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.
At the time of Defendant’s 2008 hearing before the immigration judge, the Ninth Circuit's precedent had established that California battery was not a categorical crime of violence. It was error to remove Defendant for a crime of domestic violence 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. Defendant was stripped of the important legal entitlements that come with lawful permanent resident status through the legally erroneous decision that he had no opportunity to contest in 2008. Among those protections is that lawful permanent residents cannot be removed on an expedited basis. This means that the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents.
The Court emphasized that We emphasize that its "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."
The full text of Ochoa-Oregel v. United States can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf