United States v. Ochoa-Oregel, 904 F.3d 682

Defendant Francisco Ochoa-Oregel was convicted in 2016 of unlawful re-entry under 8 U.S.C. § 1326 based on prior removals.
He was ordered removed in absentia in 2008 after a California domestic violence battery conviction; he did not receive notice of the hearing or of the right to move to reopen.
The government contends the 2008 order stripped Ochoa of lawful permanent resident (LPR) status; Ochoa was removed again in 2011 via expedited removal.
Ochoa collaterally attacked the prior removals, arguing exhaustion and deprivation of judicial review were satisfied and that the removals were fundamentally unfair.
The Ninth Circuit held the 2008 in absentia order was legally erroneous (battery not a categorical crime of violence), and that the 2011 expedited removal was infected by the 2008 due process defects.
Because neither removal could validly serve as a predicate for § 1326, the court reversed Ochoa’s unlawful-reentry conviction.

Issue	Plaintiff's Argument (Ochoa)	Defendant's Argument (Government)	Held
Whether exhaustion and deprivation-of-review requirements are satisfied for the 2008 in absentia order	2008 in absentia hearing gave no notice of hearing or right to reopen; exhaustion/deprivation satisfied	Removal order finally stripped review rights	Held: Satisfied — lack of notice excuses exhaustion and shows deprivation of judicial review
Whether the 2008 removal was legally erroneous	California battery was not a categorical crime of violence; removal under INA § 237(a)(2)(E)(i) was erroneous	Order was valid and final	Held: 2008 removal legally erroneous and cannot be predicate
Whether the 2011 expedited removal can serve as a predicate given the 2008 defects	2011 removal is infected by the 2008 due process defects; LPR protections continued, so expedited removal improper	Even an invalid prior order is final and strips LPR protections; any later valid procedural removal suffices	Held: 2011 expedited removal was fundamentally unfair because the 2008 error deprived Ochoa of LPR protections and meaningful contestation
Whether either removal can support a § 1326 conviction	Both removals are fundamentally unfair; no valid predicate exists	Even an erroneous removal can be final and strip protections; defendant still removable for other reasons	Held: Neither removal can serve as a § 1326 predicate; conviction reversed

United States v. Ochoa, 861 F.3d 1010 (9th Cir. 2017) (collateral attack standards for § 1326)
United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2003) (exhaustion and deprivation-of-review framework)
Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (California battery not categorical crime of violence)
United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (expedited removal and exhaustion/deprivation)
United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (reinstatement review and due process concerns)
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (due process limits on arbitrary removal of LPRs)
United States v. Aguilera-Rios, 754 F.3d 1105 (9th Cir. 2014) (discussed by government regarding finality of removal orders)
United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (right to collateral attack on removals used to support criminal prosecution)