US v. De La Mora-Chen, No. 20-30187 (11-29-21)(Tallman w/Gould & Bumatay). The 9th affirms the district court’s dismissal of a defendant’s motion to dismiss the 1326 indictment. The defendant argued he was precluded from collaterally attacking the underlying order of removal. The defendant had raised an asylum claim which had been denied in expedited removal and he did not appeal. The 9th holds the defendant raising an asylum claim in expedited removal proceedings must exhaust administrative remedies before the defendant can collaterally challenge in a subsequent criminal case. Here, the defendant was given an opportunity to appeal the denial of his claim (no credible fear despite being kidnapped and held for ransom and maimed) and made a “considered and intelligent” decision not to. Thus, he was precluded from now collaterally attacking it in this 1326 case.

A valiant effort by Deputy Fed Defender Paul Shelton of the Fed Def Wash E (Yakima).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/29/20-30187.pdf