Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on a misclassification of a prior conviction.
Under 8 U.S.C. §1326(d), a district court must dismiss an indictment for illegal reentry after deportation if the defendant proves that: (1) he exhausted his administrative remedies for seeking relief against the deportation order, (2) he was improperly deprived of the opportunity for judicial review at the deportation hearing, and (3) the deportation order was fundamentally unfair.
In the 9th Circuit, the defendant need not prove the first 2 elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony. And he 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 626, 630 (9th cir. 2013).
The Solicitor General’s cert petition argues that the 9th Circuit case law: (1) violates the text, history, and design of the statute, and (2) conflicts with case law from other circuits. 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).