Appellant's petition for panel rehearing is
Defendant Jose Ochoa, a citizen of Mexico, was convicted of conspiracy to export defense articles without a license, 18 U.S.C. § 371, 22 U.S.C. § 2778, and was removed from the United States because of that conviction. When he returned to the United States, he was convicted of illegal reentry in violation of 8 U.S.C. § 1326. In this appeal, he argues that the removal order was invalid because his 18 U.S.C. § 371 conviction for conspiring to violate 22 U.S.C. § 2778 was not a categorical match to the Immigration and Nationality Act's ("INA") aggravated felony or firearms offense categories. Reviewing de novo, United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014), we hold that Defendant was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, Defendant was indicted for violating 18 U.S.C. § 371, the generic conspiracy statute; the object of the conspiracy was a violation of the Arms Export Control Act, 22 U.S.C. § 2778, exporting defense articles without a license. Defendant pleaded guilty to those charges in 1998 and was sentenced to a term of imprisonment. While in federal prison, he was served with a notice to appear in November 1998, charging him with removability. The notice to appear alleged, among other things, that Defendant was convicted on April 6, 1998,
At the hearing before an immigration judge ("IJ") on January 21, 1999, Defendant appeared without a lawyer, though he was offered more time to secure one. At the outset, the IJ explained that Defendant could appeal any decision rendered and provided Defendant with a document correctly explaining his appellate rights. With respect to the underlying conviction, the IJ asked if "some of the things [he was] exporting [were] firearms and ammunition," and Defendant answered, "Yes I was." After reviewing the certified indictment and judgment, the IJ explained that those documents "indicate[d] that between December 4th of 1997 and December 7th of that same year, [Defendant] and others conspired to ship firearms and ammunition from the United States to Mexico," and that the "[vehicle] [Defendant] was in possession of contained 9 firearms and approximately 28,000 rounds of ammunition." The IJ "f[ou]nd that the charge of deportability under section [237(a)(2)(C)] of the [INA] has been sustained" and allowed the government "to amend by pen and ink the charge under 237 to read 101(a)(43)(U)," clarifying that Defendant's conviction was for conspiracy. The IJ found Defendant removable as charged.
After an exchange with Defendant, the IJ concluded: "I don't see that there is any relief available to you." He continued: "Now, you can accept that decision but if you disagree with it, you would have 30 days to appeal it. Did you want to accept my decision or reserve your right to appeal?" Defendant accepted. He served the remainder of his federal prison sentence and was removed to Mexico following his release on April 13, 2001.
In 2014, federal agents discovered Defendant in California; he was indicted for illegal reentry, under 8 U.S.C. § 1326. Defendant moved to dismiss the indictment, arguing that his 2001 removal proceedings violated due process because his prior conviction constituted neither an aggravated felony nor a firearms offense — an argument known as a "collateral attack" on the removal order. The district court denied that motion, Defendant was convicted, and the court sentenced Defendant to 16 months in prison. Following his release, Defendant was removed to Mexico once again. Defendant timely appeals.
A. Availability of Collateral Review
A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of his underlying removal order, because that order serves as a predicate element of his conviction. United States v. Aguilera-Rios, 769 F.3d 626, 629-30 (9th Cir. 2014); see also United States v. Mendoza-Lopez, 481 U.S. 828, 838, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (holding, before enactment of § 1326(d), that due process requires an opportunity to collaterally challenge a removal proceeding "at the very least where the defects... foreclose judicial review of that proceeding"). The mechanism for mounting such a challenge is codified in § 1326(d). To succeed, Defendant must demonstrate that: (1) he has exhausted any administrative remedies that may have been available to seek relief from the order; (2) the deportation proceedings at
As explained below, we conclude that Defendant's statute of conviction was not an aggravated felony. And "§ 1326(d)(1) and (d)(2) [a]re satisfied when the IJ improperly characterized a prior conviction as an aggravated felony and erroneously informed the alien that he was ineligible for discretionary relief." United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1131 (9th Cir. 2013). With respect to § 1326(d)(3), we have explained that, if Defendant "`was removed when he should not have been,' his ... removal was fundamentally unfair, and he may not be convicted of reentry after deportation." Aguilera-Rios, 769 F.3d at 630 (quoting Camacho-Lopez, 450 F.3d at 930). In its original briefing, the government conceded that "[Defendant's] appeal turns on the third prong of this test" and that, if the third prong is satisfied, "his appeal should be granted."
When evaluating whether a defendant "would have had the right to be in the United States, as a lawful permanent resident, but for the IJ's determination that he was removable," we have adopted the view that "statutory interpretation decisions are fully retroactive." Id. at 633 (applying intervening Supreme Court precedent retroactively); see also Pallares-Galan, 359 F.3d at 1103-04 (conducting statutory interpretation and applying it retroactively). As a result, we can identify no bar in 8 U.S.C. § 1326(d) to considering Defendant's challenge on the merits. Here, the § 1326(d) inquiry collapses into a de novo review of Defendant's removability in 1998.
B. Categorical Analysis
Defendant argues that his prior conviction did not support removal. To analyze that question, we apply the categorical approach announced by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its progeny. The analysis proceeds in three steps:
In determining whether the statute of conviction "categorically qualifies as a
Defendant was convicted of generic federal conspiracy in violation of 18 U.S.C. § 371.
Willful violation of this provision is a federal crime. Id. § 2778(c). The Munitions List referenced in § 2778 includes both firearms and ammunition, but also a vast array of other items, including "underwater hardware" and various chemicals and biological materials. 22 C.F.R. § 121.1.
The IJ held that Defendant's conviction constituted two generic offenses, each justifying removability under the INA. First, the IJ held that the crime of conviction was an "aggravated felony," which the INA defines as (among other things) a "conspiracy to commit" "illicit trafficking in firearms or destructive devices (as defined in [18 U.S.C. § 921])." 8 U.S.C. § 1101(a)(43)(U), (C). The referenced provision defines a "firearm" in relevant part as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." 18 U.S.C. § 921(a)(3). Second, the IJ held that Defendant's prior conviction was a "firearm offense[ ]," which includes conspiring to "purchase[ ], sell[ ], offer[ ] for sale, exchang[e], us[e], own[ ], possess[ ], or carry[ ] ... any weapon, part, or accessory which is a firearm." 8 U.S.C. § 1227(a)(2)(C).
The elements of 22 U.S.C. § 2778 "sweep[ ] more broadly" than the elements of the generic federal aggravated felony or firearms offenses. Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). By incorporating the entire Munitions List, § 2778 criminalizes unlicensed export of a broad range of "munitions," such as "underwater hardware"; neither generic federal definition speaks to most of the items on that list. Thus, Defendant's underlying conviction "does not categorically qualify as a proper predicate offense." Arriaga-Pinon, 852 F.3d at 1199; accord United States v. Guillen-Cruz, 853 F.3d 768, 773 (5th Cir. 2017).
The next step requires determining whether Defendant's underlying statute of conviction "contains a single, indivisible set of elements." Arriaga-Pinon, 852 F.3d at 1199. "Only divisible statutes are subject to the modified categorical approach." Sandoval v. Yates, 847 F.3d 697, 704 (9th Cir. 2017). Here, we must decide whether the many items on the Munitions List constitute alternative elements of 22 U.S.C. § 2778, or merely list alternative
We begin by considering the statute's text. See id. We may also consult court decisions interpreting the statute. Mathis, 136 S.Ct. at 2256 (discussing "authoritative sources of state law"); Sandoval, 847 F.3d at 704 ("[A] court looks first to the statute itself and then to the case law interpreting it."). But if these sources are not dispositive, we may "peek at the record documents [for] the sole and limited purpose of determining whether the listed items are elements of the offense." Mathis, 136 S.Ct. at 2256-57 (brackets omitted) (quoting Rendon v. Holder, 782 F.3d 466, 473-74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh'g en banc)). If the text is drafted with alternative elements, effectively creating "several different crimes," Descamps, 133 S.Ct. at 2285 & n.2 (internal quotation marks and ellipsis omitted), the statute is divisible, Mathis, 136 S.Ct. at 2256.
Section 2778(b)(2) provides that "no defense articles or defense services designated by the President [on the Munitions List] may be exported or imported without a license." 22 U.S.C. § 2778(b)(2). Any person who violates § 2778(b)(2), or "any rule or regulation issued under th[at] section," may be fined not more than $1 million or imprisoned for not more than 20 years, or both. Id. § 2778(c). We know of no binding caselaw resolving whether a jury must specifically decide which defense article a § 2778 defendant exported without a license. In an earlier case, we noted that "the elements of an export control violation under 22 U.S.C. § 2778 are as follows: the (1) willful (2) export or attempted export (3) of articles listed on the [Munitions List] (4) without a license." United States v. Chi Mak, 683 F.3d 1126, 1131 (9th Cir. 2012) (citing Kuhali v. Reno, 266 F.3d 93, 104 (2d Cir. 2001)); see also United States v. Covarrubias, 94 F.3d 172, 175 (5th Cir. 1996) (per curiam) (same); United States v. Murphy, 852 F.2d 1, 6 (1st Cir. 1988) (same). Despite our generalized treatment of the "article" element in Chi Mak, the jury charge in that case specifically asked the jurors to find that the defendant had exported "technical data." 683 F.3d at 1132. Because of the ambiguity, that case does not resolve the unanimity question before us. See also United States v. Bishop, 740 F.3d 927, 931 (4th Cir. 2014) (describing a § 2778 indictment charging the specific ammunition that the defendant attempted to export).
Faced with a lack of clarity, we may "peek" at the indictment for insight into the element-or-means distinction.
Because the statute was overbroad and indivisible, Defendant's conviction under 22 U.S.C. § 2778 could not serve as a proper predicate for removal — either as an aggravated felony or a firearms offense. Accordingly, we
GRABER, Circuit Judge, with whom McKEOWN, Circuit Judge, and LYNN, Chief District Judge, join, concurring:
I concur in the opinion because it faithfully applies the law of our circuit. I write separately to express my view that our law with respect to the scope of collateral challenges under 8 U.S.C. § 1326(d) has strayed increasingly far from the statutory text and that we are out of step with our sister circuits' correct interpretation. For that reason, we should rehear this case en banc to correct our course.
The panel opinion sets forth the background of this case. I emphasize only one aspect of the facts. While incarcerated in 1998 after pleading guilty to a one-count indictment for federal conspiracy, Defendant Jose Ochoa was served with a notice to appear. The notice specifically charged that Defendant's conspiracy conviction constituted both an aggravated felony and a firearms offense under the Immigration and Nationality Act. At his 1999 hearing, the immigration judge ("IJ") repeatedly apprised Defendant of his appellate rights,
It was not until 2014, after he was indicted for illegal reentry, that Defendant first challenged the IJ's conclusion that his conspiracy conviction was a categorical match to the aggravated felony and firearms offense provisions in the immigration statutes.
A. The Collateral Attack Provision
Defendant challenges his illegal reentry conviction by invoking the "collateral attack" provision of the illegal reentry statute:
8 U.S.C. § 1326(d). An order is "fundamentally unfair" under (d)(3) if "(1) [a defendant's] due process rights were violated by defects in [the] underlying deportation proceeding, and (2) [the defendant] suffered prejudice as a result of the defects." United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000) (internal quotation marks omitted). Subsection (d) was "added in direct response to [United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)]." United States v. Barajas-Alvarado, 655 F.3d 1077, 1082 n.6 (9th Cir. 2011). Prior to Mendoza-Lopez, it was not clear under what circumstances, if any, an illegal reentry defendant could challenge the underlying "order of deportation" when the "prior deportation is an element of the crime." 481 U.S. at 833, 107 S.Ct. 2148. That decision made clear that due process requires "some meaningful review of the administrative proceeding," id. at 837-38, 107 S.Ct. 2148, which the statute now affords.
B. The Meaning of § 1326(d)(1) and (2)
Section 1326(d) places the burden on the alien to demonstrate three things in order to challenge collaterally the validity of the deportation order underlying a charge of illegal reentry. By using the conjunction "and," Congress signified that the alien must establish that all three conditions are met. See United States v. Soto-Mateo, 799 F.3d 117, 120 (1st Cir. 2015) (noting that "[t]he elements of 1326(d) are conjunctive, and an appellant must satisfy all of those elements in order to prevail"), cert. denied, ___ U.S. ___, 136 S.Ct. 1236, 194 L.Ed.2d 230 (2016); United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003) (same); United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir. 2002) (same).
The text of the statute plainly contains two different kinds of provisions. As noted, paragraph (d)(3) is substantive. A deportation order may be challenged if the entry of the order was "fundamentally unfair," that is, if it violated due process and prejudiced the alien. Garcia-Martinez, 228 F.3d at 960.
But paragraphs (d)(1) and (2) describe purely procedural criteria. The alien
Here, it is clear that Defendant cannot fulfill the terms of the statute. He had an opportunity to seek administrative and judicial review. He knew that he had the opportunity, because the IJ explained his appellate rights accurately, both orally and in writing. An appeal would have allowed the agency and the courts to consider on the merits the arguments that he now makes. Whether those arguments would have succeeded at the time is beside the point; the statute disallows a collateral attack if Defendant had the opportunity to obtain administrative and judicial review and thus the opportunity to challenge the categorization of his conviction as an aggravated felony and a firearms offense. He simply decided to waive his right to appeal.
As I will explain, though, our court — unlike our sister circuits — has ignored the procedural focus of paragraphs (d)(1) and (2) and essentially read them out of the statute. Partly as a consequence of failing to demand adherence to (d)(1) and (2), our court has made a second error: labeling as "fundamentally unfair" a decision that was correct under extant precedent but as to which the governing law changed later. The history of how the demise of paragraphs (d)(1) and (2) occurred, step by step like a frog subjected to increasingly hot water, will be recounted below.
C. Discretionary Relief
We have long held that, when an IJ erroneously informs an alien that he or she is ineligible for discretionary relief, the first two prongs of § 1326(d) are satisfied and that, under § 1326(d)(3), the alien's due process rights were violated; the remaining question is whether the alien has demonstrated the prejudice required under § 1326(d)(3). For example, in United States v. Muro-Inclan, 249 F.3d 1180, 1181 (9th Cir. 2001), an illegal reentry defendant was not informed of his "possible eligibility for a waiver of deportation" at his removal hearing. On collateral attack of that removal order, we held that "a waiver is not `considered and intelligent' when `the record contains an inference that the petitioner is eligible for relief from deportation,' but the Immigration Judge fails to `advise the alien of this possibility and give him the opportunity to develop the issue.'" Id. at 1183 (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). In that case, despite the lack of a knowing and intelligent appellate waiver, we could not call the order "fundamentally unfair" under § 1326(d)(3). Id. at 1185-86.
Even in this analysis, our court is an outlier. Several years ago, we noted that our precedents characterizing "an IJ's failure to inform an alien of possible eligibility for discretionary relief [as] a due process violation" take a minority position. United States v. Lopez-Velasquez, 629 F.3d 894, 897 n.2 (9th Cir. 2010) (en banc). Although we and the Second Circuit hold this view, the Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits do not appear to consider such failures to be due process violations. Id.
D. Plenary Legal Review
Of greater concern to me, however, are the significant additional steps that we have taken, beyond constitutionalizing the right to be informed of discretionary relief. In particular, we have made two innovative jurisprudential moves. First, our precedents permit the retroactive application of intervening changes in law to an underlying removal proceeding, so that the IJ's then-correct decision is rendered incorrect in hindsight — even when the change in law is announced in our own opinion adjudicating the collateral attack. Second, we also have permitted an illegal reentry defendant to attack collaterally not just the failure of the IJ to explain the potential availability of discretionary relief, but also the very ground on which the alien was removed. In so doing, we characterize a removal order as "fundamentally unfair" under 8 U.S.C. § 1326(d)(3) — finding that the order violates due process and causes prejudice — merely because we have subsequently identified a legal error. Those two innovations combine to compel the result in this case.
Move number one. In United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004), the defendant in an illegal reentry appeal litigated both the exhaustion issue under § 1326(d) and the question whether his underlying conviction actually constituted an aggravated felony under the modified categorical approach. The defendant had been convicted of several state crimes, and the INS initiated removal proceedings. Id. at 1092. The IJ ruled that one of the defendant's convictions was an aggravated felony, and the defendant waived his right to appeal. Id. at 1093. After his removal, the defendant was arrested and charged with illegal reentry. Id. He argued that his conviction for a state misdemeanor charge was not an aggravated felony as the IJ had declared. Id.
We held that the defendant's waiver of his right to appeal "was not `considered and intelligent' because the IJ erroneously informed him that he was not eligible for relief from deportation on account of his 1999 state misdemeanor [conviction]." Id. at 1096. We reasoned that, "[w]here `the record contains an inference that the petitioner is eligible for relief from deportation,' but the IJ fails to `advise the alien of this possibility and give him the opportunity to develop the issue,' we do not consider an alien's waiver of his right to appeal his deportation order to be `considered and intelligent.'" Id. (quoting Muro-Inclan,
In effect, we held that a substantive error in the IJ's legal analysis — raised and discovered only on collateral attack — satisfies the first two prongs of § 1326(d). Pallares-Galan, 359 F.3d at 1104. That result is difficult to square with the requirements of § 1326(d)(1) and (2), which are designed to require that merits arguments be presented to the IJ and argued on appeal in the first instance.
In move number two, we have gone further still. When a collateral challenge implicates an alien's removability itself, we subsume the "fundamental unfairness" prong of § 1326(d)(3) entirely within our retroactive, de novo legal analysis. For example, in United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006), a legal permanent resident was convicted of "vehicular manslaughter with gross negligence, in violation of California Penal Code section 191.5(a)," served with a notice to appear alleging removability for an aggravated felony, and ordered removed; he knew about, but waived, his right to appeal. When the defendant was later found in the United States and charged with illegal reentry under § 1326, he moved to dismiss the indictment, arguing that intervening legal developments clarified that his conviction was not for an aggravated felony. Id. Citing Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005) — decisions rendered six and seven years after the defendant's removal order issued — we agreed. Camacho-Lopez, 450 F.3d at 929-30. We noted the government's concession that those later decisions applied to the 1998 deportation hearing and that the defendant was both "excused from the exhaustion requirement" and "deprived of a meaningful opportunity for judicial review" within the meaning of § 1326(d)(1) and (2). Id. at 930. Addressing the final "fundamentally unfair" prong in § 1326(d)(3), we held that, because the defendant was charged with removability "only for having committed an aggravated felony," and intervening cases clarified that his crime was not an aggravated felony, he "was removed when he should not have been and clearly suffered prejudice." Id. We reversed and remanded with instructions to dismiss the indictment. Id. The intervening change in law satisfied the § 1326(d)(3) requirement that the defendant show a due process violation, and we assumed prejudice from the error.
Reading the cases together, the law of our circuit is that an illegal reentry defendant may invoke later-decided cases to attack an IJ's finding of removability.
E. Other courts' approaches
Other circuits have not eroded § 1326(d) to such a degree. For example, in Soto-Mateo, the First Circuit noted that, "when `performing the collateral attack analysis under § 1326(d), an inquiring court ordinarily should address the initial [(d)(1)] test of exhaustion of administrative remedies before going on to the other two tests.'" 799 F.3d at 120 (brackets omitted) (quoting United States v. DeLeon, 444 F.3d 41, 45 (1st Cir. 2006)). The court held that the defendant "did not exhaust available administrative remedies" before the IJ, "waived his right to appeal," and could not avoid that default by "asserting that his waiver was neither knowing nor intelligent." Id. He "plainly knew what he was doing" when he waived his appellate rights. Id. at 122. Addressing the argument that the defendant would never have waived his appeal "if he had known that he was not removable as an aggravated felon," the court held, first, that the unsettled state of the law on whether his conviction was an aggravated felony did not matter: "A waiver of rights based on a reasonable interpretation of existing law is not rendered faulty by later jurisprudential developments." Id. at 123 (citing Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The court denied this challenge without "reach[ing] the question of whether he satisfied either the judicial review requirement of [§] 1326(d)(2) or the fundamental fairness requirement of [§] 1326(d)(3)." Id.
Other courts also read the § 1326(d) requirements differently than we do. See United States v. Gil-Lopez, 825 F.3d 819, 820 (7th Cir. 2016) (refusing to consider an argument that the conviction was not for an aggravated felony because a § 1326 defendant signed an appellate waiver and thus did not exhaust remedies); United States v. Villanueva-Diaz, 634 F.3d 844, 851-52 (5th Cir. 2011) (rejecting a collateral attack because, though intervening decision made the conviction not a removable offense, the "deportation proceedings were not `fundamentally unfair'"); United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005) (refusing to entertain a collateral attack because "[a] subsequent change in the law does not render [the defendant's] waiver of his right to appeal `not considered or intelligent'"); United States v. Rivera-Nevarez, 418 F.3d 1104, 1105-06 (10th Cir. 2005) (agreeing with the defendant that later-decided statutory interpretation cases were "fully retroactive," but holding that the defendant still could not show he was deprived of opportunity for judicial review under § 1326(d)(2), so the IJ's legal error concerning removability
This state of affairs is especially surprising because, elsewhere, we readily enforce appellate waivers. In criminal appeals, for example, we foreclose challenges to a sentence when the defendant waived the right to appeal the Sentencing Guidelines determination, because that the alternative "would render meaningless the express waiver of the right" to bring such a challenge. United States v. Medina-Carrasco, 815 F.3d 457, 462 (9th Cir. 2016). Even if a Guidelines calculation was seemingly incorrect, setting aside an explicit waiver "would nullify the waiver based on the very sort of claim it was intended to waive." Id. (quoting United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007)). "We will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit." Id. at 462-63 (internal quotation marks and emphasis omitted).
By permitting collateral legal challenges to an IJ's removability determination in the way that we do, we retroactively label erroneous-only-in-hindsight (but unappealed) categorical determinations as "fundamentally unfair," and as satisfying all three requirements of § 1326(d). See, e.g., Camacho-Lopez, 450 F.3d at 930. Our precedent has the effect of nullifying the procedural requirements of § 1326(d)(1) and (2) and creating in their place a new, substantive right to retroactive de novo review, thereby undermining the finality interests the statute was designed to protect. These anomalies call for en banc consideration to bring our jurisprudence in line with the statute and the other circuits.