NOT FOR PUBLICATION                         FILED
                                                                          JAN 11 2017
                     UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 15-10458

               Plaintiff-Appellee,              D.C. No. 14-cv-01883-RCC

 v.                                             MEMORANDUM*

GUILLERMO ORTEGA,

               Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                     Argued and Submitted December 15, 2016
                                San Francisco, CA

Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.

      On May 28, 2015, Guillermo Ortega was convicted of illegal reentry in

violation of 8 U.S.C. § 1326(a)(1). The predicate to Ortega’s indictment and

conviction was an order for removal, issued by a United States Immigration Judge


           *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
                                          1
(“IJ”), on April 23, 2001 (“Removal Order”), after a short hearing (“Removal

Hearing”). The district court sentenced Ortega to thirty-seven months’

imprisonment. Ortega now appeals his conviction and sentence.

      1.     In a criminal proceeding under § 1326(a)(1), an alien may challenge

the validity of the underlying deportation order if he or she “demonstrates that—

(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); see

also, e.g., United States v. Lopez-Velasquez, 

, 896 (9th Cir. 2010);

United States v. Herrera-Blanco, 

, 718 (9th Cir. 2000). The first and

second elements of the statute are satisfied even if the alien waived his right to

appeal his order of removal, “where the record contains an inference that the

petitioner is eligible for relief from deportation, but the IJ fails to advise the alien

of this possibility and give him [or her] the opportunity to develop the issue.”

United States v. Pallares-Galan, 

, 1096 (9th Cir. 2004) (internal

citations and quotation marks omitted). For purposes of this statute’s third

element, an alien must show that (1) his or her due process rights were violated by

defects in his or her underlying deportation proceeding, and (2) he or she suffered

prejudice as a result of the defect. United States v. Arrieta, 

, 1079

                                            2
(9th Cir. 2000). If an alien establishes all of these factors, an order for removal

cannot support a prosecution under § 1326(a), United States v. Rodriguez-

Ocampo, 

, 1278–79 (9th Cir. 2011), and any conviction and sentence

for such a crime must be vacated, United States v. Leon-Paz, 

, 1007

(9th Cir. 2003).

      2.     The district court erred in failing to address the validity of the

underlying removal order, although clearly pressed to do so. And several errors

sufficient to satisfy § 1326(d) tainted the Removal Hearing. Principally, the IJ

misclassified two of Ortega’s prior convictions. See 8 U.S.C. §§

1182(a)(2)(A)(ii)(II), 1101(a)(43)(F), 1227(a)(2)(A)(i). Based on these faulty

categorizations, the IJ then mistakenly determined that Ortega was ineligible for

any relief and thus failed to explain to Ortega his possible eligibility for voluntary

removal or a waiver pursuant to Section 212 of the Immigration and Nationality

Act. Cumulatively weighed, these mistakes satisfy § 1326(d)(1) and (d)(2) and the

due process prong of § 1326(d)(3). See, e.g., United States v. Gonzalez-Villalobos,

, 1130 (9th Cir. 2013); United States v. Vidal-Mendoza, 

, 1016 (9th Cir. 2013).

      3.     Nevertheless, Ortega’s extensive criminal record may still have

deprived him of any plausible ground for relief from deportation in April of 2001.

If so, Ortega would not have been prejudiced by the IJ’s errors, and his indictment,

                                           3
conviction, and sentence would remain valid. See, e.g., United States v. Leon-Leon,

, 1432 (9th Cir. 1994); United States v. Proa-Tovar, 

,

595–96 (9th Cir. 1992). Accordingly, we remand so that the district court can

consider fully whether Ortega was prejudiced by the deprivation of his due process

rights in the Removal Hearing. See 

–56.

      4.     The remand renders it unnecessary for the Court to consider any

remaining issues.1

      REMANDED.




      1
        The case’s peculiar facts prompt one final observation. In a prior
prosecution, the United States Attorney’s Office for the Southern District of
California (“USAO”) also initially charged Ortega under § 1326. When Ortega’s
California counsel challenged the legality of his client’s removal, the USAO filed a
superseding indictment charging Ortega with illegal entry under § 1325(a), a crime
for which no prior removal is required. Therefore, while the parties in California
did not “end up litigating . . . [‘the validity of . . . Ortega’s prior immigration judge
removal’],” the USAO did abandon its § 1326 charges and even accepted Ortega’s
“sentencing arguments” against a “plus-four” enhancement in his sentence
traceable to the Removal Order. Why the Government here seemed entirely
unaware of or indifferent to the USAO’s course of conduct is a troubling but
unanswerable question.
                                            4