaspar-Juarez, 291 F. Supp. 3d 1186, 1189 (D. Or. 2018) 

(non-LPR defendant demonstrated fundamental unfairness because his removal order was 

legally incorrect)2

; United States v. Cazares-Rodriguez, No. 3:17-CR-00327-

GPC-1, 2017 WL 2212031, at *19 (S.D. Cal. May 19, 2017) (non-LPR defendant “has 

demonstrated that his underlying removal order was fundamentally unfair because he was 

not removable as charged”); United States v. Tavizon-Ruiz, 196 F. Supp. 3d 1076, 1079 

(N.D. Cal. 2016) (rejecting government’s argument that prejudice is presumed only for 

LPR defendants); United States v. Banda, No. CR 11-01197 DDP, 2012 WL 3779027, at 

*4 (C.D. Cal. Aug. 31, 2012) (finding prejudice because non-LPR defendant was 

“improperly removed”); but see United States v. Meliton-Salto, No. 17CR523-BEN, 2017 

WL 3252320, at *2 (S.D. Cal. July 31, 2017) (distinguishing between LPR and non-LPR 

defendants for purposes of prejudice presumed from a legally incorrect removal order). 

 In summary, Defendant’s 2002 conviction under A.R.S. §§ 13-1203 and 13-1204 

is, with hindsight, not an aggravated felony for purposes of federal immigration law. As 

a result, Ochoa, Martinez, Aguilera-Rios, Camacho-Lopez, and Morales-Landa require 

the Court to hold that his removal order was fundamentally unfair under § 1326(d)(3). 

 It is immaterial that the government could have, but did not, include alternative 

grounds for removal in the Order. The government argues that Defendant “was 

independently subject to removal in 2005 as an alien unlawfully in the United States.” 

Doc. 47 at 2 (citing 8 U.S.C. § 1182(a)(6)(A)(i)). But the Order identified a single 

ground for removal, and subsequent precedent shows that this ground was based on legal 

 

2

 The text of this decision does not confirm that the defendant was a non-LPR, but 

the case file does. The removal order notes that he was a non-LPR. Case No. 17-

CR-00200-JO-1, Doc. 15-3 at 1 (D. Or. Oct. 25, 2017). 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

error. Ninth Circuit law requires a finding of prejudice in this situation. See CamachoLopez, 450 F.3d at 930 (finding prejudice where the only ground in the removal order 

was legal error). 

 The Court again notes that the government’s argument has logical force. The 

Court agrees with Judge Graber’s observation in Ochoa that Ninth Circuit precedent in 

this area largely reads the requirements of § 1326(d) out of the statute. See Ochoa, 861 

F.3d at 1018-24 (Graber, J., concurring). But Judge Graber suggested en banc review to 

clarify the law, id. at 1018, and the Ninth Circuit apparently declined, Case No. 3:14-

cr-00525-RS-1, Doc. 62 (N.D. Cal. Sept. 12, 2017). As a result, the Court must follow 

the precedent identified above. 

IV. Conclusion. 

 Ninth Circuit precedent requires the Court to retroactively apply statutory 

interpretation decisions to questions of removability. Fernandez-Ruiz requires a finding 

that Defendant’s state conviction was not an aggravated felony for purposes of federal 

immigration law. This conclusion alone is sufficient to satisfy all three requirements of 

§ 1326(d), and requires dismissal of the indictment. 

IT IS ORDERED that Defendant’s motion to dismiss the indictment (Doc. 25) is 

granted. 

IT IS FURTHER ORDERED that Defendant shall be released as to this case 

only. 

 Dated this 21st day of May, 2018.