Ninth Circuit Rejects Collateral Attack on Removal Orders

Ninth Circuit Rejects Collateral Attack on Removal Orders

Ninth Circuit Rejects Collateral Attack on Removal Orders 132 93 Amy Lenhert

The Court of Appeals for the Ninth Circuit recently published a decision upholding convictions for illegal reentry after removal despite the fact that the defendants were no longer removable as charged in their administrative proceedings.

USA v. Martinez-Hernandez involves two men, Jose and Oscar, who entered the United States without authorization at a young age.  They were both subsequently convicted of robbery in violation of California Penal Code (CPC) §211, and received sentences of five and three years, respectively.

After completing their time in criminal custody, the DHS removed them both on the basis of their robbery convictions.  The charging document in each case stated that their robbery convictions constituted “crimes of violence” – aggravated felonies under section 101(a)(43)(F) of the Immigration and Nationality Act (INA).  No other ground of removal was alleged.

Both individuals later re-entered the United States without inspection and were charged with the federal crime of illegal reentry.  Both filed motions to dismiss, citing intervening case law that establishes CPC §211 is categorically not a “crime of violence” because it can be violated by accidental use of force.

The Ninth Circuit agreed that they weren’t removable as charged, but nonetheless rejected their collateral attack on the removal orders.  In order to successfully attack a removal order in collateral proceedings, a defendant must show the removal proceedings were fundamentally unfair – that is, that the defendant’s due process rights were violated and that violation resulted in prejudice.

Had this case been on direct appeal from a removal order, the Court could not affirm removal on a ground that wasn’t charged by the DHS.  However, in the context of a collateral attack, the central issue is merely whether the defendant “was removed when he should not have been.”

In the case of Jose and Oscar, the Court reasoned they still should have been removed.  CPC §211 is categorically a theft offense.  And any theft offense with a one year sentence is an aggravated felony under INA §101(a)(43)(G).  Both defendants received sentences in excess of one year, and thus both were removable as aggravated felons (albeit under a different subsection of the law).

You can read USA v. Josue Martinez-Hernandez here:

SGG regularly represents individuals facing removal based on criminal convictions, and we also consult with criminal attorneys to avoid convictions that would have disastrous immigration effects. If you are in removal proceedings based on a crime or are facing criminal charges and want to avoid adverse immigration consequences, contact our office for a case evaluation at 213 – 627 – 8997.