United States v. Raya-Vaca

Under 8 U.S.C. § 1326, a conviction of illegal reentry into the United States requires the Government to establish that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered; in addition the Government must not violate the defendant’s due process rights or prejudice the defendant in convicting him.

After Victor Manuel Raya-Vaca (“Raya-Vaca”) was removed from the United States in 2009, he reentered the United States in 2011 and expedited removal proceedings were initiated following his apprehension. Raya-Vaca was again removed from the United States, but reentered and was charged with one count of illegal reentry in violation of 8 U.S.C. § 1326(a). The case came to the Ninth Circuit after Raya-Vaca entered a conditional guilty plea and filed a notice of appeal. A conviction of illegal reentry into the United States requires the Government to establish “that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered.” In challenging an indictment for violating § 1326, a defendant must show that he has exhausted his relief remedies, he was deprived of judicial review by deportation proceedings, and the removal order was “fundamentally unfair.” To show that the removal order was fundamentally unfair, the defendant must show that his due process rights were violated and resulted in prejudice to him. In showing prejudice, an alien must show the plausibility of relief from a removal order. During Raya-Vaca’s expedited removal proceedings, his due process rights were violated by him not receiving notice of his charge or an opportunity to respond. Since Raya-Vaca’s due process rights were violated and he had the plausibility of relief, the 2011 removal order that served as the basis for his 8 U.S.C. § 1326 conviction is invalid and the denial of his motion to dismiss must be reversed. REVERSED AND REMANDED.