NOT FOR PUBLICATION FILED MAY 14 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10011 Plaintiff-Appellant, D.C. No. 3:17-cr-00116-LRH-WGC-1 v. REFUGIO PALOMAR-SANTIAGO,AKA MEMORANDUM* Refugio SantiagoPalomar, Defendant-Appellee. Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding Submitted April 15, 2020** San Francisco, California Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. Refugio Palomar-Santiago is a Mexican national who was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California. In 1998, he received an Notice to Appear from the Immigration and Naturalization Service informing him that he was subject to removal because the DUI offense was classified as a crime of violence under 18 U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that basis. Three years later, the Ninth Circuit determined that the crime Palomar- Santiago was convicted of was not a crime of violence. United States v. Trinidad- Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013). By 2017, Palomar-Santiago was again living in the United States, this time without authorization. That year, a grand jury indicted him for illegal reentry after deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. § 2 1326(d). However, a defendant need not prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and need not show the third element if he can show the removal should not have occurred. United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017); United States v. Aguilera-Rios, 769 F.3d at 630. The district court held Palomar-Santiago met his burden in showing his crime was improperly characterized as an aggravated felony and that he was wrongfully removed from the United States in 1998. On this basis, it dismissed the indictment under § 1326(d). On appeal, the government concedes the district court faithfully applied Ninth Circuit precedent in its order. Instead of ...
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