- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 06-17-2014
- Case #: 12-50597
- Judge(s)/Court Below: Circuit Judge Berzon for the Court; Circuit Judges Pregerson and Murphy
- Full Text Opinion
Jorge Aguilera-Rios, a Mexican citizen, entered into the United States at the age of five with his parents, who were lawful permanent residents. In 2000, he became a lawful permanent resident. Two years later, he was convicted of a California firearms offense and was removed from the United States back to Mexico based on this conviction. Six years later, the Aguilera-Rios was charged with “attempted entry after deportation” for violating 8 U.S.C. § 1326(a) and (b). Under the statute, “[a] defendant charged with illegal entry pursuant to [the statute] has a due process right to bring a collateral attack challenging the validity of his underlying deportation . . .” However, the defendant must establish (1) that he exhausted all administrative remedies; (2) the prior removal proceedings must have been improper for judicial review; and, (3) the entry must be “fundamentally unfair”. Aguilera-Rios contends that the federal definition of “firearm” specifically exempts antique firearms whereas the California statute does not. The Ninth Circuit first addressed whether the government’s contention that Aguilera-Rios should not apply a recently decided case that discussed the application of the categorical approach in immigration cases. Moncrieffe v. Holder was decided a week prior to Aguilera-Rios filing his brief. The government contended that the defendant failed to raise the Moncrieffe argument before trial and therefore the argument should be dismissed. The panel rejected that contention however, finding that Aguilera-Rios was diligent in filing within a month after Moncrieffe was decided, and that the lower court may be discretionary. The panel next discussed the fact that the California law was not a categorical match for the federal definition of an aggravated felony firearms defense. Since the federal statute is missing an element of the “generic crime”, there was not grounds for removal. REVERSED.