United States v. Raul Ortiz-Rivera

Ortiz-Rivera was charged with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . He moved to dismiss the indictment on the ground that his earlier deportation hearing did not comply with due process of law. After a hearing, the district court upheld the indictment. Ortiz-Rivera then entered a conditional guilty plea, and filed this appeal.

I

In his guilty plea, Ortiz-Rivera stipulated to the following facts:

II

Ortiz-Rivera relies on our decision in United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992) (en bane), to support his contention that his 1989 deportation cannot be made the basis of criminal penalties for reentering this country. In Proa-Tovar , we recognized that, under the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987), “where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.” Proa-Tovar, 975 F.2d at 594 (quoting Mendoza-Lopez, 481 U.S. at 838 , 107…