Case Information
*2
BERZON, Circuit Judge:
Jorge Aguilera-Rios (“Aguilera”), a citizen of Mexico, was convicted of a California firearms offense, removed from the United States on the basis of that conviction, and, when *3 he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. § 1326. He contends that his prior removal order was invalid because his conviction under California Penal Code § 12021(c)(1) was not a categorical match for the federal firearms aggravated felony. We agree that he was not originally removable as charged, and sо could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.
I.
Aguilera entered the United States without inspection at the age of five to live with his parents, who were lawful permanent residents. He became a lawful permanent resident in 2000. Two years later, he was convicted of unlawful 4
firearms possession in violation of California Penal Code § 12021(c)(1).
In 2005, Aguilera was served with a Notice to Appear, alleging that he had been convicted of a crime involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), and an aggravated felony firearms offense, 8 U.S.C. § 1227(a)(2)(C), and so was subject to removal. One week later, Aguilera appeared before an Immigration Judge (“IJ”). He admitted that he had been convicted of unlawful firearms activity in violation of California Penal Code § 12021(c)(1), but did not concede removability. The IJ nonetheless held Aguilera “subject to removal as charged,” and denied him any relief from removal. Aguilera was removed to Mexico.
Six years later, Aguilera was charged with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Aguilera moved to dismiss the indictment under § 1326(d), arguing that, during the 2005 removal proceedings, the IJ did not meaningfully advise him of his opportunity to apply for voluntary departure. The district court denied the motion, and Aguilera was found guilty of illegal reentry. Aguilera was sentenced to time served, and has since been removed to Mexico.
*4 On April 23, 2013, after Aguilera filed his opening brief in this case, the Supreme Court issued its decision in Moncrieffe v. Holder , 133 S. Ct. 1678 (2013), concerning application of the categorical approach in immigratiоn cases. Although that case involved a marijuana conviction, the [1] This section was replaced by California Penal Code § 29805, effective January 1, 2012. For clarity, we refer to the statute as California Penal Code § 12021(c)(1).
majority opinion addressed an argument by the Solicitor General that, under the Court’s analysis, “a conviction under any state firearms law that lacks . . . an exception [for antique firearms present in the federal firearms statute] will be deemed to fail the categorical inquiry.” at 1693. Aguilera moved to file a substitute opening brief in this case, arguing that, after , his 2005 removal order was invalid for a second reason (in addition to the previously asserted due process violation): Aguilera was never deportable as charged because the California statute of conviction lacked an antique firearms exception. We accepted the substitute brief, and the government responded to Aguilera’s arguments in its answering brief.
We review Aguilera’s collateral attack on his 2005
removal order de novo.
See United States v. Lopez-
Velasquez
,
II.
“A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has a due process right to bring a collateral attack challenging the validity of his underlying deportation order because it serves as a predicate element of his conviction.” United States v. Melendez-Castro , 671 F.3d 950, 953 (9th Cir. 2012) (per curiam) (citation omitted). Section 1326(d) expressly provides for such collateral attacks on an underlying deportation order, but establishes limits on them. A defendant must demonstrate that: (1) he exhausted all administrative remedies available to appeal his prior removal order; (2) the prior removal proceedings “improperly deprived [him] of the opportunity for judicial review;” and (3) the entry of the prior removal order was “fundamentally unfair.” 8 U.S.C. § 1326(d).
6 U NITED S TATES V . A GUILERA -R IOS The government recognizes that the first two elements of § 1326(d) have been met. It maintains, however, that Aguilera “cannot meet the last element, i.e., ‘fundamental unfairness.’”
“An underlying removal order is ‘fundamentally unfair’
if (1) an alien’s ‘due process rights were violated by defects
in the underlying deportation proceeding,’ and (2) ‘he
suffered prejudice as a result of the defects.’”
United States
v. Pallares-Galan
, 359 F.3d 1088, 1095 (9th Cir. 2004)
(citation omitted). If Aguilera “was removed when he should
not have been,” his 2005 removal was fundamentally unfair,
and he may not be convicted of reentry after deportation.
United States v. Camacho-Lopez
,
III.
Aguilera’s central contention is that the generic “federal definition of a ‘firearm’ specifically exempts antique firearms, while the California definition of a firearm does not. Thus, a person may be convicted under Cal[infornia] Penal Code § 12021 for conduct that does not fall within the firearms ground of removal.” The government asks us not to reаch this argument on the ground that Aguilera waived it by failing to raise it in the district court. In addition, the government argues that Moncrieffe cannot be retroactively applied to invalidate a removal that was proper under the law at the time it was ordered. We address each of these points in turn.
A.
As to waiver, the government contends that Aguilera’s failure to raise his new argument “before trial” as part of his motion to dismiss the indictment effected a waiver pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). That rule provides that “a motion аlleging a defect in the indictment or information” “must be raised before trial.” Fed. *6 R. Crim. P. 12(b)(3)(B).
We decline to find such a waiver here. Rule 12(e) sets
forth specifically the circumstances under which an argument
is waived. It provides that “[a] party waives any Rule
12(b)(3) defense, objection, or request not raised by the
deadline the court sets [for pretrial motions].” Fed. R. Crim.
P. 12(e). But Rule 12(e) further indicates that “[f]or good
cause, the court may grant relief from the waiver.” On
appeal, we have held that “‘even issues that are deemed
waived [in the district сourt] under Rule 12 may be addressed
by
this
court and relief may be granted’ where good cause is
shown for the party’s failure to raise the argument earlier.”
United States v. Anderson
,
Prior to , Aguilera would have had no reason
to challenge whether he was properly removed for a “firearms
offense.” As we explain below, this Court’s caselaw prior to
Moncrieffe
foreclosed the argument he now makes.
See Gil
v. Holder
,
Moreover, Aguilera demonstrated diligence by moving in this Court within a month after was decided to substitute his opening brief. And thе government had a full opportunity to respond in written briefing and at oral argument to this purely legal issue. Aguilera has therefore shown “good cause” to excuse his failure to raise this argument in the district court. We decline to find it waived.
B.
The government next contends that cannot be
retroactively applied to invalidate Aguilera’s 2005 removal
order. It cites
United States v. Vidal-Mendoza
,
Vidal-Mendoza concerned the scope of an IJ’s duty to advise a noncitizen of his eligibility for discretionary relief. It held that a noncitizen’s due process rights are not violated if an IJ informs him, based on controlling law at the time of the removal hearing, that he is ineligible for relief, even if post-removal changes in the law would have altered that analysis. Id . at 1016–17. Noting that “an IJ need not anticipate future ‘change[s] in law,’” Vidal-Mendoza suggested that applying post-removal precedent on collateral review would violate “our long-stated principle that ‘IJs are not expected to be clairvoyant’ when discharging their duty to inform.” Id. at 1017 (quoting Lopez-Velasquez , 629 F.3d at 900–01) (alteration in original).
Vidal-Mendoza and its predecessor, Lopez-Velasquez , do not apply here. Those cases asked what law applies when evaluating whether an IJ violated its duty to inform the noncitizen of potential avenues for relief. This case concerns not the duty to inform the noncitizen of his eligibility for relief in a removal proceeding, but whether he was removable at all.
In a similar case, the Tenth Circuit concluded that
“[d]ecisions of statutory interpretation are fully retroactive
because they do not change thе law, but rather explain what
the law has always meant.”
United States v. Rivera-Nevarez
,
418 F.3d 1104, 1107 (10th Cir. 2005) (citing
Rivers v.
Roadway Express Inc.
, 511 U.S. 298, 312–13 (1994) (“A
judicial construction of a statute is an authoritative statement
of what the statute meant before as well as after the decision
of
the case giving rise
to
that construction.”)).
Rivera-Nevarez
concerned whether the Supreme Court
decision in
Leocal v. Ashcroft
,
We reached the same conclusion as the Tenth Circuit in
Camacho-Lopez
. Like
Rivera-Nevarez
,
Camacho-Lopez
concerned a pre-
Leocal
removal that was invalid after
Leocal
.
Camacho-Lopez
retroactively applied
Leocal
, explaining that
“the government concedes that
Leocal—
a substantive
interpretation of ‘crime of violence’ under 18 U.S.C.
§ 16—applies to Camacho’s 1998 deportation hearing[,]” that
“Camacho’s Notice to Appear charged him as removable only
for having committed an aggravated felony[,]” and that after
Leocal
, “Camacho’s prior conviction did not fit that
definition[.]”
Camacho-Lopez
,
Camacho-Lopez
has since been cited by district courts
within the Ninth Circuit for the proposition that
any
post-
removal substantive interpretation of a “crime of violence” or
“aggravated felony” provision is fully retroactive on
collateral review.
See, e.g.
,
United States v. Dominguez
, No.
CR12-879 CAS,
*9 Unlike Vidal-Mendoza and Lopez-Velasquez , Gomez did not concern the IJ’s duty to inform. Gomez nonetheless considered only the federal law “at the time [Gomez] was ordered deported in Januаry 2006” in determining “whether [the] alien was eligible for relief from deportation.” Id . at *10 (emphasis added). Gomez did not, however, involve application of post-removal precedent on collateral review where that precedent would render a noncitizen not removable ; Camacho-Lopez did. Indeed, Gomez specifically distinguished Camacho-Lopez , noting that “[i]t concerned whether [ Leocal ] was nonetheless applicable on collateral review to determine whether he was subject to removal as charged—not, as in this case, whether, although removable, he was entitled to discretionary relief.” Id. at *10 n.12 (distinguishing “relief from removal” from “removability”).
Moreover, whether or not one regards
Camacho-Lopez
as
binding precedent on that point,
[2]
there is good reason to
distinguish between discretionary relief, as in
Gomez
, and
grounds for removability for purposes of collateral review of
removal proceedings. Section 1326 is concerned with
whether a noncitizen has reentered after being “denied
admission, excluded, deported, or removed.” 8 U.S.C.
§ 1326(a). Where a noncitizen is in fact removable, the
denial of an opportunity to apply for a voluntary departure,
the discretionary relief at issue in
Gomez
, does not implicate
[2]
Camacho-Lopez
mentioned that the government “concede[d]”
Leocal
’s
retroactive application. 450 F.3d at 930. To say that something was
conceded is ordinarily to indicate that it is so. To note a concession is
different from stating, as we often do, that a legal argument was not
raised, or that we are assuming, but not deciding, a particular legal
standard.
See, e.g.
,
In re Pac. Pictures Corp.
,
Where relief is discretionary, it may not have been
accorded, requiring an after-the-fact inquiry comparing the
equities in a particular case to those in similar cases.
See,
e.g.
,
United States v. Rojas-Pedroza
,
Where that is the question, the usual rule that statutory interpretation decisions are fully retroactive should apply. 13 Otherwise, an individual who had the right to remain here as a legal resident — and to return to this country if he leaves — but was removed as a result of a legal error, would be subject to criminal conviction and incarcerated for returning. Such an individual is in effect being criminally punished for the government’s legal mistake. To maintain via enforcement proceedings the finality of an otherwise proper removal order is one thing; to impose criminal sanctions under these circumstances is quite another.
We therefore reject the government’s position that we cannot consider in evaluating whether Aguilera was removable as charged. We proceed to consider Aguilera’s challenge on the merits.
IV.
Federal law makes deportable “[a]ny alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying . . . any . . . firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law.” 8 U.S.C. § 1227(a)(2)(C). Section 921(a)(3) defines the term “firearm,” stating, inter alia, that “[s]uch term does not include an antique firearm.” 18 U.S.C. *11 § 921(a)(3).
[3] We note that a determination by this Court on collaterаl review that a noncitizen’s conviction was not for a federal aggravated felony offense would not affect the finality of the prior removal. See 8 C.F.R. § 1003.23(b)(1). It could, however, have other immigration consequences. See, e.g. , 8 U.S.C. § 1182(h).
Aguilera asserts that after
Moncrieffe
, any conviction
under a state firearms statute lacking an exception for antique
firearms is not a categorical match for the federal firearms
ground of removal. We agree. And because is
“clearly irreconcilable” with this Court’s prior case law,
particularly in
Gil
, we must follow
Moncrieffe
not
Gil
.
See
Miller v. Gammie
,
Gil
held that “in conducting the categorical analysis, we
do not consider the availability of affirmative defenses; the
fact that there may be an affirmative defense under the
federal statute, but not under the state statute of conviction,
does not mean that the state conviction does not fall
categorically within the federal statute.”
A bit of background on
Moncrieffe
is necessary to
understand its effect on our case law: Moncrieffe, a lawful
permanent resident, pleaded guilty under Georgia law to
possession of marijuana with intent to distribute. ,
U NITED S TATES V . A GUILERA -R IOS
15
aggravated felony.
Moncrieffe
,
The Court considered whether Moncrieffe’s conviction
necessarily involved facts equating to the aggravated felony
of “‘illicit trafficking in a controlled substance,’” which
“encompasses all state offenses that ‘proscrib[e] conduct
punishable as a felony under [the CSA].’”
Id.
at 1685
(alteratiоn in original) (citations omitted). “[T]o satisfy the
categorical approach, a state drug offense must meet two
conditions: [i]t must ‘necessarily’ proscribe conduct that is an
offense under the CSA, and the CSA must ‘necessarily’
prescribe felony punishment for that conduct.”
Id.
thus reaffirmed a “core feature of the categorical
approach: its focus on the minimal conduct that would satisfy
the
statutory definition
of the offense of conviction.”
Albino-Loe
,
Possession with intent to distribute was clearly an offense under the CSA, so the key question in Moncrieffe was whether that conduct was punishable as а felony or misdemeanor. The least culpable conduct (e.g., sharing a small amount of marijuana for no remuneration) would result in conviction under the Georgia statute, but trigger only misdemeanor punishment under the CSA. “So Moncrieffe’s [state] conviction could correspond to either the CSA felony or the CSA misdemeanor.” Moncrieffe , 133 S. Ct. at 1686–87. Moncrieffe held that “[a]mbiguity on this point means that the conviction did not ‘necessarily’ involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical apprоach, then, Moncrieffe was not convicted of an aggravated felony.” at 1687. ’s response to an argument by the Solicitor *13 General in that case is of critical importance here:
[T]he Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like § 1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for ‘antique firearm[s],’ 18 U.S.C. § 921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But [ Gonzales v. ] Duenas–Alvarez requires that there be “а realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U.S. [183,] 193 [(2007)]. To defeat the categorical comparison in this manner, a noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms. at 1693 (emphasis added).
Aguilera argues that this analysis governs here, and because California does prosecute cases involving antique firearms under California Penal Code § 12021(c)(1), his conviction is not a categorical match for the federal aggravated felony. This argument is consistent not only with the express language of ’s antique firearms discussion, quoted above, but also with the opinion’s overall analysis and holding.
Moncrieffe
requires us to presume that Aguilera was
convicted of an offense under California Penal Code
§ 12021(c)(1) using an antique firearm, because California
actually prosecutes people for such conduct.
See, e.g.
,
People
v. Charlton
, No. A122842,
Moncrieffe
’s overall analysis also supports the conclusion
that California Penal Code § 12021(c)(1) and the federal
firearms aggravated felony offense are not a categorical
match. As this Court recently recognized,
Moncrieffe
clarified that a definitional element of a criminal offense, like
the antique firearms exception, must be considered for
purposes of the categorical approach, even if affirmative
defenses are not.
See Albino-Loe
, 747 F.3d at 1213–14.
squarely rejected the Solicitor General’s argument
in that case that “the categorical approach is concerned only
with the ‘elements’ of an offense,” not a definitional element
like § 841(b)(4), the social marijuana sharing exception, or
§ 921(a)(3)(D), the antique firearm exception.
In , this holding meant that a state conviction must establish that the offense did not involve social sharing of a small quantity of marijuana to be a categorical match. In this case, it would mean establishing that the offense did not involve an antique firearm. As we explained in Albino-Loe ,
the antique firearms exception appears in 18 U.S.C. § 921, a section titled “Definitions.” See 18 U.S.C. § 921(a)(3) (“The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or *15 may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm .” (emphasis added)). One cannot know what conduct constitutes a firearms offense without knowing the definition of “firearm,” which excludes antique firearms.
Moncrieffe
further clarified that these
definitional
elements must be considered regardless of which party would
bear the burden of proof in a criminal prosecution. In
, the Solicitor General noted that in a criminal
prosecution, the government “need not negate the § 841(b)(4)
factors[;] . . . [i]nstead, thе burden is on the defendant to show
that he qualifies” for misdemeanor treatment under
§ 841(b)(4).
Moncrieffe also reiterated that in evaluating whether there is a categorical match, “we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized.” 133 S. Ct. at 1684 (alteration in original) (citation omitted). In that case, doing so mеant presuming that the defendant had shared a small quantity of marijuana for no remuneration — since Georgia actually prosecuted people for such conduct. The same is true of the antique firearm exception. Moncrieffe requires us to presume that Aguilera was convicted of an offense under California Penal Code § 12021(c)(1) using an antique firearm, as long as California actually prosecutes people for such conduct — which, as we have seen, it does.
In sum, California Penal Code § 12021(c)(1) punishes anyonе who “owns, purchases, receives, or has in possession or under custody or control, any firearm” within ten years of a prior conviction for certain misdemeanors. It does not have an antique firearms exception, and California prosecutes for offenses involving antique firearms. A conviction under California Penal Code § 12021(c)(1) is therefore not a categorical match for the federal aggravated felony “firearms offense.” “Because the statute is missing an element of the[ ] generic crime[ ], our inquiry ends here—we do not undertake [4] We are not holding that Gil ’s distinction between affirmative defenses and elements of a crime is invalid for all categorical analyses. Rather, we read as applying particularly to definitional provisions, and as holding that as to such provisions, the allocation of the burden of proof is not relevant to a categorical analysis.
a modified categorical analysis.”
Gomez
,
The government concedes that Aguilera’s conviction was
not for a “crime of moral turpitude” — the other potential
ground of removal. As a result, there was no legal basis for
his 2005 removal order. As Aguilera “was removed when he
should not have been,” he “clearly suffered prejudice.”
*17
Camacho-Lopez
,
A valid prior removal order “serves as a predicate element of [Aguilera’s] conviction” for illegal reentry under § 1326. Melendez-Castro , 671 F.3d at 953. As Aguilera’s 2005 removal order was invalid, we reverse his conviction.
REVERSED. [5] As we reverse Aguilera’s conviction on this basis, we need not consider his alternative argument that the IJ violated due process by not affording him a meaningful opportunity to apply for pre-conclusion voluntary departure.