United States v. Garcia-Gonzalez

An alien who has been removed from the United States may not enter, attempt to enter, or be found in the United States without the Attorney General’s consent; a removal order is fundamentally unfair where the deportation proceeding violated due process and the alien was prejudiced as a result.

Gustavo Garcia-Gonzalez was indicted by a grand jury for being a previously removed alien who was illegally found in the United States, under 8 U.S.C. §1326(a), where upon he was convicted. Garcia argued that the indictment was fundamentally unfair, but the district court denied his motion to dismiss the indictment. Garcia appealed, arguing that the district court erred by concluding that he did not demonstrate how his expedited removal in 2012 was fundamentally unfair, and by not requiring the government to gather statistics about the number of people with similar backgrounds to his who were granted relief. On appeal, the Ninth Circuit reviewed whether the district court correctly denied Garcia-Gonzalez’s motion to dismiss the indictment. The panel explained that an alien who has been removed from the United States may not enter, attempt to enter, or be found in the United States without the Attorney General’s consent. However, under 8 U.S.C. §1326, a prior removal must be legal, valid, and comport with due process requirements. For a removal order to be considered fundamentally unfair, the alien must prove that the deportation proceeding violated his due process rights, and that the alien suffered prejudice because of it. The panel held that although Garcia demonstrated a violation in his due process rights, he did not demonstrate prejudice as a result. Further, the panel concluded that because Garcia could not demonstrate statistics of similar people with similar backgrounds, those documents sought were not presently available, and could not be compiled by the government. AFFIRMED.