U.S. v. Barajas-Alvarado, No. 10-50134 (8-24-11) (Ikuta with Rymer and Tallman).

The 9th holds that courts must conduct some "some meaningful review" of an expedited removal order being used as a predicate for a 1326 criminal prosecution. The defendant here was facing a 1326 charge, with the expedited removal order being used to show that he had been removed. He sought to challenge, alleging its unconstitutionality for lack of a court being able to assess its fairness. The 9th wrestles with the issue, especially because Congress barred judicial review. The 9th holds that there has to be some review, and adopting the Mendoza-Lopez standard, requires some meaningful review, although limits the review to determining whether the removal proceeding was "fundamentally unfair because it violated the alien's due process rights and resulted in prejudice." On the facts here, the defendant comes up short, since the immigration officers, the 9th finds, would not have exercised discretion to allow him to withdraw his admissibility application.

A "meaningful" congratulations to James Chavez of the Federal Defenders of San Diego for securing the principle of "some meaningful review."

U.S. v. Matus-Zayas, No. 09-10294 (8-24-11) (Rawlinson with B. Fletcher and Tallman).

If a court is going to let the government admit a witnesses' deposition at trial, the government must offer some evidence of the witnesses' unavailability. Here, in this alien smuggling case, the government introduced material witnesses' depositions but failed to show why they were unavailable. This was error. However, the defendant did not show that the witnesses were available; nor did the defendant object or raise a confrontation challenge. The error was without prejudice.