United States v. Noe Arias-Ordonez ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10259
Plaintiff-Appellant,
v.  D.C. No.
3:07-cr-00738-MMC
NOE ARIAS-ORDONEZ,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
October 9, 2009—San Francisco, California
Filed March 8, 2010
Before: Mary M. Schroeder and Marsha S. Berzon,
Circuit Judges, and Milton I. Shadur,* District Judge.
Opinion by Judge Schroeder
*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
3615
3618 UNITED STATES v. ARIAS-ORDONEZ
COUNSEL
Owen P. Martikan, San Francisco, California, for the plaintiff-
appellant.
Elizabeth M. Falk, San Francisco, California, for the
defendant-appellee.
OPINION
SCHROEDER, Circuit Judge:
This government appeal arises in the context of an appar-
ently routine prosecution for reentry after removal under 8
U.S.C. § 1326 that turned out to be anything but routine. The
alien did everything he was instructed to do to effectuate his
removal, after it had been ordered in absentia. He even sent
his mother to report for removal in his place while he
obtained proper identification. But the order instructing him
to report for removal misinformed him that he had no admin-
istrative remedies and he was never told that he had a right to
reopen to seek voluntary departure. The government does not
contest the district court’s ruling that the flaws in the underly-
ing removal prejudiced the alien. The government argues,
however, that the subsequent summary reinstatements of the
flawed removal can support the criminal indictment for illegal
reentry. We think not and affirm the district court’s dismissal
of the indictment.
BACKGROUND
Noe Arias-Ordonez is a citizen of Mexico who has lived in
this country since the age of ten and now has a United States
UNITED STATES v. ARIAS-ORDONEZ 3619
citizen child. He was convicted in 2002 of misdemeanor pos-
session of a controlled substance and placed in removal pro-
ceedings. His mother posted a $5000 bond to secure his
release and informed ICE officials of his address. Just before
his release from detention, Arias-Ordonez received a notice to
appear at a removal hearing, but the notice did not state the
date it would take place. That information was not sent for
another week, when the clerk at the immigration court sent
the notice by regular mail. The government does not dispute
that Arias-Ordonez never received it. He was removed in
absentia on June 6, 2003.
ICE sent the subsequent order to report for removal by cer-
tified mail the following October, and Arias-Ordonez did
receive it. The order to report said:
As you know, following a hearing in your case you
were found removable and the hearing officer has
entered an order of removal. A review of your file
indicates that there is no administrative relief which
may be extended to you, and it is now incumbent on
this Service to enforce your departure from the
United States.
The statement that there were no administrative remedies
available was not a true statement, because an alien ordered
removed in absentia has a statutory right to seek to reopen his
case and petition for relief. See 8 U.S.C. § 1229a(b)(5)(C)(ii);
8 C.F.R. § 1003.23(b)(4)(ii).
When Arias-Ordonez nevertheless reported for removal to
comply with the order, he was originally turned away for lack
of proper identification. He complied with the instructions for
removal so assiduously that he sent his mother to tell the
authorities he was coming, while he retrieved his ID. The
authorities eventually told him to return the next day, and
when he did, he was promptly removed.
3620 UNITED STATES v. ARIAS-ORDONEZ
Because Arias-Ordonez was no longer in this country, he
no longer had any legally recognized right to petition for
reopening. See 8 C.F.R. § 1003.2(d) (“A motion to reopen or
a motion to reconsider shall not be made by or on behalf of
a person who is the subject of exclusion, deportation, or
removal proceedings subsequent to his or her departure from
the United States.”); Singh v. Gonzales, 412 F.3d 1117, 1120-
21 (9th Cir. 2009) (“The Board interpreted [8 C.F.R.
§ 1003.2(d)] to mean that any time a petitioner files a motion
to reopen after departing the country, the motion is barred.”).
After his original removal, Arias-Ordonez repeatedly
returned to this country. Each time, the government in sum-
mary proceedings reinstated the original removal order and
sent him back to Mexico, for a total of seven reinstatements.
Finally, in 2007, the United States indicted Arias-Ordonez
pursuant to 8 U.S.C. § 1326. Section 1326(a) authorizes
imprisonment and fines for any alien who has been removed
or who departs while an order of removal is outstanding and
who thereafter enters or attempts to enter the United States.
8 U.S.C. § 1326(a). An immigrant who is charged with illegal
reentry may, however, under limited circumstances, collater-
ally attack a removal order the government introduces to meet
its burden of proof. 8 U.S.C. § 1326(d). The statute limits
such collateral attacks to those situations in which the alien
has exhausted his administrative remedies, the removal order
has improperly deprived the alien of the opportunity for judi-
cial review, and the entry of the removal order was “funda-
mentally unfair.” Id.
Relying on § 1326(d), Arias-Ordonez moved for dismissal
of the indictment on the grounds that his original removal
order was infirm because he had been removed in absentia
without having received notice of the hearing, and also
because the order to report for removal was affirmatively mis-
leading. The district court rejected his first contention, that his
failure to receive the notice of the time and place of the hear-
UNITED STATES v. ARIAS-ORDONEZ 3621
ing invalidated the removal proceeding. We do not need to
address this issue. The court agreed with Arias-Ordonez, how-
ever, that the order to report was affirmatively misleading
because it told him that he had no administrative remedies
when in fact he did. The court ruled that the misinformation
invalidated the original removal.
The government then attempted to support the illegal reen-
try charge by relying on the summary reinstatements of the
original order, but the district court held that the government
could not use summary reinstatements of an invalid removal
to sustain a prosecution for illegal reentry. In ordering the
indictment dismissed, the court explained that when a due
process violation has occurred, “you can’t take a reinstate-
ment and launder the original deportation” because the rein-
statement “bears the same taint as the original deportation.”
The government now appeals pursuant to 18 U.S.C. § 3731.
We review de novo a district court’s ruling on a motion to
dismiss an indictment for illegal reentry, where the defendant
has asserted a denial of due process in the underlying
removal. United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1047 (9th Cir. 2004).
DISCUSSION
I. Constitutional and Statutory Background
[1] The Supreme Court in 1987 ruled that as a matter of
due process, a defendant must be permitted to bring a collat-
eral challenge to a prior deportation that underlies a criminal
charge, where the prior deportation proceeding effectively
eliminated the right of the alien to obtain judicial review. See
United States v. Mendoza-Lopez, 481 U.S. 828, 107 S. Ct.
2148 (1987). The petitioners in Mendoza-Lopez had been
deported after a group hearing, in which the Immigration
Judge (“IJ”) had failed to explain the availability of relief
from deportation or the aliens’ right to appeal. Id. at 830, 839-
3622 UNITED STATES v. ARIAS-ORDONEZ
40. After being deported, the aliens reentered the United
States, and were apprehended and charged with illegal reentry
under § 1326. Id. at 830-31. The illegal reentry statute at that
time did not expressly allow for collateral attack of a prior
deportation order. Id. at 837. The Court therefore reached the
constitutional issue and held that due process does not permit
the imposition of criminal sanctions unless the underlying
civil order is subject to meaningful judicial review. Id. at 837-
39.
[2] Congress codified that principle at 8 U.S.C. § 1326(d).
The statute now provides for collateral attack of the removal
if “(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order; (2)
the deportation proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d). Under our case law, a predicate
removal order satisfies the condition of being “fundamentally
unfair” for purposes of § 1326(d)(3) when the deportation
proceeding violated the alien’s due process rights and the
alien suffered prejudice as a result. Ubaldo-Figueroa, 364
F.3d at 1048. We therefore address these statutory and consti-
tutional requirements with respect to the original removal and
the subsequent reinstatements.
II. The Original Removal
[3] We have long held there is a violation of due process
when the government affirmatively misleads an alien as to the
relief available to him. See Walters v. Reno, 145 F.3d 1032,
1043 (9th Cir. 1998) (holding that giving “confusing” and “af-
firmatively misleading” forms to immigrants charged with
document fraud deprived the recipients of their due process
rights); see also Ubaldo-Figueroa, 364 F.3d at 1050 (due pro-
cess violated where IJ failed to inform alien of his eligibility
for relief under § 212(c)); United States v. Ortiz-Lopez, 385
F.3d 1202, 1204 (9th Cir. 2004) (due process violated where
UNITED STATES v. ARIAS-ORDONEZ 3623
IJ failed to inform alien of eligibility for voluntary departure).
Our circuit law is also well established that § 1326(d)’s
requirements of exhaustion and deprivation of judicial review
are satisfied when the government misinforms an alien that he
is ineligible for relief. See, e.g., United States v. Palleres-
Galan, 359 F.3d 1088, 1098 (9th Cir. 2004); Ortiz-Lopez, 385
F.3d at 1204 n.2; Ubaldo-Figueroa, 364 F.3d at 1050.
[4] We therefore first consider whether the order to report
misinformed Arias-Ordonez about his eligibility for possible
relief. The order stated that there was “no administrative relief
which may be extended.” That was untrue. An alien deported
in absentia has a statutory right to explain why he did not
appear and to move to reopen proceedings. See 8 U.S.C.
§ 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). The Immi-
gration and Nationality Act provides that an alien may request
rescission of a removal ordered in absentia in “a motion to
reopen filed at any time if the alien demonstrates that the alien
did not receive notice in accordance with” statutory require-
ments. 8 U.S.C. § 1229a(b)(5)(C)(ii). Once a case is
reopened, an alien may then petition for substantive relief. See
8 C.F.R. § 1003.23(b)(3).
[5] The law thus afforded Arias-Ordonez an opportunity to
move to reopen and pursue relief, but the order to report told
him unequivocally that there was nothing he could do. The
district court therefore correctly held that the order was affir-
matively misleading and rejected the government’s argument
that any mistake in the order was minor.
The government on appeal relies on United States v.
Hinojosa-Perez, 206 F.3d 832 (9th Cir. 2000), where we
found an alien could not collaterally attack his removal
because he failed to exhaust administrative remedies. The sit-
uation in that case, however, was quite different. In Hinojosa-
Perez, the alien had received written and oral notice of admin-
istrative remedies, including the availability of a motion to
reopen. Id. at 836. The problem was he did not pursue them
3624 UNITED STATES v. ARIAS-ORDONEZ
when he had an opportunity to do so. Here, the government
told Arias-Ordonez that no such remedies were available so
he had no reason or opportunity to try to pursue any. More-
over, the district court in Hinojosa-Perez found the alien had
successfully utilized the appeals process to his advantage in
the past, and had demonstrated an awareness of free legal
assistance. Id. In this case, although he had a list of attorneys,
the district court explicitly found that Arias-Ordonez was not
sophisticated, and there is no indication he knew how to pur-
sue administrative or judicial remedies. The defendant in
Hinojosa-Perez was not deported until eight days after being
taken into custody, a period of time we held was adequate to
seek a reopening, id., whereas Arias-Ordonez spent seven
days with misinformation that he had no remedies available,
and then was removed as soon as he turned himself in.
Hinojosa-Perez is not on point.
With respect to prejudice, the district court found that
Arias-Ordonez had a plausible claim to voluntary departure
and would have pursued this remedy rather than submit to
immediate removal. This the government does not dispute on
appeal. There is no question in this case that the affirmatively
misleading statement prejudiced Arias-Ordonez.
[6] The district court correctly sustained the defendant’s
collateral attack on the original removal order by finding both
a denial of due process and prejudice. The court correctly
concluded that under the controlling authorities the original
order could not support a prosecution for illegal reentry. See
8 U.S.C. § 1326(d); Mendoza-Lopez, 481 U.S. at 837-39.
III. The Reinstatements
The government next contends that even if the original
removal proceeding was constitutionally flawed and could not
lawfully support a charge of illegal reentry, the later reinstate-
ments of that removal provide an independent basis for the
illegal reentry charge. The reinstatements totaled seven sepa-
UNITED STATES v. ARIAS-ORDONEZ 3625
rate, summary proceedings, all reinstating the original order
of removal.
[7] The illegal reentry statute criminalizes reentry into the
United States by “any alien who . . . has been denied admis-
sion, excluded, deported, or removed . . . .” 8 U.S.C.
§ 1326(a)(1). A “reinstatement” is an administrative proce-
dure through which immigration officials can rely on a prior
removal order to effect an alien’s departure from the country,
bypassing the procedural requirements, and protections, of a
regular removal proceeding. See 8 U.S.C. § 1231(a)(5);
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-91 (9th
Cir. 2007) (en banc). Congress adopted the current reinstate-
ment provision in 1996. It provides that if an alien has ille-
gally reentered the United States after removal, the prior order
of removal can be reinstated as of the original date, and the
alien is not eligible for any relief and may be removed at any
time after reentry:
[T]he prior order of removal is reinstated from its
original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply
for any relief . . . and the alien shall be removed
under the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5).
The government argues that if it can’t rely on the original
removal, it can instead rely on the reinstatements. The gov-
ernment’s problem is that all of Arias-Ordonez’s reinstate-
ments were reinstatements of the original removal. That
removal was not legally sound. Therefore, none of the rein-
statements is legally any stronger than the original order. As
we have seen, the original removal was statutorily and consti-
tutionally flawed, so the reinstatements stand on no stronger
legal basis. As the district court recognized, the government
has built a house of cards that falls once the first is removed.
3626 UNITED STATES v. ARIAS-ORDONEZ
[8] The starting point for our analysis of the reinstate-
ments, as it was for the original order, is the Supreme Court’s
seminal decision in Mendoza-Lopez, which held that a prior
removal may only become an element of a criminal convic-
tion if the defendant has had an opportunity to collaterally
attack its validity. 481 U.S. at 837-39. We have already held
that Arias-Ordonez can successfully attack his original
removal. He must also be able to attack the validity of the
later reinstatements. The issue is whether they have validity
independent of the original removal.
The government relies on our decision in Morales-
Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en
banc). We there upheld the validity of a summary reinstate-
ment, even though the reinstatement lacked the safeguards of
a removal proceeding. The government thus contends that due
process presents no obstacles to reliance in this criminal pro-
ceeding on a reinstatement of Arias-Ordonez’s original
removal order, because a summary reinstatement itself vio-
lates no constitutional protections. The government relies on
Morales-Izquierdo to assert that a summary reinstatement
may always be used to support a criminal conviction without
regard to Mendoza-Lopez’s requirement that a defendant have
a right to attack an underlying removal order that is funda-
mentally unfair.
The government’s argument proves too much, as Morales-
Izquierdo actually supports Arias-Ordonez in this case. The
reinstatement order in Morales-Izquierdo was before us on a
petition for review of the reinstatement and we held the trun-
cated reinstatement proceeding was lawful. Our decision in
Morales-Izquierdo makes it even more important to ensure
that the original removal proceeding complies with statutory
and constitutional safeguards, in order to enable a summary
reinstatement to serve its intended purpose. If the original
removal does not comply with due process, it cannot survive
later collateral review when, as here, the government attempts
UNITED STATES v. ARIAS-ORDONEZ 3627
to use a reinstatement as an element of a criminal prosecution.
An analysis of our holding makes this apparent.
In Morales-Izquierdo, we considered, en banc, a statutory
and constitutional challenge to a regulation which, for the first
time, allowed immigration officers rather than immigration
judges to make reinstatement determinations. 486 F.3d at 487-
88. The Attorney General had adopted the regulation after
Congress significantly expanded the use of reinstatement in
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996. Id. at 487-88, 494. Our court, sitting en banc,
upheld the regulation. We did so in light of the limited and
specialized role that reinstatement plays in the post-1996
immigration regime. See id. at 489-98.
In holding that it was appropriate to have immigration offi-
cers make reinstatement determinations, we found reinstate-
ments to be materially different from formal removal
proceedings, over which immigration judges must preside. In
removal proceedings, the inquiry can be “complex and fact-
intensive.” Id. at 491. For that reason, the determination of
whether an alien is removable or should be granted relief from
removal “requires a formal hearing before a trier of fact.” Id.
In contrast, we described reinstatement as a “narrow and
mechanical” process, involving only three simple inquiries:
(1) verifying the identity of the alien; (2) obtaining the prior
order of removal; and (3) determining whether the alien reen-
tered the United States illegally. Id. at 495-96. Thus, we held,
the requirement that immigration judges preside over removal
proceedings because of their potential complexity should not
extend to the reinstatement context. Id. at 498.
In addition to his general challenge to the reinstatement
regulation, the petitioner in Morales-Izquierdo argued, in peti-
tioning for review of the reinstatement, that his particular
removal order could not have been reinstated without violat-
ing his due process rights, because the underlying removal
order itself violated due process. Id. at 497. Overruling a prior
3628 UNITED STATES v. ARIAS-ORDONEZ
decision in Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963
(9th Cir. 2004), we held that even in that circumstance, the
reinstatement itself did not violate due process. Id. at 497-98.
We explained that the effect of reinstatement itself was sim-
ply to return the alien to the same legal position he occupied
prior to the illegal reentry:
The only effect of the reinstatement order is to cause
[the alien’s] removal . . . . The reinstatement order
imposes no civil or criminal penalties, creates no
new obstacles to attacking the validity of the
removal order . . . and does not diminish petitioner’s
access to whatever path for lawful entry into the
United States might otherwise be available to him
under the immigration laws.
Id. We held such a conclusion followed from the Supreme
Court’s decision in Fernandez-Vargas v. Gonzales, 540 U.S.
30, 126 S. Ct. 2422 (2006). There the Court held that the rein-
statement provision of the 1996 Act was not impermissibly
retroactive because the reinstatement itself “does not penalize
an alien for reentry (criminal and civil penalties do that).” 540
U.S. at 44, 126 S.Ct. at 2432.
[9] Yet, under the government’s theory of this case, the
reinstatement would create an additional basis for criminal
punishment that did not exist as a result of the original
removal. We conclude this is not consistent with our decision
in Morales-Izquierdo, because the underpinning of Morales-
Izquierdo is that the alien will not face criminal punishment
as a consequence of reinstatement. See 486 F.3d at 497-98. In
Morales-Izquierdo, we held that the alien’s due process rights
were not offended by reinstatement of his faulty removal
order precisely because reinstating the original order left the
alien no worse off than before reentry; reinstatement would
not result in criminal punishment or any new civil disability.
Id. In contrast, if reinstatement of a faulty removal order were
used as an independent basis for an illegal reentry conviction,
UNITED STATES v. ARIAS-ORDONEZ 3629
the alien would be much worse off, because criminal penalties
would be imposed, without any opportunity for collateral
attack of the original order.
In this criminal proceeding, according to the government,
the only collateral attack available to the alien would be lim-
ited to procedural irregularities in the reinstatement, and we
would never address the validity of the removal that was rein-
stated. Direct review of the original order is not available at
the time that order is reinstated, because the reinstatement
statute prohibits review of the underlying order. See 8 U.S.C.
§ 1231(a)(5) (providing that if the conditions for reinstate-
ment are met, “the prior order of removal is reinstated . . . and
is not subject to being reopened or reviewed . . . .”). For this
reason, we held in Morales-Izquierdo that the validity of the
original removal is inconsequential to the validity of the rein-
statement. See 486 F.3d at 497-98.
[10] When the reinstatement becomes an element of a
criminal charge, however, limiting review to the procedural
requirements for reinstatement without regard to the sound-
ness of the underlying removal proceeding implicates due
process concerns by effectively foreclosing all opportunity for
“meaningful” review of the underlying removal. This is a
result contrary to the Supreme Court’s teaching in Mendoza-
Lopez. See 481 U.S. at 837-38 (“[W]here a determination
made in an administrative proceeding is to play a critical role
in the subsequent imposition of a criminal sanction, there
must be some meaningful review of the administrative pro-
ceeding.”). The government’s theory thus runs afoul of
Mendoza-Lopez’s guarantee of the right to seek a collateral
attack after criminal proceedings are filed. See id. at 837-39.
We must therefore conclude that when the government relies
upon a reinstatement as a basis for a reentry prosecution, due
process requires that the defendant have an opportunity to
attack the validity of the underlying removal proceeding.
Our conclusion that Mendoza-Lopez permits a challenge to
the original removal order underlying a reinstatement used to
3630 UNITED STATES v. ARIAS-ORDONEZ
support a criminal indictment is consistent with the Third Cir-
cuit’s decision in United States v. Charleswell, 456 F.3d 347
(3d Cir. 2006). In Charleswell, the Third Circuit rejected the
government’s contention that the court did not have jurisdic-
tion to review the original removal order where the indictment
for illegal reentry cited only the reinstatement. The Third Cir-
cuit held that Mendoza-Lopez requires an opportunity for the
alien to bring a collateral attack on the original order. Id. at
351-52. “To hold otherwise,” it explained, “would allow the
government to avoid the consequences of a fundamentally
unfair underlying deportation or removal proceeding simply
by deleting it from the indictment . . . .” Id. at 352. It thus dis-
approved precisely what the government is attempting to do
here.
The district court correctly and succinctly assessed the situ-
ation when it said that the government could not launder the
tainted removal by reinstating it. Mendoza-Lopez and
Morales-Izquierdo compel us to hold that a valid reinstate-
ment of a invalid removal order cannot transform the prior
order into a valid predicate for an illegal reentry conviction.
The government nevertheless additionally suggests that
even if the original removal cannot survive Arias-Ordonez’s
challenge, our decisions in United States v. Luna-Madellaga,
315 F.3d 1224 (9th Cir. 2003), and United States v. Diaz-
Luevano, 494 F.3d 1159 (9th Cir. 2007) (per curiam), never-
theless support the validity of the indictment. These were sen-
tencing enhancement cases, however, addressing a very
different problem. Luna-Madellaga and Diaz-Luevano
decided whether the district court properly applied the sen-
tencing enhancement in 8 U.S.C. § 1326(b). Subsection (b)
provides for an enhanced penalty of up to twenty years for an
alien who reenters after removal for commission of an aggra-
vated felony.
In Luna-Madellaga, we considered whether the district
court properly enhanced the sentence of an alien who had
UNITED STATES v. ARIAS-ORDONEZ 3631
been removed, was subsequently convicted of an aggravated
felony, and then, after reinstatement of the original removal
order, was removed again. 315 F.3d at 1225. Section 1326(b)
provides that an alien “whose removal was subsequent to a
conviction for commission of an aggravated felony” is eligi-
ble for a sentence of up to 20 years. 8 U.S.C. § 1326(b)
(emphasis added). The alien contended that he should not
have his punishment enhanced on account of an aggravated
felony committed after he was ordered removed, because
there could have been no “removal . . . subsequent to a con-
viction” within the meaning of the statute. 315 F.3d at 1226.
We held in Luna-Madellaga that the word “removal” in the
context of the sentencing enhancement provision referred to
the alien’s physical removal, not the removal order arising out
of a removal proceeding. Id. Because the alien was physically
removed “subsequent to” the felony conviction, he was there-
fore subject to the enhanced punishment. Id. By reading “re-
moval” to refer to the alien’s physical removal, the panel
majority did not have to address whether the summary rein-
statement proceeding was equivalent to a “removal” in any
other legal context. See id. at 1226-27. Luna-Madellaga
explicitly pointed out that the alien had “already received a
full and fair hearing, including judicial review of that prior
hearing, which afford[ed] all the process to which he was
entitled.” See id.
After we decided Morales-Izquierdo, another defendant in
the same situation as Luna-Madellaga again challenged the
application of the sentencing enhancement, contending that
Morales-Izquierdo’s sharp distinction between removal and
reinstatement had invalidated Luna-Madellaga’s reading of
§ 1326(b). See Diaz-Luevano, 494 F.3d at 1161. We dis-
agreed, and reaffirmed Luna-Madellaga. Id. at 1162. In so
doing, we confirmed that the predicates for the sentence
enhancement provision of § 1326(b) stand separate and apart
from the statutorily defined procedures for removals and rein-
statements.
3632 UNITED STATES v. ARIAS-ORDONEZ
Diaz-Luevano and Luna-Madellaga thus cannot be read to
suggest that “removal,” the fundamental concept of our immi-
gration law enforcement, always means “physical removal”
wherever the words “removal” or “removed” appear in our
criminal immigration laws. Nor do the sentencing cases hold
that a summary reinstatement has validity independent of the
underlying order being reinstated. The cases relate to the
application of the language in § 1326(b) to a specific
sequence of events, a valid removal order and conviction of
an aggravated felony, not relevant here. Luna-Madellaga and
Diaz-Luevano thus do not support the government’s attempt
to rely on reinstatements of a removal that cannot withstand
collateral attack.
[11] Moreover, we have previously assumed the result we
reach today. See United States v. Leon-Paz, 340 F.3d 1003
(9th Cir. 2003). In Leon-Paz, the defendant had been
removed, and his original removal had been twice reinstated,
before he was convicted of illegal reentry. Id. at 1004. On
appeal, the defendant contended that the district court erred in
rejecting his collateral attack on the original removal; we
agreed, finding that the removal violated due process. Id. at
1007. The district court had not considered, however, whether
the defendant had suffered prejudice, and so we remanded for
consideration of that issue. Id. We assumed that on remand
the reinstatements alone could not alternatively support the
defendant’s conviction, and instructed that if the defendant
was prejudiced, “the district court must dismiss the indict-
ment.” Id. Today we express what we implied in Leon-Paz:
a successful collateral attack on a removal order precludes
reliance on a reinstatement of that same order in criminal pro-
ceedings for illegal reentry.
CONCLUSION
The original removal order could not justify a conviction
for illegal reentry because the government affirmatively and
prejudicially misled Arias-Ordonez as to his statutory right
UNITED STATES v. ARIAS-ORDONEZ 3633
after his removal in absentia to seek to reopen his removal
proceedings. Nor could any of the subsequent reinstatements
provide an independent basis for conviction of illegal reentry
because they reinstated a removal that did not comply with
due process. The judgment of the district court dismissing the
indictment is AFFIRMED.