United States v. Hermilo Zamudio
787 F.3d 961
9th Cir.2015Background
- Zamudio, a Mexican national and former lawful permanent resident, had a 1994 California kidnapping conviction and a 2000 conviction for possession of methamphetamine.
- After his 2000 sentence, INS served a Notice to Appear; at the removal hearing Zamudio’s attorney (Smith) conceded both convictions and agreed Zamudio was removable; the IJ ordered removal to Mexico.
- In 2001 Zamudio reentered the U.S. at a port of entry; his wife presented his now-invalid green card and other documents and an agent allowed them through.
- In 2012 Zamudio was detained again and indicted under 8 U.S.C. § 1326 for being a deported alien "found in" the United States after illegal reentry.
- Zamudio moved to dismiss, arguing the underlying deportation was fundamentally unfair (due process violation; ineffective assistance), and later argued the statute of limitations for § 1326 had run because the limitations period began at the 2001 port-of-entry encounter.
- The district court denied dismissal, allowed limited testimony about the 2001 crossing, instructed the jury that presenting an invalid green card does not put authorities on notice of illegal presence, and Zamudio was convicted; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Zamudio) | Held |
|---|---|---|---|
| Validity of removal order under 8 U.S.C. § 1326(d) (fundamental unfairness) | Removal order stands because convictions made removability clear; counsel’s in-court concession satisfies government’s burden | Removal was fundamentally unfair because IJ failed to advise of relief eligibility and counsel’s concession was ineffective | Affirmed: Zamudio failed §1326(d) burden; kidnapping is categorically a removable crime of violence and counsel’s admission bound him; no prejudice shown from any IJ error |
| Prejudice from counsel’s concession / ineffective assistance | Smith’s admission was reasonable given law at the time; defendant offers no contradicting facts | Admission resulted from ineffective assistance and should not bind Zamudio | Affirmed: counsel’s performance not deficient under Strickland and higher Fifth Amendment standard; no prejudice shown |
| Statute of limitations accrual for §1326 (when "found in") — whether presentation of invalid green card starts the clock | Statute begins when immigration authorities discover/identify alien; but presenting an invalid green card does not notify authorities of illegal presence | Clock began in 2001 when border agent saw documents and Zamudio, so prosecution time-barred in 2012 | Affirmed: presentation of invalid green card as valid does not give notice; "found in" offense incomplete at reentry, so limitations did not run |
| Jury instruction on constructive knowledge of government | No constructive knowledge here because invalid documentation conceals illegality; instruction given was proper | District court should have instructed on constructive knowledge theory | Affirmed: no need to decide broader constructive-knowledge rule; on these facts government lacked (actual or constructive) notice, so instruction omission harmless |
Key Cases Cited
- Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir.) (kidnapping is categorically a crime of violence)
- Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir.) (attorney’s in-court admission of NTA allegations binds alien and relieves government of proof)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir.) (same principle re: attorney admissions of NTA allegations)
- Garcia-Jimenez v. Gonzales, 488 F.3d 1082 (9th Cir.) (relief granted under §1182(c) can preclude later relief under §1229b(c)(6))
- Torres-Chavez v. Holder, 567 F.3d 1096 (9th Cir.) (higher Fifth Amendment ineffective-assistance standard in immigration context)
- Strickland v. Washington, 466 U.S. 668 (U.S.) (standard for ineffective assistance of counsel)
- United States v. Hernandez, 189 F.3d 785 (9th Cir.) (statute of limitations for §1326 begins when alien is discovered and identified by immigration authorities)
- United States v. Acevedo, 229 F.3d 350 (2d Cir.) (presentation of invalid green card does not place INS on notice of illegal presence)
- United States v. Gomez, 38 F.3d 1031 (8th Cir.) (when alien leaves identifying information enabling discovery, constructive notice may accrue)
- United States v. Gordon, 513 F.3d 659 (7th Cir.) (invalid green card presented with real name can be affirmative deception; not constructive notice)