United States v. Noe Arias-Ordonez

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.