United States v. Faustino Gomez, 2014 U.S. App. LEXIS 7810

Background

Gomez, a Mexican national, pleaded guilty in Arizona (2004) to attempted sexual conduct with a minor (under 15) and was imprisoned until Jan 16, 2006.
On Jan 19–20, 2006, while in ICE custody at Eloy, Arizona, Gomez signed a bilingual Stipulated Removal form after a group reading; he was uncounseled, had a brief individual meeting, and was removed the same day.
In 2011 Gomez was arrested in Washington and indicted for illegal reentry under 8 U.S.C. § 1326; he moved to dismiss the indictment arguing his 2006 removal was invalid.
The district court denied dismissal and sentenced Gomez to 22 months after applying a 16-level enhancement under U.S.S.G. § 2L1.2 for a prior conviction for a “crime of violence.”
On appeal the Ninth Circuit held the 2006 removal was procedurally defective (invalid waiver of appeal and IJ violated 8 C.F.R. § 1003.25(b)) but affirmed the § 1326 conviction because Gomez was ineligible for voluntary departure at the time of removal; the court vacated the sentence because Arizona Rev. Stat. § 13-1405 is not categorically a "crime of violence."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of waiver of appeal in 2006 stipulated removal	Gomez: waiver was not knowing/voluntary; he lacked competent individualized explanation/translation	Gov: signed stipulation and IJ finding suffice to prove waiver	Waiver invalid; government failed to prove valid waiver by clear and convincing evidence
Compliance with 8 C.F.R. § 1003.25(b)	Gomez: IJ lacked sufficient factual record to find waiver "voluntary, knowing, and intelligent"	Gov: regulation allows IJ to enter order without hearing based on documents	IJ violated § 1003.25(b); relied solely on the form without adequate independent inquiry
Prejudice (eligibility for voluntary departure) for § 1326(d)(3) purposes	Gomez: he was eligible for pre-hearing voluntary departure and would have sought it	Gov: Gomez’s 2004 conviction was an aggravated felony (sexual abuse of a minor), making him ineligible	No prejudice: under law at time of removal Gomez’s conviction qualified as sexual abuse of a minor, so he was ineligible for voluntary departure; § 1326 denial to dismiss affirmed
Sentencing enhancement under U.S.S.G. § 2L1.2 (16-level) — is Ariz. § 13-1405 a "crime of violence"?	Gomez: § 13-1405 (even "under 15" version) does not categorically match generic statutory rape or sexual abuse of a minor	Gov: the conviction qualifies as statutory rape/sexual abuse of a minor and supports enhancement	Not a categorical match: § 13-1405 lacks elements (notably a 4-year age-difference element for generic statutory rape and the required "abuse" element); enhancement vacated; remand for resentencing

Key Cases Cited

Ramos v. Holder, 623 F.3d 672 (9th Cir. 2010) (Eloy stipulated-removal procedure; waiver invalid without competent individualized translation and explanation)
Reyes-Bonilla v. Holder, 671 F.3d 1036 (9th Cir. 2012) (government must prove valid waiver by clear and convincing evidence in § 1326 collateral attack)
Mendoza-Lopez v. United States, 481 U.S. 828 (U.S. 1987) (due process requires meaningful judicial review when administrative finding triggers criminal sanction)
Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (modified categorical approach not available when statute is indivisible or missing an element of the generic offense)
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc) (definition of generic "sexual abuse of a minor" includes an age-difference element in aggravated-felony context)
Vidal-Mendoza v. Holder, 705 F.3d 1012 (9th Cir. 2013) (evaluate prejudice using law as of time of removal; post-removal precedent may create new relief only in narrow circumstances)
Pereira-Salmeron v. Gonzales, 337 F.3d 1148 (9th Cir. 2003) (statute criminalizing intercourse with a child under fifteen constituted sexual abuse of a minor for aggravated-felony analysis)