Case o' The Week: The Pursuit of Prejudice - Barajas-Alvarado and Due Process Challenges to Expedited Removals

What's not to like about Judge Ikuta's important new decision for illegal reentry prosecutions? In a question of first impression, she holds in Barajas-Alvarado that when used as a basis for a Section 1326 prosecutions "expedited removals" must be subject to due process attack to pass constitutional muster. Given this great new rule, nothing now stands between us and winning motions to dismiss illegal reentry indictments.

(Nothing, that is, save "prejudice.")

United States v. Barajas-Alvarado, 2011 WL 3689244 (9th Cir. Aug. 24, 2011), decision available here.

Players: Big win for Ass't Federal Defender James Chavez, Federal Defenders of San Diego.

Facts: Barajas-Alvarado, an alien, was removed from the U.S. to Mexico several times via “expedited removal.” Id. “Expedited removal proceedings provide a streamlined process by which U.S. officers an remove aliens who attempt to gain entry to the United States but are not admissible.” Id. at *1 & n.1.

After he was later caught trying to enter again, with fake immigration docs, Barajas-Alvarado was charged with attempted illegal reentry. Id. The defense challenged the government’s reliance on the expedited removal orders as a basis for the §1326 charge; the district court rejected that challenge. Id. at *2. Barajas-Alvarado entered a conditional plea.

Issue(s): “Barajas–Alvarado claims that: (1) the Immigration and Naturalization Act . . . precludes any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a § 1326 action; (2) under Mendoza–Lopez, some meaningful review of the order is constitutionally required before the order can be used as a predicate to a criminal proceeding; and therefore (3) because the statute precludes review, expedited removal orders cannot be used as predicates in § 1326 prosecutions.” Id. at *2 (citation omitted).

Held: “To convict an alien criminal defendant of illegal reentry under 8 U.S.C. § 1326, the government must prove that the alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered. In . . . Mendoza–Lopez, the Supreme Court held that a criminal defendant has a Fifth Amendment right to 'some meaningful review' of a prior administrative proceeding that resulted in the exclusion, deportation, or removal order used as a predicate to a § 1326 offense. . . . Here, we conclude that Barajas–Alvarado was entitled to judicial review of the predicate expedited removal orders underlying his § 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. We therefore affirm the district court’s denial of Barajas–Alvarado’s motion to dismiss his indictment . . . .” Id. at *1 (footnote omitted) (citation omitted).

Of Note: U.S. citizens have due process rights. Aliens lawfully admitted to the U.S. have due process rights. Do non-admitted aliens have due process rights, when charged with a criminal case here in the U.S.? Seems like a no-brainer: if we’re going to incarcerate someone, lawful alien or no, surely that defendant should be afforded the due process of law?

Remarkably, this seems to be an unresolved issue. The author of this opinion, Judge Ikuta, does a little riff on this question; she notes that the government doesn’t argue the point so the Court does “not address this question.” Id. at 4 & n.8. Thankfully, for over a decade the Ninth has consistently assumed that non-admitted aliens should be afforded full due process rights – an assumption that continues in this Barajas-Alvardo decision. Id.

How to Use: The new rule of Barajas-Alvarado is that expedited removals can be used as a basis for § 1326 prosecutions, but are now subject to due process attack. Id. at *8-*9. Indeed, in this case there was a glaring due process problem: the removal proceedings were not fully translated into Spanish! Id. at *8. There is, sadly, a hitch: prejudice. Like “traditional” challenges to removals in illegal reentry prosecutions, an alien subjected to expedited removal must show that he suffered prejudice from the due process violation. Id. at *9.

Here, Barajas-Alvarado stumbles because he could not show that he was entitled to withdraw his application for admission (“withdrawal relief”); he did not, therefore, suffer prejudice. Id. For § 1326 cases based on expedited removals, take a close look at Judge Ikuta’s grappling with the defendant’s prejudice showing in this case. Id. at *8-*11. On slightly different facts, an alien might have a shot of making a “plausible showing” that he was entitled to “withdrawal relief.”

For Further Reading: For a useful summary of expedited removals see David Isaacson, Can Some Returning Nonimmigrants Challenge An Expedited Removal Order in Court? How Recent Case Law May Provide a Window of Opportunity, available here.


Image of U.S. Flag and fence from http://www.acslaw.org/acsblog/node/15775


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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