FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-30187 Plaintiff-Appellee, D.C. No. v. 4:19-cr-06024-SMJ JORGE DE LA MORA-COBIAN, Defendant-Appellant. OPINION Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding Submitted November 8, 2021 * Seattle, Washington Filed November 29, 2021 Before: Ronald M. Gould, Richard C. Tallman, and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Tallman * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V. DE LA MORA-COBIAN SUMMARY ** Criminal The panel affirmed the district court’s order denying the defendant’s motion to dismiss his indictment for illegal reentry under 8 U.S.C. § 1326 on the basis that he was precluded from collaterally attacking the underlying order of removal. The panel held under the statutory framework enacted by Congress that an alien who raises a claim for asylum during expedited removal proceedings is provided with an administrative remedy that must be exhausted before that order of removal can be collaterally challenged in a subsequent criminal prosecution for reentering the United States. The panel held that the facts support the district court’s ruling that the defendant made a considered and intelligent decision to waive his right to appeal an asylum officer’s negative credible fear finding. The panel concluded that because the defendant validly waived his right to appeal, he is precluded from collaterally attacking the expedited order of removal as a result of his failure to exhaust his administrative remedies at the time. ** 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. DE LA MORA-COBIAN 3 COUNSEL Paul E. Shelton Jr., Federal Defenders of Eastern Washington & Idaho, Yakima, Washington, for Defendant- Appellant. Joseph H. Harrington, Acting United States Attorney; Richard C. Burson, Assistant United States Attorney; United States Attorney’s Office, Yakima, Washington; for Plaintiff- Appellee. OPINION TALLMAN, Circuit Judge: Jorge De La Mora-Cobian appeals from the district court’s order denying his motion to dismiss his indictment for illegal reentry under 8 U.S.C. § 1326 on the basis that he was precluded from collaterally attacking the underlying order of removal. We hold under the statutory framework enacted by Congress that an alien who raises a claim for asylum during expedited removal proceedings is provided with an administrative remedy that must be exhausted before that order of removal can be collaterally challenged in a subsequent criminal prosecution for reentering the United States. I A Jorge De La Mora-Cobian testified at the hearing in support of his motion to dismiss his indictment that he first entered our country in 1999, crossing the Mexican border at age eighteen. He lived in the United States until 2004, when 4 UNITED STATES V. DE LA MORA-COBIAN immigration authorities permitted him to voluntarily return to Mexico after he was convicted of driving under the …
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