United States v. Gustavo Garcia-Gonzalez, 2015 U.S. App. LEXIS 11313

Gustavo Garcia-Gonzalez (Garcia) was removed in 2003 and again via expedited removal at the San Ysidro Port of Entry on September 11, 2012; he later was indicted under 8 U.S.C. § 1326 for unlawful reentry and pleaded guilty conditionally to preserve appeal of a motion to dismiss.
Garcia argued his 2012 expedited removal was "fundamentally unfair" under § 1326(d)(3) because procedural requirements (forms I-860/I-867AB) were not followed, he was not told withdrawal of application for admission was available, and an officer mischaracterized his 2003 removal.
To prevail on § 1326(d)(3), Garcia had to show a due process violation in the removal proceeding and prejudice: that it was plausible he would have received discretionary relief (withdrawal of application for admission) absent the violation.
The government conceded procedural noncompliance but argued Garcia could not show prejudice because his use of false citizenship documents and a drug-conviction inadmissibility made withdrawal implausible.
Garcia also subpoenaed statistics about how often applicants with fraudulent documents were granted withdrawal; the government (via testimony) said no usable statistics existed and compiling them would require manual review of many files. The district court denied the motion to dismiss and refused to compel the statistics; the Ninth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Garcia's 2012 expedited removal was "fundamentally unfair" (prejudice prong of § 1326(d))	Garcia: procedural defects deprived him of due process and, absent them, it was plausible he would have obtained withdrawal of application for admission (citing family ties, pending I-130 priority date, humanitarian factors).	Government: even assuming procedural error, withdrawal was implausible because Garcia used false citizenship documents and had a drug-conviction rendering him inadmissible; Field Manual factors weigh against relief.	Held: Affirmed. Assuming a due process violation, Garcia failed to show prejudice — withdrawal was not plausible given deliberate fraud and inadmissibility.
Whether the government violated Brady or discovery rules by not producing statistics about withdrawal grants to applicants who used fraud	Garcia: He met initial burden to infer the government had such statistics and the government must produce them or prove none exist.	Government: No such compiled statistics exist; producing accurate data would require manual review; Armijo credibly testified to nonexistence and impracticability.	Held: Affirmed. District court credited government testimony; defendant produced no contrary evidence; government not required to create new statistical Brady material.

United States v. Lopez, 762 F.3d 852 (9th Cir.) (predicate removal must comport with due process for § 1326)
United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir.) (deliberate fraud at entry strongly disfavors withdrawal of application)
United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir.) (plausibility of discretionary relief measured against Inspector’s Field Manual criteria)
Knauff v. Shaughnessy, 338 U.S. 537 (U.S.) (nonadmitted aliens not entitled to judicial procedures beyond those Congress prescribes)
United States v. Price, 566 F.3d 900 (9th Cir.) (standards on shifting burdens for alleged undisclosed Brady material)
Sanchez v. United States, 50 F.3d 1448 (9th Cir.) (government not required to produce information it does not possess)