United States v. Victor Raya-Vaca, 2014 U.S. App. LEXIS 21374

Background

Raya-Vaca, a Mexican national who entered the U.S. in July 2011 by crossing the border, was placed in expedited removal under 8 U.S.C. § 1225 and ordered removed after a Border Patrol agent prepared a sworn statement and a Notice and Order of Expedited Removal.
In December 2012 Raya-Vaca was charged under 8 U.S.C. § 1326 for illegal reentry based on the 2011 expedited removal order. He moved to dismiss, collaterally attacking the 2011 order under 8 U.S.C. § 1326(d).
Raya-Vaca alleged the inspecting officer failed to comply with 8 C.F.R. § 235.3(b)(2)(i): the officer did not advise him of the charge of inadmissibility and did not read (or permit him to read) the sworn statement. Raya-Vaca declared he did not understand what he had signed.
The district court assumed a due process violation but held Raya-Vaca could not show prejudice because it was implausible an immigration official would have granted withdrawal of application for admission. Raya-Vaca entered a conditional plea and appealed.
The Ninth Circuit held (1) Raya-Vaca had entered the United States and thus was entitled to Fifth Amendment due process protections; (2) the regulatory duties to give notice and allow review of the sworn statement protect core due process rights and were not followed; and (3) Raya-Vaca showed plausible grounds for relief (withdrawal of application for admission), so he suffered prejudice. The § 1326 conviction reversed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Raya-Vaca, having crossed into the U.S., was entitled to Fifth Amendment due process in expedited removal	Due process applies because he had effected entry into the U.S.	Government treated him as an "applicant for admission" subject to expedited removal rules	Court: Entry occurred; Fifth Amendment protections apply to those who have entered the U.S.
Whether the inspecting officer violated due process by failing to advise of the charge and by not reading or allowing review of the sworn statement per 8 C.F.R. § 235.3(b)(2)(i)	Failure to advise and to read the statement denied core due process notice and opportunity to respond	Government did not meaningfully dispute the factual claim and argued any regulatory lapse required a separate prejudice showing	Court: The regulation protects fundamental due process; the officer violated it; no independent prejudice showing required to establish the due-process violation.
Whether Raya-Vaca was deprived of judicial review and exhausted administrative remedies	Expedited removal precluded appeal; statutory scheme left no meaningful administrative or judicial review	Government conceded no administrative remedies or appeal existed	Court: Raya-Vaca exhausted remedies and was deprived of judicial review under § 1225(b) scheme.
Whether Raya-Vaca suffered prejudice (had plausible grounds for relief) so the removal order was "fundamentally unfair" under 8 U.S.C. § 1326(d)	He plausibly could have obtained withdrawal of application for admission given family ties, humanitarian considerations, and DHS statistics showing substantial withdrawal grants	Government argued recidivism, alleged smuggling, and prior removal made withdrawal implausible	Court: Considering the INS Field Manual factors and case-specific evidence, Raya-Vaca showed a plausible basis for withdrawal; prejudice established.

Key Cases Cited

Zadvydas v. Davis, 533 U.S. 678 (2001) (Due Process Clause applies to aliens who have entered the United States)
Mathews v. Diaz, 426 U.S. 67 (1976) (Fifth Amendment protects all persons within U.S. jurisdiction, including aliens)
Barajas-Alvarado v. Holder, 655 F.3d 1077 (9th Cir. 2011) (framework for assessing plausibility of withdrawal of application for admission; reliance on INS Inspector’s Field Manual)
Ubaldo-Figueroa v. Gonzales, 364 F.3d 1042 (9th Cir. 2004) (right to collaterally attack removal order underlying § 1326 charge)
Jimenez-Marmolejo v. INS, 104 F.3d 1083 (9th Cir. 1996) (prejudice requirement for collateral attack under § 1326)
United States v. Caceres, 440 U.S. 741 (1979) (distinguishing regulatory violations that do and do not implicate constitutional rights)
Yamataya v. Fisher, 189 U.S. 86 (1903) (historical due process protection for aliens who have entered)
Landon v. Plasencia, 459 U.S. 21 (1982) (recognition of strong individual interest in rejoining immediate family)