United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-2745 ___________________________ United States of America, lllllllllllllllllllllPlaintiff - Appellant, v. Arturo Leal-Monroy, lllllllllllllllllllllDefendant - Appellee. ____________ Appeal from United States District Court for the District of Minnesota ____________ Submitted: October 23, 2020 Filed: February 26, 2021 ____________ Before COLLOTON, GRASZ, and STRAS, Circuit Judges. ____________ COLLOTON, Circuit Judge. The government appeals an order of the district court dismissing an indictment that charged Arturo Leal-Monroy with illegal reentry to the United States under 8 U.S.C. § 1326(a), (b)(2). We conclude that the district court erred in ruling that Leal- Monroy made a sufficient showing to attack the deportation order that underlies the charge in this criminal case. We therefore reverse and remand for further proceedings. A grand jury in Minnesota charged Leal-Monroy in March 2018 with unlawful reentry into the United States after a previous removal from the country in 1998. See 8 U.S.C. § 1326(a), (b)(2). In 1997, Leal-Monroy was convicted of aggravated criminal sexual abuse in Illinois under 720 Ill. Comp. Stat. 5/12-16(c)(1)(i) (1996). Relying on this adjudication, an immigration court in Chicago found him removable in 1998 based on a conviction for an aggravated felony. Leal-Monroy moved to dismiss the unlawful reentry charge in 2018 on the ground that the entry of the previous order of removal in 1998 was fundamentally unfair. See 8 U.S.C. § 1326(d). To defeat a charge of unlawful reentry by attacking the prior deportation order, a defendant must establish that the entry of the order was “fundamentally unfair.” Id. § 1326(d)(3). This standard requires a showing that there was a fundamental procedural error in the removal proceeding that resulted in actual prejudice. United States v. Espinal, 956 F.3d 570, 574 (8th Cir. 2020). Actual prejudice means that but for the procedural error, there was a reasonable likelihood that the alien would not have been deported. Id. at 575. The district court concluded that Leal-Monroy satisfied this standard. The court found fundamental procedural error because the immigration judge in 1998 allowed the attorney for the government to dictate the amount of Leal-Monroy’s bail, and the judge and the government attorney allegedly provided misinformation about whether Leal-Monroy’s prior conviction in Illinois was an aggravated felony. The court posited that if Leal-Monroy had been released on bail, then he “may have been able to secure counsel,” and counsel could have presented a “potentially successful argument” that his prior conviction did not qualify as an aggravated felony. On this view, Leal-Monroy suffered actual prejudice, because without a conviction for an -2- aggravated felony, he would not have been removed. For these reasons, the court dismissed the indictment charging unlawful reentry after a prior removal. The government appeals, and argues that Leal-Monroy failed to establish actual prejudice. Leal-Monroy defends the district court’s rationale and asserts that if the removal proceeding had been conducted differently, then there was a reasonable likelihood that he could have defeated the government’s contention that he was convicted of an aggravated felony. The ...
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