United States v. Barajas-Alvarado
2011 U.S. App. LEXIS 17652
| 9th Cir. | 2011Background
- Barajas-Alvarado, a non-admitted alien, was removed to Mexico via expedited removal orders in 2002 and 2003 and later returned to the U.S.
- He was apprehended at the Calexico port in 2009 after presenting a fraudulent permanent resident card and admitted prior deportations and a criminal history.
- A 2009 indictment charged him with attempted entry after deportation under 8 U.S.C. § 1326(a) and (b).
- Barajas-Alvarado moved to dismiss the indictment arguing the predicate expedited removal orders were invalid and could not support § 1326 charges.
- The district court found the December 2002 and July 2003 expedited removal orders valid predicates but denied dismissal for lack of prejudice from alleged procedural flaws.
- On appeal, Barajas-Alvarado contends the INA precludes meaningful judicial review of expedited removal orders and Mendoza-Lopez requires such review before using orders as § 1326 predicates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there meaningful judicial review of expedited removal orders under the INA? | Barajas-Alvarado argues INA precludes meaningful review of expedited removals. | United States contends review is limited or unnecessary under INA and § 1225(b)(1)(D). | INA precludes direct review but Mendoza-Lopez framework applies for meaningful review in collateral challenges. |
| Does Mendoza-Lopez require some meaningful review of expedited removal orders before using them as § 1326 predicates? | Barajas-Alvarado claims Mendoza-Lopez extends to expedited removals, requiring review. | Government argues Mendoza-Lopez does not apply or review is not meaningful under expedited process. | Yes; there must be some meaningful review if the removal order is a predicate to § 1326. |
| Is § 1225(b)(1)(D) unconstitutional to the extent it prohibits collateral review of expedited removal orders in § 1326 prosecutions? | Barajas-Alvarado relies on Mendoza-Lopez's meaningfully review requirement and argues § 1225(b)(1)(D) blocks it. | Government contends § 1225(b)(1)(D) plainly strips collateral review and should be upheld. | § 1225(b)(1)(D) is unconstitutional to the extent it forecloses meaningful review when petitioned in a § 1326 case. |
| Did Barajas-Alvarado suffer prejudice from alleged translation, counsel, or signature deficiencies in the expedited removal proceedings? | Barajas-Alvarado asserts due process violations (translation, counsel, notice) deprive him of meaningful review and prejudice result. | Government argues no prejudice or that right-to-counsel did not attach in expedited removal; translation concerns are ambiguously recorded. | No prejudice established; translation defects were not shown to plausibly change outcome; no denial of meaningful review. |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (due process requires some meaningful judicial review of predicate deportation orders used in § 1326)
- United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (meaningful review when removal predicate is challenged under § 1326)
- United States v. Lopez-Vasquez, 227 F.3d 476 (5th Cir. 2000) (policy discussion on review of expedited removal collateral challenges)
- United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (due process protections for non-admitted aliens in § 1326 context (en banc discussion))