United States v. Romero-Lobato

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC ROMERO-LOBATO, Defendant-Appellant.

No. 22-10091

United States Court of Appeals, Ninth Circuit

November 3, 2023

NOT FOR PUBLICATION

Argued and Submitted June 9, 2023 San Francisco, California

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding D.C. No 3:18-cr-00047-LRH-CLB-1

Before: MILLER and KOH, Circuit Judges, and LYNN, ^[**] District Judge.

MEMORANDUM ^[*]

Eric Romero-Lobato appeals from the district court's denial of his motion to dismiss his indictment for illegal reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

We review de novo the district court's ruling on a motion to dismiss an indictment, United States v Bastide-Hernandez, 39 F.4th 1187, 1190 (9th Cir. 2022) (en banc), and we review the district court's factual findings for clear error, United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006). We may set aside the district court's findings only if we have "a definite and firm conviction that a mistake has been committed." United States v. Hylton, 30 F.4th 842, 846 (9th Cir. 2022) (quoting United States v. Perkins, 850 F.3d 1109, 1115 (9th Cir. 2017)).

Romero-Lobato contends that his prior removal order was invalid. To defeat a charge of illegal reentry by collaterally attacking a removal order, a defendant must show, among other things, that "the entry of the order was fundamentally unfair," 8 U.S.C. § 1326(d)(3), which in turn requires him to establish, first, that his "due process rights were violated by defects in his underlying deportation proceeding, and," second, that "he suffered prejudice as a result of the defects," United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (citation omitted).

1. Romero-Lobato argues that the INS provided him inadequate notice of his deportation proceedings. Due process requires that "the notice afforded aliens about deportation proceedings . . . be reasonably calculated to reach them." Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir. 2002). a. Romero-Lobato asserts that he never received notice of his order to show cause, but the district court found that he in fact received notice on two separate occasions. First, the court found that an INS official personally served an order to show cause on Romero-Lobato while he was in juvenile detention. Romero-Lobato objects that the INS recorded neither his fingerprint nor his signature, but the officer explained that no ink for fingerprinting was available and that Romero-Lobato refused to sign. We see no clear error in the district court's decision to credit the officer's explanation.

Second, the district court found that Romero-Lobato received another copy of the order to show cause that was transmitted by certified mail. The INS mailed the order to Romero-Lobato at an address that contained the right street number and street name but, according to Romero-Lobato, stated an incorrect apartment number and ZIP Code. The district court found that Romero-Lobato nevertheless received the mailing because an "Eric Lovato" signed for delivery, and his signature bore a strong resemblance to that of "Eric Romero," who signed for an order that the INS mailed to the same address months later. The district court did not clearly err in concluding that the signature reflected actual receipt by Romero-Lobato.

b. Romero-Lobato next argues that he received inadequate notice of the time and date of his hearing. As the INS did not include scheduling information on the order to show cause, it prepared a separate document with the time and date. The record does not reflect whether the INS mailed that document to Romero-Lobato. But before the district court, Romero-Lobato conceded that "[o]n March 27, 1996, the immigration court sent notice that Mr. Romero-Lobato's case was scheduled for a master calendar hearing on July 31, 1996." Romero-Lobato insisted that "[t]he mailing was sent to the same invalid home address" used for the order to show cause. The district court found that "the record firmly establishes that defendant received notice of his removal hearing." In so finding, the court referenced its earlier finding that Romero-Lobato received mail at the address claimed to be invalid.

Although Romero-Lobato stated that the notice of hearing went to the wrong address, he did not argue below that the notice of hearing fell short of due process. Our review would ordinarily be for plain error, see Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993), but because the government waived Romero-Lobato's forfeiture and disclaimed the plain-error standard, we apply clear-error review, see United States v. Murguia-Rodriguez, 815 F.3d 566, 574 (9th Cir. 2016). The district court did not clearly err.

As we have explained, Romero-Lobato concedes that notice was mailed, and his only argument is that the address to which it was mailed was faulty. In a finding we cannot disturb, the district court concluded that Romero-Lobato twice signed for delivery of mail sent to that same address. For our purposes, then, Romero-Lobato has effectively conceded that his notice of hearing was mailed to an address where he could be reached. Based on that concession, it was not clear error for the district court to conclude that Romero-Lobato actually received the mailing.

c. Romero-Lobato also argues that, even if the various documents were all validly served on him, his deportation proceedings were still flawed because the INS failed to give notice to his mother. Romero-Lobato relies on Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), arguing that because he was a minor at the time of the proceedings, the INS needed to give notice to his mother as well. But our decision in Flores-Chavez requires notice only to guardians into whose custody a minor is formally released, and Romero-Lobato was not released into his mother's custody. See Cruz Pleitez v. Barr, 938 F.3d 1141, 1146 (9th Cir. 2019).

2. Alternatively, Romero-Lobato argues that the proceedings were fundamentally unfair because his order to report affirmatively misled him by stating that "[a] review of your file indicates there is no administrative relief which may be extended to you." As the government now concedes, that statement was incorrect. See United States v. Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012).

Although Romero-Lobato has established a due-process violation, that is only half the inquiry, because Romero-Lobato can demonstrate fundamental unfairness under section 1326(d) only if he also shows that he suffered prejudice as a result of being misled. To show prejudice, Romero-Lobato must show, at minimum, that he could have had his in-absentia removal order rescinded and could thereby have been considered for further relief. See 8 U.S.C. §§ 1252b(e)(1), (e)(5) (1994) (repealed 1996). And to demonstrate that his removal order warranted rescission, he would need to show that he suffered from "exceptional circumstances" or received inadequate notice. Id. § 1252b(c)(3).

Romero-Lobato argues that his youth at the time of the hearing qualifies as an exceptional circumstance. But that term encompasses only circumstances "such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances." 8 U.S.C. § 1252b(f)(2) (1994) (repealed 1996). We cannot conclude that Romero-Lobato's age-he was 16 at the time of his removal hearing-was an impediment comparable to serious illness or the death of a relative.

As for the other basis for rescission, section 1252b(c)(3)(B) allows for a motion to reopen if "the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2)." (emphasis added). In turn, subsection (a)(2) requires notice either by personal service or certified mail. See 8 U.S.C. § 1252b(a)(2)(A) (1994) (repealed 1996). For reasons already discussed, we cannot disturb the district court's findings that the order to show cause was both personally served on and sent by certified mail to Romero-Lobato.

We also cannot disturb the district court's finding that Romero-Lobato did not demonstrate inadequate notice of the time and place of his hearing. As the district court noted at the outset, Romero-Lobato "fail[ed] to address" how the misleading order to report deprived him of an opportunity to make an argument based on inadequate notice under section 1252b(a)(2), "which under Local Criminal Rule 47-3, constitutes consent to denial of the argument." Nevertheless, the district court went on to observe that "[t]he record is silent on why defendant did not show up for his removal hearing," adding that Romero-Lobato "does not provide any explanation for his absence in his brief."

To be sure, the record does not contain evidence that the notice of hearing was served in the manner required by section 1252b(a)(2). (Although Romero-Lobato conceded that the notice was "sent" in a "mailing," he did not say whether it was sent by certified mail.) But because the record was silent-and, as noted, Romero-Lobato did not argue the point-the court was entitled to conclude that Romero-Lobato had not shown that he would have been able to "demonstrate[]" inadequate notice so as to be entitled to rescission. 8 U.S.C. § 1252b(c)(3)(B) (1994) (repealed 1996). In other words, the gaps in the record do not mean that additional findings are required; they simply mean that Romero-Lobato did not meet his burden. We therefore have no "definite and firm" conviction that the district court erred. Hylton, 30 F.4th at 846 (citation omitted).

AFFIRMED.

KOH Circuit Judge, dissenting.

I agree...