Thursday, January 15, 2015

United States v. Zamudio, No. 13-10322 (Wallace joined by Schroeder and Owens)

--- The Ninth Circuit held that the district court correctly denied an illegal-reentry defendant's collateral attack on the underlying removal order, and that the district court correctly declined to instruct the jury on a constructive-knowledge theory relating to an affirmative defense based on the statute of limitations, because the defendant's fraudulent entry using an invalid green card didn't put the government on notice as to the defendant's criminal conduct. The jury also correctly rejected the defendant's statute-of-limitations defense.

The defendant was removed after suffering two convictions -- a 1994 conviction for kidnapping, in violation of Cal. Penal Code § 207(a); and a 2000 conviction for felony possession of methamphetamine, in violation of Cal. Health & Saf. Code § 11377(a). He served three years on the kidnapping and 100 days on the drugs. After he served the drug sentence, he was placed in removal proceedings and, through counsel, conceded removability. An immigration judge ordered him removed to Mexico. In 2001, he entered the United States using his green card, which had been implicitly revoked when he was previously removed from the United States. He apparently lived without detection in the United States until 2012, when he was found in the Sonoma County Jail. He was then indicted for illegal reentry.

The removal proceedings were not fundamentally unfair, so the district court correctly denied the defendant's motion to dismiss the indictment. Both of the defendant's prior convictions are for removable offenses, and the defendant was bound by his lawyer's concession of removability even if it was wrong. The immigration judge's failure to advise the defendant of the possibility of relief from removal was not prejudicial, because even if the defendant had received relief from removal based on the 1994 conviction, he would not have been eligible for relief from removal based on the 2000 conviction. His immigration lawyer didn't even meet the Strickland standard for ineffective assistance -- he had no professional obligation to anticipate the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001) -- and thus didn't meet the higher standard for ineffective assistance in removal proceedings. Nor could the defendant demonstrate prejudice, because he didn't point to any actually incorrect statements that his lawyer made in removal proceedings.

The court has never decided whether, in an illegal reentry case, the government's constructive knowledge of the defendant's presence in the United States beings the running of the statute of limitations. Nevertheless, the district court didn't need to instruct the jury on this theory, because the defendant's presentation of a fraudulent travel document (here, an expired green card) at the time of entry affirmatively misled government officials. For that reason, the evidence presented at trial was sufficient to defeat his statute-of-limitations defense.

The decision is here:


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