United States v. Morales-Carrillo, 2:17-cr-00241

Background

Defendant Pedro Morales‑Carrillo indicted under 8 U.S.C. § 1326 for illegal reentry based on a February 11, 2009 removal and an October 26, 2010 reinstatement of that removal.
On Feb. 10–11, 2009 DHS served a Notice to Appear and Morales‑Carrillo signed a stipulated removal the same day, without counsel; the IJ ordered removal the next day. The record contains no IJ finding that the waiver was voluntary, knowing, and intelligent.
Morales‑Carrillo returned to the U.S., and DHS issued a Notice of Intent to Reinstate on Oct. 25, 2010; a Border Patrol agent reinstated the 2009 order and he was removed Oct. 26, 2010.
Morales‑Carrillo moved to dismiss, arguing the 2009 order was defective because (1) the IJ failed to make the required voluntariness inquiry under 8 C.F.R. § 1003.25(b) and (2) he was not informed of apparent eligibility for voluntary departure. The 2010 order is a reinstatement of that allegedly defective 2009 order.
The magistrate judge found regulatory/due‑process violations as to both the lack of an IJ voluntariness determination and the failure to advise about voluntary departure, but concluded Morales‑Carrillo failed to show prejudice (i.e., plausible grounds for relief) and therefore recommended denial of the motion to dismiss.

Issues

Issue	Plaintiff's Argument (United States)	Defendant's Argument (Morales‑Carrillo)	Held
Whether the IJ complied with 8 C.F.R. § 1003.25(b) before entering a stipulated removal where defendant was unrepresented	Gov't contends any procedural defect did not prejudice defendant and the removal stands	Morales‑Carrillo argues the IJ never made the required voluntariness/knowing/intelligent finding and the waiver cannot be presumed valid	Court: IJ violated § 1003.25(b); waiver not proven by clear and convincing evidence but violation alone does not automatically require dismissal without prejudice showing
Whether the IJ had to advise Morales‑Carrillo of apparent eligibility for voluntary departure	Gov't does not dispute statutory eligibility but argues defendant cannot show plausible grounds for relief	Morales‑Carrillo says he was eligible for pre‑conclusion voluntary departure and the IJ’s failure to advise was a mandatory due‑process violation	Court: Failure to advise was a due‑process violation that excuses exhaustion; IJ’s omission invalidates the underlying proceeding absent a showing of no prejudice
Whether Morales‑Carrillo suffered prejudice (plausible grounds for relief) from the procedural violations	Gov't argues defendant cannot establish plausible grounds for relief and so cannot show prejudice	Morales‑Carrillo contends he was eligible and might have obtained voluntary departure if informed	Court: No prejudice shown—given short U.S. residence, lack of family ties in U.S., no humanitarian claims, and a recent serious drug‑trafficking conviction, plausible relief was not established; recommend denial of motion to dismiss

Key Cases Cited

United States v. Mendoza‑Lopez, 481 U.S. 828 (1987) (defendant in § 1326 prosecution may collaterally attack underlying removal order)
United States v. Ubaldo‑Figueroa, 364 F.3d 1042 (9th Cir. 2004) (underlying removal is fundamentally unfair if due‑process violation plus prejudice)
United States v. Ramos, 623 F.3d 672 (9th Cir. 2010) (agency’s failure to follow its regulations can invalidate the administrative determination)
United States v. Gomez, 757 F.3d 885 (9th Cir. 2014) (stipulated removal form alone is insufficient to prove valid waiver by clear and convincing evidence)
United States v. Valdez‑Novoa, 780 F.3d 906 (9th Cir. 2015) (excusing exhaustion where IJ failed to inform alien of apparent eligibility for relief)
United States v. Rojas‑Pedroza, 716 F.3d 1253 (9th Cir. 2013) (two‑step analysis for plausibility of discretionary relief)
United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) (IJ must advise when record contains inference of eligibility for relief)
United States v. Jimenez‑Marmolejo, 104 F.3d 1083 (9th Cir. 1996) (defendant must show plausible grounds for relief to establish prejudice)