Case o' The Week: In a Lone Star State of Mind - Ochoa and Section 1326(d) Challenges

 Should the Ninth be brought “in line” with the Fifth and other circuits?

 A visiting Texas district judge thinks so (as do two members of the Ninth).

United States v. Ochoa, 2017 WL 2836820 (9th Cir. July 3, 2017), decision available here.

Players: Per curiam decision, with Judges Graber, McKeown, and visiting ND Texas Chief District Judge Barbara M.G. Lynn. 

 

The Honorable Judge Susan Graber

Concurrence urging en banc review by Judge Graber, joined by Judge McKeown and Chief D.J. Lynn.

  Admirable victory for ND Cal FPD Chief Ass’t Geoff Hansen, and Research & Writing Attorneys Lara Vinnard and Steven Koeninger.

Facts: Ochoa pleaded guilty to conspiring to commit a violation of the Arms Export Control Act (22 USC § 2778). Id. at *1.

  While incarcerated, Ochoa was served with an immigration notice to appear. The notice alleged Ochoa was convicted of conspiracy to export defense articles without a license, including guns and ammo as alleged in the indictment. Id. The notice alleged that this conviction was an agg felony. Id. at *2.

  The IJ found Ochoa removable and explained he did not see “any relief available.” Ochoa accepted the decision, did not appeal, and was removed. Id.

  He reentered, was found in California, and charged with illegal reentry. Id. Ochoa moved under § 1326(d) to dismiss the indictment, alleging the original removal was illegal. Specifically, Ochoa argued that § 2278 was overbroad, not divisible, and was thus not an agg felony. Id. at *4.

   The motion was denied, and Ochoa was found guilty after a stipulated facts bench trial. United States v. Ochoa, CR 14-00525-RS, Dkt. # 37.

Issue(s): “[Ochoa] argues that the removal order was invalid because his . . . conviction for conspiring to violate 22 USC § 2778 was not a categorical match to the Immigration and Nationality’s Act . . . aggravated felony or firearms categories.” 2017 WL 2836820, *1.

Held: “[W]e hold that Defendant was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgement of conviction.” Id. at *1.

Of Note: Huge win on the merits.

The Honorable Judge Michael Hawkins

  The buzz worthy issue, however, is the panel’s most reluctant application of the Ninth’s Pallares-Galan and Camacho-Lopez decisions – and Judge Graber's concurrence seeking en banc review (joined by Judges McKeown and Lynn). See id. at *10 (Graber, J., concurring) ("These anomalies call for en banc consideration to bring our jurisprudence in line with the statute and other circuits.")

  The 2006 Camacho-Lopez opinion by Judge Hawkins relied on the 2004 Pallares-Galan decision. Camacho-Lopez logically held that if an alien was convicted of an offense for which he was not originally removable, and the IJ erroneously advised on discretionary relief, the alien would be excused from proving the first two prongs of a § 1326(d) challenge:

 

1. that he exhausted administrative remedies, and

  2. that the deportation proceedings improperly deprived him of the opportunity for judicial review.

Id. at *2, discussing Camacho-Lopez, see also id. at *5 (Judges Graber, McKeown, and D.J. Lynn, concurring).

  Judge Graber 's concurrence attacks this line of established Ninth jurisprudence. The concurrence argues that a Ninth Circuit en banc court should bring the Ninth “in line” with other Circuits (like the Fifth, from whence visiting ND Texas Chief D.J. Lynn hails). Id. at *10, *9 (citing Villanueva-Diaz).

  The concurrence, however, fails to note that the government squarely waived this argument. See, e.g., United States v. Ochoa, CR 14-00525-RS, Dkt. # 27, Gov’t Opp at 3:9-12. (“More to the point, if Mr. Ochoa was ‘removed when he should not have been,’ then he suffered a prejudicial violation of his rights, and his motion should be granted. United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006).”). 

  (Worth pointing out that way back in Camacho, the government made this identical concession – a concession which Judge Hawkins appropriately enforced. 450 F.3d at 930).

  For Ochoa to go en banc, the Ninth would have to turn a very deliberate blind eye to this whopping government waiver or forfeiture. See generally United States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002) (enforcing government’s waiver of argument on appeal).

   Judge Graber says it best in her Ochoa concurrence: “We will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious . . . .” Ochoa, 2017 WL 2836820, *9 (Judges Graber, McKeown, and Chief DJ Lynn, concurring).

How to Use: This is a grudging holding on the merits, but a correct Taylor analysis. 

  Ochoa is now a lead Ninth case on Taylor overbreadth: worth a close read for your next § 1326(d) statutory challenge. See id. at *3-*4.

                                               

For Further Reading: Seems like a silly question, but should the government have to, well, you know, appeal, to have its issue heard on appeal?

  For a thoughtful piece discussing this very timely question, see Yates, Morgan, Truth or Unintended Consequences: Reining in Appellate Court Action in the Absence of a Government Appeal Vol. 82 : Iss. 3 , Article 11 (2015), available here.

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Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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