United States v. Refugio Palomar-Santiago ( 2020 )

NOT FOR PUBLICATION FILED
MAY 14 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10011
Plaintiff-Appellant, D.C. No.
3:17-cr-00116-LRH-WGC-1
v.
REFUGIO PALOMAR-SANTIAGO,AKA MEMORANDUM*
Refugio SantiagoPalomar,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted April 15, 2020**
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
Refugio Palomar-Santiago is a Mexican national who was granted
permanent resident status in the United States in 1990. In 1991, he was convicted
of a felony DUI in California. In 1998, he received an Notice to Appear from the
Immigration and Naturalization Service informing him that he was subject to
removal because the DUI offense was classified as a crime of violence under 18
U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. §
1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that
basis. Three years later, the Ninth Circuit determined that the crime Palomar-
Santiago was convicted of was not a crime of violence. United States v. Trinidad-
Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied
retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013).
By 2017, Palomar-Santiago was again living in the United States, this time
without authorization. That year, a grand jury indicted him for illegal reentry after
deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the
indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must
dismiss a § 1326 indictment if the defendant proves (1) he exhausted any
administrative remedies that may have been available to seek relief against the
order; (2) he was deprived of the opportunity for judicial review at the deportation
hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. §
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1326(d). However, a defendant need not prove the first two elements if he can
show the crime underlying the original removal was improperly characterized as an
aggravated felony and need not show the third element if he can show the removal
should not have occurred. United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir.
2017); United States v. Aguilera-Rios, 769 F.3d at 630.
The district court held Palomar-Santiago met his burden in showing his
crime was improperly characterized as an aggravated felony and that he was
wrongfully removed from the United States in 1998. On this basis, it dismissed the
indictment under § 1326(d). On appeal, the government concedes the district court
faithfully applied Ninth Circuit precedent in its order. Instead of disputing the
district court’s application of the law, the government argues that our settled
precedent is wrong and urges the panel to ignore it. Id. It points to evidence of
contravening congressional intent, the text of the statute itself, and contrary case
law from our sister circuits to support its argument. See, e.g., United States v. Soto-
Mateo, 799 F.3d 117, 120-21 (1st Cir. 2015); United States v. Villanueva-Diaz,
634 F.3d 844, 849-52 (5th Cir. 2011).
Whatever merits the government’s argument may have, a three-judge panel
“can only decline to apply prior Circuit precedent ‘clearly irreconcilable’ with a
subsequent Supreme Court decision.” United States v. Shelby, 939 F.3d 975, 978
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(9th Cir. 2019) (internal citations omitted). The Ninth Circuit precedent as
established in Ochoa and Aguilera-Rios is not clearly irreconcilable with any
subsequent Supreme Court precedent, and as such this panel has no choice but to
apply it. The parties do not dispute, and this panel agrees, that the district court
faithfully applied Ninth Circuit precedent in dismissing the indictment under §
1326(d) after finding Palomar-Santiago was not convicted of an aggravated felony
in 1991, was not eligible for removal, and was wrongfully removed from the
United States. Consequently, we affirm the district court’s dismissal on this basis.
Because this is an adequate independent basis for dismissal, the panel declines to
reach Palomar-Santiago’s alternative arguments supporting dismissal.
AFFIRMED.
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FILED
No. 19-10011, United States v. Refugio Palomar-Santiago
MAY 14 2020
CLIFTON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the disposition, which faithfully applies our precedent. I write
separately to express my view that this precedent should be revisited by an en banc
panel of this court.
Three years ago, a panel of our court concluded that our precedent permitted
defendants charged with illegal reentry to collaterally challenge their prior removal
orders, even if they did not appeal them at the time, so long as the crime for which
they were originally deported was not in fact a removable offense. United States v.
Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017) (citing United States v. Camacho-
Lopez, 450 F.3d 928, 930 (9th Cir. 2006) and United States v. Pallares-Galan, 359
F.3d 1088, 1096, 1103–04 (9th Cir. 2004)).
Nevertheless, in Ochoa, a concurrence by Judge Graber, joined by both of
the other two members of the Ochoa panel, Judges McKeown and Chief District
Judge Barbara M.G. Lynn (N.D. Tex.), described the precedents that bound that
panel and bind us, as inconsistent with the relevant statutory text, out of step with
other circuits and based on reasoning that was unfounded. “Our precedent has the
effect of nullifying the procedural requirements of [8 U.S.C.] § 1326(d) . . . and
creating in their place a new, substantive right to retroactive de novo review,
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thereby undermining the finality interests the statute was designed to protect.”
Ochoa, 861 F.3d at 1024 (Graber, J., concurring). We remain inconsistent with the
statute and on the wrong side of a circuit split, by my count currently 9-2. I repeat
the suggestion of the Ochoa panel that this question merits en banc
reconsideration.
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