FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50413 Plaintiff-Appellee, D.C. No. v. 3:16-cr-01116-BEN-1 FRANCISCO OCHOA-OREGEL, Defendant-Appellant. 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 Plaintiff- Appellee. OPINION GOULD, Circuit Judge: Francisco Ochoa-Oregel (Defendant) unlawfully entered the United States in 2016 and was convicted of unlawful re- entry 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 ...
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