Background
The defendant appealed the district court’s denial of a motion to dismiss an information charging him with illegal reentry under Section eight thousand three hundred twenty-six of Title eight of the United States Code. The charge relied on two removal orders: a September two thousand twenty-one administrative removal order and a December two thousand twenty-one expedited removal order.
The court’s reasoning
The court reviewed the denial de novo and found the defendant did not satisfy the requirements for a collateral attack under Section eight thousand three hundred twenty-six subsection d. First, the defendant was served a final administrative removal order and a notice of intent to remove that informed him of his right to appeal within thirty calendar days. The court found no obstacle prevented him from exercising this right, noting that an officer’s statement that he would be deported regardless did not preclude an appeal. Second, while the court agreed the defendant was denied due process because he was served a notice, issued an order, and deported on the same day, the defendant failed to show prejudice. To show prejudice, he needed to demonstrate plausible grounds for relief, such as setting aside a prior guilty plea based on ineffective assistance of counsel. The court found little evidence to support that he would have rejected a plea deal given the video evidence and potential four-year sentence.
What it means going forward
The ruling reinforces that defendants challenging illegal reentry convictions must prove they had plausible grounds for relief to show prejudice from procedural errors in removal proceedings.