United States v. Barajas-Alvarado

An expedited removal proceeding order is valid as a predicate element under 8 U.S.C. § 1326 so long as the proceeding was fundamentally fair.

Barajas-Alvarado was previously removed from the United States under expedited removal orders. In 2009 he was charged with attempted entry after deportation. Barajas-Alvarado filed a motion to dismiss the indictment due to a lack of valid predicated offense. He argued that he never received a meaningful review of the order of deportation and therefore it could not be used in a subsequent criminal proceeding. The district denied the motion and Barajas-Alvarado entered a conditional plea of guilty with leave to appeal the predicate offense issue. The Ninth Circuit noted that Congress had expressly removed judicial review of expedited deportation orders and as such there was no meaningful review available to Barajas-Alvarado. The Ninth Circuit stated only a showing of fundamental unfairness in the expedited deportation process would sustain a due process challenge to the validity of the predicate deportation order. Barajas-Alvarado claimed that because he was denied interpretive assistance at the expedited removal hearing, he did not have an opportunity to withdraw his application for admission, which would have not resulted in the expedited removal order. The Ninth Circuit held that the error was not prejudicial because even if he withdrew his application for admission, it was still within the discretion of the agency to grant the withdrawal and Barajas-Alvarado made no showing of plausibility that the request would have been granted. The Ninth Circuit held the expedited removal order was valid and could therefore stand as the predicate offense for the current conviction. AFFIRMED.