United States v. Sanchez-Aguilar

Proof of defendant’s second departure from the United States was not an element of the § 1326 offense since the first departure was undisputed, but was necessary to avoid double jeopardy concerns; additionally, aliens are not entitled to be informed of potentially available avenues of relief in expedited removal proceedings.

Alvaro Sanchez-Aguilar is a citizen of Mexico who initially came to the United States as a child with his mother. He was formally removed in 1998, 2005, 2006, 2007, and 2010. Sanchez-Aguilar was charged in 2011 pursuant to 8 U.S.C. § 1326 for being an alien found in the United States after having been removed. He contested that a removal order may not be used as the predicate for a § 1326 charge if the proceeding violated the alien’s due process rights and created prejudice. The district court found that the 2006 removal order was not invalid, in fact Sanchez-Aguilar had been convicted of a § 1326 violation in 2009 based on the 2006 removal. He further contested the government’s failure to prove he had left the United States following his 2009 conviction. The district court found that the government only needed to prove the defendant had been removed in 2006 and at some point thereafter defendant knowingly and voluntarily returned to the United States without obtaining the requisite permission to do so beforehand. On appeal Sanchez-Aguilar raised the defense of double jeopardy. The Ninth Circuit held that because defendant had not raised the defense below, and because it was undisputed below that he had left the United States following his 2009 conviction, there was no plain error. Sanchez-Aguilar contended that his due process rights were violated because the immigration officer did not advise him of his ability to request withdrawal of his application for admission making his 2006 removal order invalid. The panel held that defendant’s removal proceeding was authorized under 8 U.S.C. § 1225(b)(1), which sets forth procedural rights entitled to aliens, the right to be informed of potentially available relief is not among them. AFFIRMED.