US v. Ochoa, No. 15-10354 (7-3-17)(Per curiam w/Graber, McKeown, and Lynn; Graber concurs and is joined by the others).  The 9th remands a 1326 conviction with instructions to dismiss the indictment.  The 9th held that the underlying removal order, based on a conviction for conspiracy to export defense articles without a license, was invalid.  The conviction for conspiring was not a categorical match to the INA's aggravated felony or firearms categories.  The statute was overbroad and indivisible.  As such, the defendant should not have been removed, and hence, cannot be convicted of illegal reentry.

Concurring, Graber, and the panel, grit their teeth in applying 9th precedent.  The concurrence though views the precedent as having expanded the scope of collateral challenges far beyond the statutory text, and the 9th is out of step with other circuits.  The concurrence argues that the case law which finds a due process violation when the IJ erroneously informs a defendant of ineligibility for discretionary relief is an outlier.  Such an error should not be a constitutional violation.  The concurrence also decries the availability of collateral challenges for finding that a legal error constitutes a due process violation and a de novo review. The panel wants this case heard en banc to bring the 9th's jurisprudence in line with the statute and other circuits.

We will see if the request results in an en banc order, which would have far-reaching and dreadful consequences.

Congrats to AFPD Geoff Hansen of Cal N (San Francisco).  Keep fighting the fight.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/15-10354.pdf