United States v. Jose Mendez
677 F. App'x 306
| 9th Cir. | 2017Background
- Defendant Jose Mendez was convicted for improper reentry under 8 U.S.C. § 1326 after a prior administrative removal for attempted murder (California).
- Mendez moved to dismiss under 8 U.S.C. § 1326(d), arguing defects in the underlying removal (procedural service defect and that attempted murder is not an aggravated felony).
- He contended the Final Administrative Removal Order issued before service of Form I-851 was a legal nullity, meaning the government could not prove he was previously "deported."
- He also argued expedited removal denied him due-process and barred access to discretionary relief (§ 1182(h)).
- At sentencing the government sought a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based on the prior removal; Mendez argued the government needed clear-and-convincing proof of a valid removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1326(d) relief should bar prosecution because of defects in prior removal | Gov't: removal order stands; § 1326(d) not shown | Mendez: removal order was a legal nullity (procedural defect) and he exhausted remedies | Denied — Mendez failed to satisfy § 1326(d) requirements; collateral attack rejected |
| Whether attempted murder (CA) is not an aggravated felony for removal purposes | Gov't: California attempted murder fits generic aggravated-felony category | Mendez: Cruz-Santos shows CA law is broader than generic attempt | Denied — no showing CA law criminalizes conduct beyond generic attempted murder |
| Whether expedited removal and denial of § 1182(h) relief violated due process and caused prejudice | Gov't: even if process flawed, Mendez ineligible for § 1182(h) due to conviction | Mendez: expedited process deprived him of discretionary relief and prejudiced him | Denied — even assuming a due-process violation, no prejudice because conviction made § 1182(h) unavailable |
| Whether sentencing enhancement required proof the prior removal was valid by clear and convincing evidence | Gov't: only physical removal must be proved for § 2L1.2 enhancement after rejecting collateral attack | Mendez: needed higher proof of validity of removal | Denied — collateral attack failed, only proof of physical removal required; enhancement proper |
Key Cases Cited
- United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir. 2012) (standards for collateral attack under § 1326(d) and fundamental-unfairness test)
- United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (due-process violation + prejudice constitutes fundamental unfairness)
- United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013) (plausible showing required when relief is discretionary)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (categorical approach and limits on challenging immigration consequences of state convictions)
- United States v. Albino-Loe, 747 F.3d 1206 (9th Cir. 2014) (application of categorical/narrowing analysis to state offense)
- United States v. Rodriguez-Ocampo, 664 F.3d 1275 (9th Cir. 2011) (physical removal suffices for § 2L1.2 enhancement after collateral-attack failure)