United States v. Gomez

To attack a deportation order, an alien defendant must demonstrate: (1) exhaustion of any administrative remedies to seek relief against the order; (2) the deportation proceedings deprived judicial review; and (3) the entry of the order was fundamentally unfair if due process rights were violated in the deportation proceeding and the defendant suffered prejudice as a result of those proceeding defects.

In 2004, defendant Faustino Gomez (“Gomez”) was “indicted on three counts of violating Arizona Revised Statute section 13-1405 for sexual conduct with a minor who was under the age of fifteen.” After his release, immigration authorities served Gomez. A Stipulated Removal form was read in Spanish to Gomez and other aliens en masse. Gomez signed the form which “[waived] his rights to counsel, to a hearing before an Immigration Judge (“IJ”), to any form of relief (including voluntary departure), and to appeal.” The IJ found Gomez’s waiver to be “‘voluntary, knowing, and intelligent,’” and Gomez was removed to Mexico. In 2010, Gomez was indicted for illegal reentry. Gomez motioned to dismiss the indictment on the grounds “that the underlying stipulated removal proceeding was invalid,” however the district court denied the motion. To attack a deportation order, an alien defendant must demonstrate: (1) exhaustion of any administrative remedies to seek relief against the order; (2) the deportation proceedings deprived judicial review; and (3) the entry of the order was fundamentally unfair if due process rights were violated in the deportation proceeding and the defendant suffered prejudice as a result of those proceeding defects. The panel determined that the Stipulated Removal form was an invalid waiver, and therefore a violation of due process. To then determine if Gomez was prejudiced by the due process and regulatory violation, the panel determined whether Gomez’s conviction qualified as an “aggravated felony,” which would make him ineligible for voluntary departure. The panel determined Gomez’s conviction did qualify based on the statutory elements,making the violations harmless, so he was not prejudiced. Resentencing was appropriate, however, because Gomez’s conviction was not considered a “crime of violence” because the statute was missing an element of the generic offenses. AFFIRMED in part and VACATED in part, and REMANDED.