United States v. Juan Lachino-Estrada

MEMORANDUM

During his prosecution for being a removed alien found within the United States in violation of 8 U.S.C. § 1326 , appellant Juan Manuel Lachino-Estrada (“Lachino”) moved to dismiss the indictment on grounds that the underlying removal order was invalid. Following the denial of that motion, Lachino entered a conditional guilty plea, reserving the right to appeal the denial of the motion to dismiss. Lachino was thereafter sentenced to time served and a one-year period of supervised release. Because we agree that the failure of the immigration judge (“IJ”) to advise Lachino of his eligibility for voluntary departure and to give him the opportunity to develop the issue constituted a violation of due process, we vacate the sentence and remand to permit the district court to determine whether this violation prejudiced Lachino.

We review de novo a claim that defects in the underlying deportation procedure rendered it invalid for use in criminal proceedings. United States v. Ortiz-Lopez, 385 F.3d 1202, 1203 (9th Cir.2004). A defendant charged with illegal reentry after removal under § 1326 may collaterally attack the removal order. United States v. Mendoza-Lopez, 481 U.S.…