US v. Ochoa-Oregel, No. 16-50413 (8-2-18)(Gould w/Murguia & Christensen). On an appeal from a 1326 conviction in 2016, the 9th holds that his prior removal orders in 2008 and 2011 were "fundamentally unfair" and neither can serve as predicate removals.  The defendant's conviction is reversed. 

The defendant was a LPR in 2008.  His removal proceeding was in absentia. As such, he was not given a chance to exhaust or to appeal.  Moreover, the circuit precedent established that his prior, a California battery, was not a categorical crime of violence. Thus, the 2008 in absentia removal for domestic violence was in error and cannot serve as a predicate.

Likewise, the 2011 removal order also cannot serve as a predicate. It was an expedited proceeding, but the same due process concerns apply.  The defendant could not contest the erroneous prior decision.  "The due process defects in the erroneous 2008 removal proceeding infect the 2011 removal." The gov't's argument that he was an agg felon in 2011 fails because, at that time, he was removed for presenting invalid entry documents.  However, since he was a LPR, his entry documents were not invalid.  Perhaps the gov't could have removed him on other grounds, but this ground was illegitimate. An order of removal does not strip the defendant of his status. People do not lose LPR status "through legally erroneous decisions in hearings where they are not able to defend themselves because they were not present."

Congrats to Whitney Bernstein of the Fed Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf