United States v. Reyes-Bonilla, 671 F.3d 1036

Reyes, a Guatemalan citizen, entered the United States illegally in 1991 and was convicted of carjacking and assault with a firearm in 1995.
In 2001, upon determining deportability due to aggravated felony conviction, ICE expedited removal issued a Final Administrative Removal Order after an English-only Notice of Intent; Reyes reportedly did not understand English and there is no evidence the rights were explained in Spanish.
The August 7, 2001 removal order led to Reyes's removal to Guatemala on October 10, 2001, based on the Notice of Intent and waiver language on the second page, which Reyes signed.
Reyes reentered unlawfully in 2003; in 2007 he was detained, withdrew a fear-of-persecution claim, and the 2001 removal order was reinstated; he was removed on December 19, 2007.
In 2009 Reyes was indicted for illegal reentry under 8 U.S.C. § 1326(a) and (b); Reyes moved to dismiss the indictment arguing the 2001 order was invalid due to lack of counsel and language barriers, causing prejudice.
The district court denied the motion; Reyes appealed arguing lack of valid waiver and the resulting prejudice; the Ninth Circuit reviews de novo the due-process-based collateral-attack issue under § 1326(d).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Reyes' right to appeal validly waived?	Reyes did not validly waive his right to appeal.	The waiver language on the Notice of Intent sufficed and Reyes waived his rights.	Waiver not validly proven; Reyes did not validly waive his right to appeal.
Did the expedited removal notice violate Reyes' right to counsel and thus due process?	Failure to inform in a language Reyes understood violated due process rights (counsel).	Waiver and notices were adequate; no due-process violation established.	There was a due-process violation of the right to counsel due to language deficiencies.
Is the failure to advise counsel per se prejudicial for § 1326(d)(3) collateral attack?	Failure to advise counsel constitutes per se prejudice.	Prejudice must be shown; not per se for expedited removal.	Prejudice is not presumed; must show actual prejudice.
Did Reyes show actual prejudice via plausible CAT relief grounds in 2001?	Counsel could have pursued CAT deferral of removal.	No plausible CAT relief evidence existed in 2001; relief unlikely.	Reyes failed to demonstrate a plausible claim to CAT relief in 2001.

United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (prejudice required for collateral attacks under § 1326(d))
Mendoza-Lopez v. INS, 481 U.S. 828 (S. Ct. 1987) (right to direct review important for collateral challenges)
United States v. Proa-Tovar, 975 F.2d 592 (9th Cir. 1992) (rejected bright-line prejudice rule; prejudice required)
United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (reaffirmed prejudice plus unfairness standard for § 1326(d))
United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (prejudice and opportunity for judicial review standards)
Ramos, 623 F.3d 672 (9th Cir. 2010) (plausible grounds for relief needed to show prejudice)
Cerda-Pena v. INS, 799 F.2d 1374 (9th Cir. 1986) (counseling rights not per se prejudicial; require prejudice)
Gonzalez v. Ashcroft, 429 F.3d 1252 (9th Cir. 2005) (waiver of appeal must be considered and intelligent)
Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985) (due process rights and counsel implications)