United States v. Jose Ochoa, 665 F. App'x 635

Jose Ochoa was indicted and convicted under 8 U.S.C. § 1326 for illegal reentry after a 2001 removal.
The 2001 removal was based on a conviction for conspiracy to export defense articles without a license (conviction under 18 U.S.C. § 371 for violating 22 U.S.C. § 2778(b)(2)).
Ochoa moved pretrial to dismiss the § 1326 indictment, arguing his prior removal violated due process because the underlying conviction could not serve as a removal ground.
A defendant charged under § 1326 may bring a collateral due-process attack on the underlying deportation order but must show he was deprived of the opportunity for judicial review (8 U.S.C. § 1326(d)(2)).
The Notice to Appear in Ochoa’s removal proceeding explicitly charged the crime as an “aggravated felony” and a “firearms offense,” and those issues were litigated in the removal proceeding.
Ochoa did not seek judicial review of the removal order; the Ninth Circuit concluded he failed to identify any obstacle that prevented him from obtaining judicial review and therefore precluded collateral attack under § 1326(d).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ochoa may collaterally attack his 2001 removal in a § 1326 prosecution	Ochoa argued the 2001 removal violated due process because his underlying conspiracy conviction could not justify removal	Government argued Ochoa failed to show he was deprived of the opportunity for judicial review of the removal order	The court held Ochoa cannot collaterally attack the removal because he failed to demonstrate he was deprived of an opportunity for judicial review
Whether the court should decide if the underlying conviction was an aggravated felony or firearms offense	Ochoa sought a ruling that his conviction could not serve as a basis for removal	Government did not concede but contested the collateral attackability	The court declined to decide whether the underlying conviction was an aggravated felony or firearms offense because collateral attack was precluded

United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014) (defendant may bring a collateral due-process attack on an underlying deportation in a § 1326 proceeding)
United States v. Gonzalez-Villalobos, 724 F.3d 1125 (9th Cir. 2013) (defendant must show an obstacle prevented judicial review to prevail on a collateral attack under § 1326(d))
Ruiz v. Affinity Logistics Corp., 667 F.3d 1318 (9th Cir. 2012) (appellate courts may exercise discretion to reach legal issues not argued by parties)
Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010) (court may address issues sua sponte in certain circumstances)
United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006) (erroneous advice of ineligibility for relief can constitute deprivation of opportunity for judicial review)
United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (same: misadvice about eligibility for relief may bar later collateral attack)