9th Circuit upholds illegal reentry conviction, ruling the defendant failed to show his prior deportation…
United States v. Rodriguez Ramirez
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9th Circuit upholds illegal reentry conviction, ruling the defendant failed to show his prior deportation order was improper or fundamentally unfair under federal law.
Why it matters
The Ninth Circuit affirmed the district court's refusal to dismiss an illegal reentry charge against Omar Rodriguez Ramirez. Rodriguez argued that his 2021 administrative removal order was legally flawed and should not be used as the basis for his current charge, but the court found he failed to meet the legal requirements to challenge that order. Specifically, he could not show he was improperly denied a chance to appeal the removal, and he could not show he was actually harmed by any procedural problem in his deportation proceeding.
Who it affects
This ruling primarily affects non-citizens who have been removed from the United States and later charged with illegal reentry, particularly those who wish to challenge the validity of a prior removal order as a defense. It also guides immigration officers and federal prosecutors on when such collateral challenges to removal orders can succeed.
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Decision issued Jul 13, 2026
Unpublished opinion
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Jul 13, 2026 · Unpublished opinion
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Omar Rodriguez Ramirez was charged with illegal reentry into the United States under federal law, which makes it a crime for a previously removed person to return without permission. The charge rested on a removal order issued against him in September 2021. Rodriguez asked the court to dismiss the charge by attacking the validity of that underlying removal order, arguing it was legally defective and should not count. Federal law allows a defendant in an illegal reentry case to challenge a prior removal order, but only if the defendant can satisfy three requirements: first, that they exhausted available administrative remedies; second, that the removal proceeding improperly denied them the opportunity for judicial review; and third, that the removal order was fundamentally unfair. The court found Rodriguez failed on the second requirement. He was notified in writing that he could appeal his removal to a federal appeals court within 30 days. An immigration officer's statement that he would be deported 'no matter what' did not legally prevent him from filing such an appeal. Even if an officer discouraged him from calling a lawyer at the time of removal, Rodriguez did not explain why he could not have filed an appeal after he was removed. On the third requirement, the court agreed with Rodriguez that there was a due process violation because he was served notice, issued a final removal order, and deported all on the same day, giving him no real time to respond. However, to win on this point, Rodriguez also had to show that this violation actually harmed him by showing he had a plausible path to relief. He argued that with more time and a lawyer, he could have overturned his 2018 California assault conviction and then sought to block the removal order. The court rejected this argument, finding insufficient evidence that his prior criminal defense attorney acted unreasonably, and little support for the idea that he would have turned down his plea deal given the video evidence against him and the potential four-year sentence he faced at trial. Because the September 2021 administrative removal order was valid and sufficient to support the illegal reentry charge, the court affirmed the conviction. The panel was unanimous and there was no dissent noted in the opinion.
CITATION AND RECORD
Record source: CourtListener
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-814; 24-837 D.C. No. Plaintiff - Appellee, 3:23-cr-00206-BTM-1; 3:22-cr- 00114-BTM-1 v. MEMORANDUM* OMAR ULISES RODRIGUEZ RAMIREZ, AKA Omar Ulises Rodriguez-Ramirez, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding Submitted July 9, 2026** Pasadena, California Before: RAWLINSON and SANCHEZ, Circuit Judges, and FITZWATER, District Judge.*** Omar Rodriguez Ramirez (“Rodriguez”) appeals the district court’s denial of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. his motion to dismiss the information after being charged with illegal reentry under 8 U.S.C. § 1326. His illegal reentry charge rests on two removal orders, a September 2021 administrative removal order and a December 2021 expedited removal order. We review de novo the denial of a motion to dismiss under § 1326(d). United States v. Gambino-Ruiz, 91 F.4th 981, 984 (9th Cir. 2024). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. Rodriguez has not properly mounted a collateral attack to his September 2021 administrative removal order under 8 U.S.C. § 1326(d). To collaterally attack a predicate removal order, a non-citizen must satisfy three requirements: “(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). 2. Rodriguez has not shown that his administrative removal proceeding “improperly deprived” him “of the opportunity for judicial review.” Id. § 1326(d)(2). Rodriguez was served a final administrative removal order and shown a notice of intent to remove, which notified him that could file an appeal “with the appropriate U.S. Circuit Court of Appeals within 30 calendar days” of removal. Rodriguez has not identified any obstacle in his removal proceeding that prevented him from exercising his right to appeal. An immigration officer’s statement that 2 24-814 Rodriguez would be deported “no matter what” did not preclude Rodriguez’s appeal. See United States v. Portillo-Gonzalez, 80 F.4th 910, 920 (9th Cir. 2023) (rejecting the contention that an immigration judge’s “misrepresentation” about the petitioner’s eligibility for relief satisfies § 1326(d)(2)). And even if, as Rodriguez testified, an immigration officer dissuaded him from calling an attorney at the time of his removal, Rodriguez does not explain why he could not file an appeal after his removal. 1 3. Rodriguez has not shown that his administrative removal order was “fundamentally unfair.” 8 U.S.C. § 1326(d)(3). We agree with Rodriguez that he was denied due process because he was served a notice of removal, issued a final administrative removal order, and deported on the same day. However, Rodriguez has not shown that “he suffered prejudice as a result” of that violation. Gambino- Ruiz, 91 F.4th at 985 (citation omitted). To show prejudice, Rodriguez must show that he had “plausible” grounds for relief. United States v. Cisneros-Rodriguez, 813 F.3d 748, 761 (9th Cir. 2015). Rodriguez has not done so here. Rodriguez argues that, had he been afforded time to obtain a lawyer, he could have obtained a lawyer, set aside his guilty plea for his 2018 state assault conviction based on that criminal defense 1 Rodriguez’s argument that his waiver of appeal was not knowing and voluntary, is inapposite because all agree that Rodriguez never waived his right to appeal. 3 24-814 counsel’s purported ineffective assistance, and then obtained relief from his administrative removal. We disagree that Rodriguez’s prior defense counsel’s representation was unreasonable, and there is little evidence to support Rodriguez’s position that he would have rejected a plea deal, especially in light of the video evidence that stood against him, and the possible four-year sentence he would have faced had he gone to trial, see Cal. Penal Code § 245(a)(1). See People v. Patterson, 391 P.3d 1169, 1180 (Cal. 2017) (requiring a defendant to show that a “reasonable probability” that “but for his counsel’s incompetence, he would not have pled guilty”). Accordingly, Rodriguez has not properly mounted a collateral attack to his administrative removal order under 8 U.S.C. § 1326(d). AFFIRMED. 2 2 Because Rodriguez’s administrative removal order is sufficient to sustain the Government’s illegal reentry indictment, we do not reach the expedited removal order. See 8 U.S.C. § 1326(a). 4 24-814
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