from the United States District Court for the District of New
Mexico (D.C. No. 2:15-CR-02605-RB-1)
N. Langell, Assistant Federal Public Defender (Stephen P.
McCue, Federal Public Defender, with him on the briefs),
Office of the Federal Public Defender, Las Cruces, New
Mexico, for Appellant.
A. Ong, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney, with her on the brief), Office
of the United States Attorney, Las Cruces, New Mexico, for
PHILLIPS, KELLY, and MURPHY, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
Immigration and Naturalization Act (INA) defines
"aggravated felony" to include "illicit
trafficking in a controlled substance," 8 U.S.C. §
1101(a)(43)(B), making removal from this country "a
virtual certainty" for a noncitizen convicted of such a
crime, Sessions v. Dimaya, 138 S.Ct. 1204, 1211
(2017). The INA imposes serious consequences on a noncitizen
convicted of an aggravated felony: (1) he becomes deportable,
8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability
to obtain discretionary relief, like cancellation of removal,
id. § 1229b(a)(3), or voluntary departure,
id. § 1229c(a)(1); and (3) he is subject to
expedited removal proceedings, with no immigration judge
present, id. § 1228(a)(1).
helps explain the stakes for Oscar Almanza-Vigil. In 2007, he
pleaded guilty in Colorado state court to "selling or
distributing" methamphetamine in violation of Colorado
Revised Statutes § 18-18-405(1)(a) (2006), for which he
received a four-year prison sentence. In 2009, when the state
paroled him, Immigration and Customs Enforcement (ICE)
initiated expedited removal proceedings against him,
declaring that he had committed an aggravated felony. With
that designation, he had no right to an administrative
hearing before an immigration judge. Compare 8
U.S.C. § 1229a ("An immigration judge shall conduct
proceedings for deciding the inadmissibility or deportability
of an alien."), with 8 U.S.C. §
1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i)
(allowing the government to put aggravated felons in
expedited removal proceedings without a hearing before an
immigration judge). Within the week, the Department of
Homeland Security had issued a final administrative removal
order, and ICE agents had sent Almanza-Vigil back across the
border to Mexico. Six years later, border-patrol agents found
Almanza-Vigil in the New Mexico desert. Then, charged with
illegal reentry, Almanza-Vigil moved to dismiss the
indictment by collaterally attacking his previous removal
order and arguing, for the first time, that he never
committed an aggravated felony.
reviewing the district court's judgment convicting
Almanza-Vigil for illegal reentry, we must return to 2009,
when he left state prison, and ask how he could have avoided
removal. To prevail here, Almanza-Vigil must show not only
that his Colorado felony was not an aggravated felony, but
that misclassifying it as one prejudiced him. To show the
required prejudice, he must show that the misclassification
rendered the entry of the 2009 removal order fundamentally
unfair. Absent that, his appeal fails. See 8 U.S.C.
reasons detailed below, we conclude that Almanza-Vigil's
Colorado felony does not fit the INA's definition of an
aggravated felony. But we also conclude that he failed to
demonstrate a reasonable likelihood of avoiding removal but
for the erroneous classification of his conviction. The INA
therefore parries a collateral attack on Almanza-Vigil's
previous removal order. 8 U.S.C. § 1326(d). So,
exercising our jurisdiction to review the district
court's final orders, 28 U.S.C. § 1291, we affirm
that court's judgment of conviction.
Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In
1993, eight-year-old Almanza-Vigil and his family trekked
across the Mexico-United States border, without documents and
without government inspection, and settled in Colorado.
Almanza-Vigil never acquired legal immigration status, but he
grew up in this country, learning English, graduating from
high school, finding work at a dairy farm, and eventually
fathering a son.
2006, when Almanza-Vigil was twenty-one years old, the
district attorney in Fort Morgan, Colorado, charged him with
six violations of the state's controlled-substances act,
all felonies. Counts 1, 2, and 3 of the criminal complaint
charge three, identical crimes: that "[o]n or
[a]bout" September 15, 20, and 27 of that year,
Almanza-Vigil "unlawfully, feloniously, and knowingly
sold or distributed METHAMPHETAMINE, a schedule II controlled
substance, in violation of section 18-18-405(1),
(2)(a)(I)(A), [Colorado Revised Statutes]." Suppl. R.
vol. 2 at 3 (bolding removed). Likewise, counts 4, 5, and 6
charge him with possessing methamphetamine "[o]n or
[a]bout" the same dates. Id. vol. 2 at 3-4.
time, Colorado Revised Statutes § 18-18-405 provided, in
(1)(a) Except as authorized by [other provisions of state
law], it is unlawful for any person knowingly to manufacture,
dispense, sell, distribute, possess, or to possess with
intent to manufacture, dispense, sell, or distribute a
controlled substance; or induce, attempt to induce, or
conspire with one or more other persons, to manufacture,
dispense, sell, distribute, possess, or possess with intent
to manufacture, dispense, sell, or distribute a controlled
substance; or possess one or more chemicals or supplies or
equipment with intent to manufacture a controlled substance.
(2)(a) Except as is otherwise provided in subsection (2.3) of
this section for possession offenses not including possession
with the intent to distribute involving one gram or less of
any material, compound, mixture, or preparation that contains
any quantity of a schedule I through IV controlled substance,
. . . any person who violates any of the provisions of
subsection (1) of this section:
(I) In the case of a controlled substance listed in schedule
I or II of part 2 of this article, commits:
(A) A class 3 felony; except that a person commits a class 4
felony if such violation is based on the possession of a
controlled substance listed in schedule II unless otherwise
provided in paragraph (a) of subsection (3) of this
(2.3)(a) Any person who commits the offense of possession in
violation of the provisions of subsection (1) of this section
by possessing any material, compound, mixture, or
preparation, weighing one gram or less that contains any
quantity of a controlled substance listed in schedules I
through IV of part 2 of this article commits:
(I) A class 6 felony[.]
Colo. Rev. Stat. § 18-18-405 (2006).
August 2007, Almanza-Vigil pleaded guilty to count 1,
"selling or distributing" methamphetamine. In
exchange, the state dismissed the remaining five charges. The
state court's "sentence order" reflects this
bargain. Suppl. R. vol. 2 at 5. The order shows
Almanza-Vigil's "Plea of Guilty" to count 1,
"18-18-405(1), (2)(a)(I)(A) - Controlled
subst-Distribute s," a class 3 felony, and lists counts
2, 3, 4, 5, and 6-two more distribution charges (also class 3
felonies) and three possession charges (two class 4 felonies
and one class 6 felony)-as "Dism by DA." Suppl. R.
vol. 2 at 5. The court sentenced Almanza-Vigil to serve four
years in state prison.
years passed. Then, prison officials informed Almanza-Vigil
(whose parole was approaching) that the federal government
had issued an immigration hold. "[Y]ou're going to
be going to Mexico," he remembers being told. R. vol. 1
at 154:25. And from that point on, he claims, he "never
thought" that he would be able to challenge his removal.
R. vol. 1 at 155:1.
April 2009, the state released Almanza-Vigil to ICE agents,
who detained him pending his removal. The Department of
Homeland Security had decided that Almanza-Vigil's
Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)'s
definition of an "aggravated felony," making him
deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) and,
because he lacked permanent-resident status, subjecting him
to expedited removal proceedings under 8 U.S.C. §
1228(b) and 8 C.F.R. § 238.1(b), (d), without a hearing
before an immigration judge.
record on appeal contains the two forms that the government
claims to have given Almanza-Vigil during these proceedings:
a two-page Notice of Intent (exhibit 4) and a one-page
Certificate of Service (exhibit 5). These forms are, in the
district court's words, "a mess." R. vol. 1 at
354 ¶ 10.
4 is titled, "Notice of Intent to Issue a Final
Administrative Removal Order." Suppl. R. vol. 2 at 6.
Below that title, the Notice is addressed to "Oscar
ALAMANZA-VIGIL" (a misspelling repeated on the next
page). Id. at 6, 7. The Notice then sets forth the
"Charge": "You are deportable under . . . 8
U.S.C. § 1227(a)(2)(A)(iii), as amended, because you
have been convicted of an aggravated felony . . . ."
Suppl. R. vol. 2 at 6. And it explains "Your Rights and
Responsibilities," including (1) that "you may
contact legal counsel from the list of available services
provided to you" (a list that the government didn't
provide) and (2) that if you want to exercise your rights to
rebut the charge or to seek judicial review, the government
must receive your written response within ten days.
Id. But the Notice lacks a designated space for
Almanza-Vigil's signature. And while the Notice's
first page claims to be "Form I-851," the next page
identifies itself as "Form I-831 Continuation Page"
and purports to be the third of three pages. Id. at
7. Above this puzzling footer, the Continuation Page contains
a typewritten paragraph alleging, "You were . . .
convicted . . . for the offense of, Controlled
Substance-Distribute Sch. 2; to wit: Methamphetamine in
violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for which the
term of imprisonment was 4 years." Id.
5, the Certificate of Service, begins with an ICE agent's
signed statement: "I served this Notice of Intent. I
have determined that the person served with this document is
the individual named on the other side of the form."
Id. at 8. (The contents of the "other
side" remain a mystery: the district court deduced only
that "the other side" was probably not the
Certificate, based on the government's introduction of
the Notice and the Certificate as separate exhibits.) Beneath
two checked boxes-one admitting "the allegations and
charge in this Notice of Intent," another waiving
"the right to remain in the United States . . . to apply
for judicial review"-the Certificate has three lines: on
the first is a hand-drawn "x" and
Almanza-Vigil's signature; on the second, someone printed
"Oscar Almanza"; and on the third is the date,
April 6, 2009. Id.
government's view, Almanza-Vigil knowingly waived his
right to contest his removal by signing the Certificate. So,
on April 6 (the same day that he signed it), the Department
of Homeland Security issued a final administrative removal
order declaring (1) that Almanza-Vigil is not a U.S. citizen,
(2) that he has never been lawfully admitted for permanent
residence to the United States, and (3) that he has been
convicted of an aggravated felony defined in 8 U.S.C. §
1101(a)(43)(B). ICE executed the order a week later, on April
13, and an immigration official witnessed Almanza-Vigil walk
across the border near El Paso, Texas, and into Mexico.
years later, in April 2015, a set of footprints in the New
Mexico desert led border-patrol agents to Almanza-Vigil, who
was hiding in a mesquite bush near the border fence. The
agents arrested him, suspecting that he'd entered
illegally. After his processing revealed the 2009 removal
order, prosecutors filed a criminal complaint in the U.S.
District Court for the District of New Mexico, alleging that
Almanza-Vigil had reentered the country in violation of an
outstanding removal order that had followed an
aggravated-felony conviction. Three months later, a grand
jury returned an indictment charging him with illegal reentry
in violation of 8 U.S.C. § 1326(a) and (b).
moved to dismiss the indictment by attacking his 2009 removal
order-the government's proof that he had reentered
illegally (a felony under 8 U.S.C. § 1326) rather than
merely entered improperly (a misdemeanor under § 1325).
The 2009 removal order was "improperly issued," he
claimed, because he had never been convicted of an aggravated
felony. R. vol. 1 at 54. Had the government realized this, he
argued, he would not have been put in expedited removal
proceedings, and he could have applied for (and likely
received) discretionary relief from removal. But the district
court denied the motion and foreclosed Almanza-Vigil's
collateral attack. Twice, Almanza-Vigil asked the court to
reconsider this ruling, but twice, the court refused.
December 14, 2015, after denying Almanza-Vigil's first
motion to reconsider, the court held a bench trial.
"[B]ased upon the undisputed testimony" that he had
returned to the United States without permission after being
deported, the court found Almanza-Vigil guilty of violating 8
U.S.C. § 1326(a) and (b). Four weeks later, after
denying his second motion to reconsider, the court entered
judgment and sentenced Almanza-Vigil to 635 days in prison
(approximately time served-he had been in custody since his
arrest on April 19, 2015). He immediately appealed.
challenges the district court's refusal to dismiss the
illegal-reentry indictment. On appeal, as in the district
court, he disputes the validity of his 2009 removal order by
arguing that it was entered without due process. When a
noncitizen attacks the constitutionality of a previous
removal proceeding in this way, he presents a mixed question
of law and fact that we review de novo. United States
v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th
Cir. 2004). But before addressing the merits of
Almanza-Vigil's appeal, we must narrow the question. To
do so, we weave together the appeal's statutory and
How Can a Noncitizen Prosecuted for Illegal Reentry
Collaterally Attack the Underlying Removal Order?
the government prosecutes a noncitizen for illegal reentry,
it typically must prove two things: (1) that the noncitizen
left the United States with an outstanding order of removal
against him and (2) that afterward, the noncitizen entered,
tried to enter, or was found in the United States. 8 U.S.C.
the government offers a previous removal order as evidence of
the first element, the Fifth Amendment protects the
noncitizen's right to challenge that order, even years
after the time for appeal has passed and the order has become
final. United States v. Mendoza-Lopez, 481 U.S. 828,
837-39 (1987); accord United States v. Adame-Orozco,
607 F.3d 647, 651 (10th Cir. 2010). Congress codified this
right in 8 U.S.C. § 1326(d), subject to a
noncitizen's meeting three conditions. See
Adame-Orozco, 607 F.3d at 651. To collaterally attack a
previous removal order, the noncitizen must show (1) that he
exhausted all administrative remedies available to contest
the previous removal order, (2) ...