VILLA–ANGUIANO v. HOLDER 873 Cite as 727 F.3d 873 (9th Cir. 2013)

agency action forces litigation, and the costs under EAJA is reversed. The case agency then tries to avoid such liability by is remanded for an award of fees and reasonable behavior during the litiga- costs. tion[.]’’) (first alteration in original (quot- REVERSED AND REMANDED. ing H.R.Rep. No. 98–992, pp. 9, 13 (1984))). Even if we were to reach the issue, we would conclude that the government’s liti- gation position—defending the ALJ’s er- rors on appeal—lacked the requisite justi- fication. See Sampson, 103 F.3d at 922 , (‘‘It is difficult to imagine any circum- stance in which the government’s decision to defend its actions in court would be substantially justified, but the underlying administrative decision would not.’’) (quot- ing Flores v. Shalala, 49 F.3d 562, 570 n. Alejandro Israel VILLA–ANGUIANO, 11 (9th Cir.1995)) (internal quotation Petitioner, marks omitted). Although the govern- v. ment proffers a lengthy defense of the ALJ’s decision, it largely reiterates argu- Eric H. HOLDER, Jr., Attorney ments that we rejected in the previous General, Respondent. appeal. Given the serious flaws in the No. 08–74585. ALJ’s analysis, we are not persuaded that the government reasonably chose to de- Court of Appeals, fend the ALJ’s decision in this action. Ninth Circuit. [9] The district court concluded that Argued and Submitted April 9, 2013. the government’s position was substantial- ly justified because the government pre- Filed Aug. 14, 2013. vailed at the administrative and district Background: , a native of Mexico court levels before losing in this court. and lawful permanent resident of the Unit- Although it was proper for the district ed States, petitioned for review of an order court to consider the government’s success of the Immigration and Customs Enforce- in the district court as part of the EAJA ment (ICE) agency, which reinstated prior analysis, see Lewis v. Barnhart, 281 F.3d removal order. 1081, 1084 (9th Cir.2002), the court erred by considering the government’s success at Holding: The Court of Appeals, Berzon, the administrative level. The ALJ’s deci- Circuit Judge, held that, as a matter of sion was not supported by substantial evi- first impression, ICE improperly reinstat- dence. That the ALJ agreed with the ed removal order after district court found government, therefore, does not support underlying to have the conclusion that the government’s posi- violated alien’s due process rights. tion was substantially justified. Petition granted, order vacated, and mat- CONCLUSION ter remanded. The order of the district court denying Tallman, Circuit Judge, dissented and filed Meier’s motion for attorney’s fees and opinion. 874 727 FEDERAL REPORTER, 3d SERIES

1. Aliens, Immigration, and Citizenship form and Immigrant Responsibility Act of O377 1996, § 305(a), 8 U.S.C.A. § 1231(a)(5); 8 To mount a successful collateral at- C.F.R. § 241.8(a). tack on a prior removal order, an alien 5. Aliens, Immigration, and Citizenship who was convicted of an aggravated felony O370 and was not properly advised of his right to counsel or did not waive this right must Reinstatement of a prior removal or- show that he was actually prejudiced by der is neither automatic nor obligatory; if this due process violation. U.S.C.A. the Attorney General finds an alien has Const.Amend. 5; Immigration and Nation- reentered the United States illegally after ality Act, § 276(d), 8 U.S.C.A. § 1326(d). having been removed, the prior order can be reinstated from its original date, pro- 2. Aliens, Immigration, and Citizenship vided the requirements of the applicable O 347 rule have been satisfied. Illegal Immigra- Alien is not required to demonstrate tion Reform and Immigrant Responsibility prejudice as a result of a deprivation of the Act of 1996, § 305(a), 8 U.S.C.A. right to counsel to prevail on a petition for § 1231(a)(5); 8 C.F.R. § 241.8(a, b). review of a removal order. U.S.C.A. Const.Amend. 6; Immigration and Nation- 6. Aliens, Immigration, and Citizenship ality Act, § 276(d), 8 U.S.C.A. § 1326(d). O370 3. Aliens, Immigration, and Citizenship Immigration and Customs Enforce- O403(1) ment (ICE) agents, to whom statute dele- Except where constitutional claims or gated the decision to reinstate a prior re- questions of law arise in the context of moval order, have discretion not to pursue reinstatement and the petitioner can dem- streamlined reinstatement procedures. Il- onstrate a gross miscarriage of justice in legal Immigration Reform and Immigrant the original removal proceedings, review of Responsibility Act of 1996, § 305(a), 8 a reinstatement order by the Court of U.S.C.A. § 1231(a)(5). Appeals is limited to assessing Immigra- 7. Aliens, Immigration, and Citizenship tion and Customs Enforcement’s (ICE’s) O370 determination of the factual predicates for After district court found in alien’s reinstatement: (1) that the petitioner is an prosecution for illegal reentry that alien alien, (2) who was subject to a prior re- was deprived of his right to counsel in moval order, and (3) who illegally reen- group removal proceeding, in violation of tered the United States. Illegal Immigra- his due process rights, and thus invalidat- tion Reform and Immigrant Responsibility ed subject removal order and dismissed Act of 1996, § 305(a), 8 U.S.C.A. charge, it was improper for Immigration § 1231(a)(5). and Customs Enforcement (ICE) to simply 4. Aliens, Immigration, and Citizenship rely on pre-prosecution determination to O370 reinstate that removal order; instead, ICE Determination whether an alien meets was required to (1) provide alien with post- the factual predicates for reinstatement of prosecution opportunity to make written a removal order is made by an immigra- or oral statement addressing expedited re- tion agent, not a judge, as the alien has no instatement determination in light of facts right to be heard by a judge prior to found and legal conclusions reached in reinstatement. Illegal Immigration Re- criminal case, and (2) independently reas- VILLA–ANGUIANO v. HOLDER 875 Cite as 727 F.3d 873 (9th Cir. 2013)

sess whether to rely on order issued in of Justice, Civil Division, Washington, prior proceedings as basis for deportation D.C., for Respondent. or instead to instigate full removal pro- On of an Order of ceedings. U.S.C.A. Const.Amend. 5; Ille- the Board of Immigration Appeals. Agen- gal Immigration Reform and Immigrant cy No. A090–068–616. Responsibility Act of 1996, §§ 304(a)(3), 304(a)(3), 305(a), 8 U.S.C.A. §§ 1229, Before: MARSHA S. BERZON, 1229a, 1231(a)(5); Immigration and Nation- RICHARD C. TALLMAN, and MILAN ality Act, § 276, 8 U.S.C.A. § 1326; 8 D. SMITH, JR., Circuit Judges. C.F.R. § 241.8(a, b).

8. Constitutional Law O4437 OPINION Due process entitles an unlawfully BERZON, Circuit Judge: present alien to consideration of issues Alejandro Israel Villa–Anguiano (‘‘Villa’’) relevant to the exercise of an immigration petitions for review of the government’s officer’s discretion. U.S.C.A. Const. reinstatement of a removal order issued in Amend. 5. 1997. Villa contends that the Immigration and Customs Enforcement (‘‘ICE’’) agency 9. Constitutional Law O3879 of the Department of Homeland Security Fundamental requirement of due pro- (‘‘DHS’’) may not deport him on the basis cess is the opportunity to be heard at a of his prior removal order, because a fed- meaningful time and in a meaningful man- eral district court found that due process ner. U.S.C.A. Const.Amend. 5. violations in his 1997 immigration hearing 10. Aliens, Immigration, and Citizenship rendered the removal order invalid as a O370 predicate for criminal prosecution under 8 U.S.C. § 1326. Immigration and Customs Enforce- ment (ICE) must consider all favorable We have jurisdiction under 8 U.S.C. and unfavorable factors relevant to the § 1252(a)(1) to review a reinstatement or- exercise of its discretion in considering der, see Castro–Cortez v. INS, 239 F.3d whether to reinstate a removal order; fail- 1037, 1044 (9th Cir.2001), abrogated on ure to do so constitutes an abuse of discre- other grounds by Fernandez–Vargas v. tion. Illegal Immigration Reform and Im- Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 migrant Responsibility Act of 1996, L.Ed.2d 323 (2006); accord Padilla v. Ash- § 305(a), 8 U.S.C.A. § 1231(a)(5); 8 C.F.R. croft, 334 F.3d 921, 924 (9th Cir.2003), and § 241.8(a, b). retain jurisdiction under § 1252(a)(2)(D) to consider ‘‘constitutional claims or questions of law raised upon a petition for review,’’ see Garcia de Rincon v. DHS, 539 F.3d 1133, 1137–38 (9th Cir.2008). For the rea- Karla L. Kraus (argued), Kraus Law sons stated below, we grant Villa’s peti- Corporation, San Diego, CA, for Petition- tion, vacate the reinstatement order, and er. remand to ICE for further proceedings. Carol Federighi (argued), Senior Litiga- tion Counsel; Tony West, Assistant Attor- I. ney General; William C. Peachey, Assis- This case comes before us in an unusual tant Director, United States Department posture. Villa, who entered the United 876 727 FEDERAL REPORTER, 3d SERIES

States from Mexico at the age of one, pez, 481 U.S. 828, 837–38, 107 S.Ct. 2148, became a lawful permanent resident in 95 L.Ed.2d 772 (1987) (permitting an alien 1989. Following a conviction for voluntary to seek review of the deportation order manslaughter in 1993 and service of his used as a predicate element of an illegal stipulated sentence, Villa was ordered de- reentry offense if he was denied judicial ported in 1997 at a group hearing before review of prior removal proceedings). He an immigration judge in El Centro, Cali- contended that due process violations in fornia. He was physically removed in 1999 the underlying removal proceedings pre- but subsequently reentered the United cluded him from obtaining judicial review States without permission in 2001. On of his 1997 deportation order. The gov- May 3, 2008, Villa was arrested by local ernment conceded that Villa was eligible in law enforcement following a traffic stop. 1997 for relief under Immigration and Na- The next day, the government determined tionality Act (‘‘INA’’) § 212(c) and that the that Villa was ‘‘subject to removal by rein- Immigration Judge did not inform him of statement of the prior [1997] order,’’ pur- that fact. But, the government argued suant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 212(c) relief was not plausible at the § 241.8. time of the immigration hearing, which Villa concedes that he was provided no- predated INS v. St. Cyr, 533 U.S. 289, 121 tice and an opportunity to contest rein- S.Ct. 2271, 150 L.Ed.2d 347 (2001), and statement on May 4, 2008, as required by 8 thus Villa could not show prejudice. C.F.R. § 241.8(b). His signature appears on the Notice of Intent/Decision to Rein- [1, 2] The district court rejected the state Prior Order form, beside the state- government’s arguments, finding: (1) that ment, ‘‘I do not wish to make a statement Villa had demonstrated a deprivation of his contesting this determination.’’ The gov- right to counsel in the group immigration ernment did not, however, proceed at that hearing; and (2) that Villa was prejudiced point with the actual removal. Instead, by the resulting due process violation, be- the government decided to prosecute Villa cause he was eligible for relief under for illegal reentry. § 212(c) at the time of his removal pro- Before the district court on the illegal ceedings, and was not so informed. Con- reentry charge, and now with the assis- sequently, the district court held, ‘‘the out- tance of counsel, Villa collaterally attacked come of [his] immigration proceeding was his 1997 removal order. See 8 U.S.C. potentially affected by the denial of his § 1326(d); United States v. Mendoza–Lo- right to counsel.’’ 1 The court held the

1. ‘‘[T]o mount a successful collateral attack Montes–Lopez v. Holder, 694 F.3d 1085, 1086, on a prior removal order under § 1326(d), an 1090, 1093–94 (9th Cir.2012). alien who was convicted of an aggravated Because Villa does not petition for review felony and was not properly advised of his of the 1997 removal order in this court, we right to counsel or did not waive this right need not determine at this stage whether he must show that he was actually prejudiced by was plausibly eligible for relief under § 212(c) this due process violation,’’ United States v. at the time of his immigration hearing. In Reyes–Bonilla, 671 F.3d 1036, 1049 & n. 11 any event, the record does not contain suffi- (9th Cir.2012), cert. denied, ––– U.S. ––––, 133 cient information about the nature of Villa’s S.Ct. 322, 184 L.Ed.2d 190 (2012). At the criminal conviction or the equities of his case same time, however, a petitioner need not to enable us to make such a determination. demonstrate prejudice as a result of a depri- Nor need we resolve whether Villa must dem- vation of the right to counsel to prevail on a onstrate prejudice to obtain relief. Rather, as petition for review of a removal order. See discussed infra, our question is whether Vil- VILLA–ANGUIANO v. HOLDER 877 Cite as 727 F.3d 873 (9th Cir. 2013)

1997 removal order invalid as the predicate Alien Found in the United States.’’ It for criminal prosecution under § 1326 and went on, however, to state erroneously so, on October 9, 2008, dismissed Villa’s that Villa ‘‘served 156 days confinement in indictment. federal custody for violation of 8 USC On October 10, 2008, the day after Vil- 1326(a)—Deported Alien Found in the la’s criminal proceedings were dismissed, United States,’’ implying that Villa had immigration officials ‘‘reinstated on today’s been convicted of illegal reentry (emphases date’’ the ‘‘prior order of removal by an added). The addendum nowhere indicated Immigration Judge,’’ and Villa was physi- the grounds on which the § 1326 indict- cally removed. Villa was neither notified ment was dismissed or evidenced any at that point that the order was going to awareness by ICE officials that the district be issued and executed nor given an op- court had held the original removal order portunity to object, either in writing or invalid. It concluded with the statement: orally, to the reinstatement. He was de- ‘‘Subject’s prior order of removal by an nied such opportunity despite the very rel- Immigration Judge will be reinstated on evant development that occurred in the today’s date.’’ Villa was immediately re- five months since reinstatement proceed- moved. ings were initiated—namely, the district This petition for review followed. court’s determination that the 1997 remov- al order was constitutionally infirm. II. ICE was aware of the criminal prosecu- tion from the outset. The Record of De- [3] The INA’s reinstatement provision, portable/Inadmissible Alien, Form I–213, 8 U.S.C § 1231(a)(5), specifically bars relit- dated May 4, 2008, indicated that Villa was igation of the merits of the reinstated re- ‘‘being held in DHS custody pending crimi- moval order—i.e. determination of an nal prosecution for violation of 8 U.S.C. alien’s removability or eligibility for relief.2 § 1326.’’ But the addendum to the form, Accordingly, except where constitutional dated October 10, 2008, reflects confusion claims or questions of law arise in the regarding the result of that criminal case. context of reinstatement and ‘‘the petition- The addendum correctly noted, ‘‘On Octo- er can demonstrate a ‘gross miscarriage of ber 09, 2008, Subject’s case was dismissed justice’ in the [original removal] proceed- for violation of 8 USC 1326(a)—Deported ings,’’ Garcia de Rincon, 539 F.3d at 1138,3

la’s reinstatement proceedings accorded him under this chapter, and the alien shall be adequate due process, given the discretion removed under the prior order at any time available to immigration agents as to how to after the reentry. pursue removal of an alien following the 8 U.S.C. § 1231(a)(5). alien’s successful collateral challenge to the underlying removal order as part of a § 1326 3. Although § 1231(a)(5) limits the scope of prosecution. judicial review of reinstated removal orders, § 1252(a)(2)(D) reinstates this court’s juris- 2. The provision states in full: diction over certain constitutional claims and If the Attorney General finds that an alien questions of law. See Garcia de Rincon, 539 has reentered the United States illegally af- F.3d at 1138 (citing § 1252(a)(2)(D)); see also ter having been removed or having depart- Martinez–Merino v. Mukasey, 525 F.3d 801, ed voluntarily, under an order of removal, 804 (9th Cir.2008) (applying a gross miscar- the prior order of removal is reinstated riage of justice standard without deciding from its original date and is not subject to whether § 1252(a)(2)(D) ‘‘vests circuit courts being reopened or reviewed, the alien is not with the ability to review reinstated removal eligible and may not apply for any relief orders’’); Lorenzo v. Mukasey, 508 F.3d 1278, 878 727 FEDERAL REPORTER, 3d SERIES our review of a reinstatement order is an alien has reentered this country illegal- limited to assessing ICE’s determination ly after having been removed TTT the prior of the factual predicates for reinstatement: order can be reinstated from its original ‘‘(1) [that] petitioner is an alien, (2) who date,’’ provided the requirements of 8 was subject to a prior removal order, and C.F.R. § 241.8(a) and (b) have been satis- (3) who illegally reentered the United fied. Id. (emphasis added); accord Galin- States.’’ Morales–Izquierdo v. Gonzales, do–Romero v. Holder, 640 F.3d 873, 879 486 F.3d 484, 495–96 (9th Cir.2007) (en (9th Cir.2011). Particularly when there is banc). any question about whether the require- [4] Under 8 C.F.R. § 241.8(a), the reg- ments of § 241.8 have been satisfied, and ulation implementing 8 U.S.C. even when they have been, an ICE officer § 1231(a)(5), the determination whether an may decide to forgo reinstatement of a alien meets the factual predicates for rein- prior order of removal in favor of initiating statement is made by an immigration new removal proceedings, with the accom- agent, not a judge; an alien has no right to panying procedural rights to counsel and a be heard by a judge prior to reinstatement hearing in immigration court. See 8 of a removal order. See Morales–Izquier- U.S.C. § 1229a(b)(4) (describing an alien’s do, 486 F.3d at 493–95, 497 (upholding the rights in removal proceedings). validity of 8 C.F.R. § 241.8 under the INA [6] ICE regularly exercises ‘‘prosecu- and the Constitution). An alien is, howev- torial discretion’’ in ‘‘a broad range of dis- er, entitled to notice and an opportunity to cretionary enforcement decisions,’’ includ- make ‘‘a written or oral statement contest- ing ‘‘deciding to issue, reissue, serve, file, ing the determination.’’ § 241.8(b). Al- or cancel a Notice to Appear (NTA) [and] though we have held that this streamlined TTT seeking or other reinstatement procedure does not offend forms of removal by means other than a due process, we expressly ‘‘[left] open the formal removal proceeding in immigration possibility that individual petitioners may court.’’ Memorandum from John Morton, raise procedural defects in their particular Director, ICE, on Exercising Prosecutorial cases.’’ Morales–Izquierdo, 486 F.3d at Discretion Consistent with the Civil Immi- 496. gration Enforcement Priorities of the [5] Even though an alien is not entitled Agency for the Apprehension, Detention to a hearing before an immigration judge and Removal of Aliens, at 2 (June 17, on the issue of reinstatement of a prior 2011). Immigration officers ‘‘who have au- removal order, nothing in 8 U.S.C. thority to institute immigration removal § 1231(a)(5) or its implementing regula- proceedings or to otherwise engage in civil tions deprives the agency of discretion to immigration enforcement,’’ id. at 3, ‘‘are afford an alien a new plenary removal not only authorized by law but expected to hearing. ‘‘Reinstatement of a prior order exercise discretion in a judicious manner of removal is not automatic.’’ Alcala v. at all stages of the enforcement process,’’ Holder, 563 F.3d 1009, 1013 (9th Cir.2009). Memorandum from Doris Meissner, Com- Nor is it obligatory: ‘‘Under 8 U.S.C. missioner, Immigration and Naturalization § 1231(a)(5), if the Attorney General finds Service, on Exercising Prosecutorial Dis-

1282 (10th Cir.2007); Debeato v. Att’y Gen. of Ashcroft, 342 F.3d 667, 682 n. 13 (7th Cir. the U.S., 505 F.3d 231, 235 (3d Cir.2007); 2003) (discussing the gross miscarriage of jus- Ramirez–Molina v. Ziglar, 436 F.3d 508, 513– tice standard applied to collateral attacks on 14 (5th Cir.2006); cf. Robledo–Gonzales v. prior deportation proceedings). VILLA–ANGUIANO v. HOLDER 879 Cite as 727 F.3d 873 (9th Cir. 2013) cretion, at 1 (Nov. 17, 2000). Thus, ICE appeal to the Board of Immigration Ap- agents, to whom § 1231(a)(5) delegates the peals, and right to seek judicial review in decision to reinstate a prior removal order, a court of appeals), following dismissal of may exercise their discretion not to pursue a § 1326 indictment because of a success- streamlined reinstatement procedures. ful collateral attack on the underlying re- moval order. See 8 U.S.C. §§ 1229, III. 1229a. Here, however, ICE reinstated [7] Villa does not contest the factual Villa’s prior order and executed it as soon predicates for the reinstatement order. as his criminal case was dismissed, with- Nor has he asserted a gross miscarriage of out providing Villa an opportunity to ex- justice in the underlying immigration hear- plain the developments in district court ing, which could justify this court’s review or correct any misimpressions regarding of the constitutionality of the prior removal those developments, and, it appears, with- order.4 Instead, Villa challenges the pro- out independently reconsidering its use of priety of reinstating a removal order that expedited proceedings in light of the con- has been invalidated on constitutional stitutional infirmities in the underlying grounds for purposes of criminal prosecu- immigration hearing identified by the dis- tion.5 trict court. This precise situation has not arisen in any reported cases of which we are As explained, an incorrect statement on aware. The government explained at oral the addendum to the Form I–213 states argument a likely reason for that gap: that Villa served time for a § 1326 convic- ‘‘In many cases where the district court tion. This statement indicates that the does dismiss the indictment [ICE offi- immigration agents responsible for execut- cers] go ahead and put the alien in regu- ing Villa’s reinstatement order were either lar removal proceedings.’’ That is, rather unaware of, or misinformed about, the dis- than reinstating an order found to be an trict court’s findings regarding the prior invalid predicate for a criminal reentry removal proceedings, and so almost surely prosecution, the agency often exercises its did not take them into account in deter- discretion to initiate plenary removal pro- mining how to proceed. Certainly, the ceedings (with the requisite notice, hear- Form did not explain why Villa’s criminal ing before an immigration judge, right to case was dismissed.6 The government

4. The government contends that even if we migration officials ‘‘did not provide TTT a had jurisdiction to review Villa’s 1997 remov- meaningful opportunity to contest the rein- al order under § 1252(a)(2)(D), that jurisdic- statement’’ of his removal order, as 8 C.F.R. tional savings clause does not apply when an § 241.8(b) typically provides, and he sought alien’s petition for review is untimely under remand ‘‘for proceedings that comport with § 1252(b)(1), because not filed within thirty Constitutional due process.’’ Otherwise, rein- days of the final order of removal. Because statement amounted to ‘‘a continued violation this case does not directly involve a challenge of TTT Constitutional due process rights.’’ to the 1997 order, see supra note 1, we need Villa thus asserted a constitutional violation not decide whether § 1252(b)(1) would pre- curable only through additional process, con- clude such review. sistent with § 241.8(b). We therefore must, and do, adjudicate the merits of that asser- 5. Judge Tallman accuses us of advocacy, on tion. the theory that ‘‘Villa failed to make this due process challenge in his briefing.’’ Dissent at 6. Judge Tallman’s contrary reading of the I– 27; see also Dissent at 884 n. 1. Not so. 213 addendum interpolates words found no- Before this Court, Villa complained that im- where in the actual language. Compare I–213 880 727 FEDERAL REPORTER, 3d SERIES agreed, at argument, that the agency ordi- make a written or oral statement address- narily would not have done what it did ing the expedited reinstatement determi- here. nation in light of the facts found and the To be sure, the pendency of reinstate- legal conclusions reached in the course of ment proceedings does not provide an the criminal case; and (2) independently alien with a new avenue to challenge the reassess whether to rely on the order is- underlying removal order. As we made sued in the prior proceedings as the basis clear in Morales–Izquierdo, allowing an for deportation or instead to instigate full alien to manufacture an opportunity to removal proceedings.7 contest his earlier removal by reentering the country illegally, thereby triggering We so conclude for the following rea- removal proceedings anew, would create sons: The regulation implementing 8 perverse incentives. See 486 F.3d at 498. U.S.C. § 1231(a)(5) requires the immigra- But we have not considered a situation tion officer effecting reinstatement to ‘‘con- like the present one, in which the govern- sider all relevant evidence, including state- ment itself invites judicial scrutiny of the ments made by the alien and any evidence underlying removal order by instigating a in the alien’s possession.’’ 8 C.F.R. criminal prosecution under § 1326. We § 241.8(a)(3). The alien must be allowed conclude that when, as a result of such to make a statement contesting the rein- scrutiny, a district court finds constitution- statement determination, and the officer al infirmities in the prior removal proceed- ‘‘shall consider whether the alien’s state- ings that invalidate the prior removal for ment warrants reconsideration of the de- purposes of criminal prosecution, the termination.’’ § 241.8(b). agency cannot simply rely on a pre-prose- cution determination to reinstate the prior [8] Those regulatory requirements re- removal order. Instead the agency spect an unlawfully present alien’s right to must—as it may well ordinarily do—(1) be heard prior to removal, a right which provide the alien with an opportunity after the Supreme Court has long recognized as the criminal prosecution is dismissed to grounded in the Due Process Clause.8

Form addendum (Villa ‘‘served 156 days con- 8. See, e.g., Chew v. Colding, 344 U.S. 590, finement in federal custody for violation of 8 597–98, 73 S.Ct. 472, 97 L.Ed. 576 (1953) USC 1326(a)’’), with Dissent at 886–87 n. 4 (‘‘Although Congress may prescribe condi- (concluding that ‘‘the officer noted Villa had tions for [an alien’s] expulsion and deporta- been detained for 156 days awaiting trial on tion, not even Congress may expel him with- the charge that he violated § 1326TTTT’’ (em- out allowing him a fair opportunity to be phases added)). Just as we assume in other heard.’’); Yamataya v. Fisher, 189 U.S. 86, contexts that ‘‘a reasonably competent public 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903) (‘‘[I]t official should know the law,’’ Harlow v. Fitz- is not competent for TTT any executive officer gerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 TTT arbitrarily to cause an alien who has L.Ed.2d 396 (1982), we also assume that im- entered the country, and has become subject migration officials know the legal difference in all respects to its jurisdiction, and a part of between serving time for a particular viola- its population, although alleged to be illegally tion and awaiting trial. here, to be taken into custody and deported without giving him all opportunity to be 7. Once ICE complies with these constitutional heard upon the questions involving his right requirements, it may exercise its lawful dis- to be and remain in the United States.’’); cf. cretion however it sees fit. In this sense, we Shaughnessy v. United States ex rel. Mezei, 345 agree with our dissenting colleague that the U.S. 206, 211, 73 S.Ct. 625, 97 L.Ed. 956 agency need not ‘‘reach a different result’’ on (1953) (‘‘[A]liens who have once passed remand. Dissent at 28. through our gates, even illegally, may be ex- VILLA–ANGUIANO v. HOLDER 881 Cite as 727 F.3d 873 (9th Cir. 2013)

Due process, in turn, entitles an unlawfully agency’s decision as to whether and how to present alien to consideration of issues proceed with his removal. relevant to the exercise of an immigration [10] Moreover, the agency must con- officer’s discretion. Larita–Martinez v. sider all favorable and unfavorable factors INS, 220 F.3d 1092, 1095 (9th Cir.2000), for example, held that due process re- relevant to the exercise of its discretion; quired the Board of Immigration Appeals failure to do so constitutes an abuse of to consider ‘‘all relevant evidence submit- discretion. See An Na Peng v. Holder, ted on appeal’’ when reviewing the wholly 673 F.3d 1248, 1253 (9th Cir.2012) (the discretionary denial of an application for BIA abuses its discretion when it fails to suspension of deportation.9 consider all relevant factors bearing on the balance of equities or an application for [9] For the requirements of relief); Xiao Fei Zheng v. Holder, 644 § 241.8(a)(3), (b) to function as the requi- F.3d 829, 833 (9th Cir.2011) (same); cf. site ‘‘procedural safeguards’’ of the alien’s United States v. $11,500.00 in U.S. Cur- right to due process in the context of rency, 710 F.3d 1006, 1011 (9th Cir.2013) streamlined proceedings, see Morales– (a district court abuses its discretion if it Izquierdo, 486 F.3d at 496, they must ap- fails to consider factors relevant to the ply at the relevant time. ‘‘The fundamen- exercise of its discretion). If the proce- tal requirement of due process is the op- dures used by ICE do not assure that the portunity to be heard at a meaningful time decision-makers obtain the requisite infor- and in a meaningful manner.’’ Mathews v. mation before the decision is made, then it Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, is unlikely that the decision made will be a 47 L.Ed.2d 18 (1976) (internal quotation proper one under the abuse of discretion marks omitted). For Villa to have had a standard. meaningful opportunity to address the pro- posed reinstatement of his removal order, The Third Circuit has considered a then, he must have been afforded that somewhat analogous circumstance, in opportunity at a time and in a manner that which an alien contested reinstatement on would allow him to present pertinent infor- the asserted grounds that his prior remov- mation. As the government indicated at al order was invalidated by a court and oral argument, the district court’s invalida- that he did not reenter the country illegal- tion of Villa’s 1997 removal order as a ly. See Ponta–Garcia v. Att’y Gen. of the basis for § 1326 prosecution, due to consti- U.S., 557 F.3d 158, 164 (3d Cir.2009). tutional infirmities in the original removal Recognizing the petitioner’s atypical cir- proceedings, is ordinarily pertinent to the cumstances, the Third Circuit remanded

pelled only after proceedings conforming to plaining ‘‘when an agency refuses to act it traditional standards of fairness encompassed generally does not exercise its coercive power in due process of law.’’). over an individual’s liberty or property,’’ and thus leaves the courts with little to review. 9. The dissent marshals Heckler v. Chaney, Heckler, 470 U.S. at 832, 837–38, 105 S.Ct. 470 U.S. 821, 831, 105 S.Ct. 1649, 84 1649. In contrast, where, as here, an agency L.Ed.2d 714 (1985), to dispute the existence has taken or is proposing to take action, of any cognizable liberty interest ‘‘in how an ‘‘that action itself provides a focus for judi- agency exercises its purely discretionary deci- cial review.’’ Id. at 832, 105 S.Ct. 1649. sion on whether to prosecute.’’ Dissent at Heckler thus does not relieve the courts of 885. Heckler, however, held only that an ad- their duty to review the constitutionality of ministrative agency’s decision not to act was agency action, whether discretionary or oth- unreviewable under 5 U.S.C. § 701(a)(2), ex- erwise, when called upon to do so. 882 727 FEDERAL REPORTER, 3d SERIES

the case to ICE for consideration of the his 2008 criminal re-entry charge because alien’s assertions. Id. at 165 (citing 8 the 1997 removal order was technically C.F.R. § 241.8(a)(3)). The court observed flawed. Congress has by statute strictly that although reinstatement pursuant to limited what process is due to a petitioner the streamlined procedures adopted by who re-enters after a prior deportation. Congress will be uncontested in most Our court sitting en banc has carefully cases, in the unusual instance in which a limited the scope of our review of reinstat- petitioner raises issues that could affect ed removal orders. See generally Mor- whether ICE pursues removal without a ales–Izquierdo v. Gonzales, 486 F.3d 484 prior hearing, ‘‘more is required [from the (9th Cir.2007) (en banc). My colleagues in agency] than it appears was done here.’’ the majority nonetheless create a new pro- Id. cedural rule by judicial legislation, which the Supreme Court has held we may not IV. do. The government acknowledges that, had The majority holds that whenever the it known of the district court’s findings, it United States chooses to criminally prose- quite possibly would have exercised its cute an alien who unlawfully entered the discretion not to pursue reinstatement of country and fails in that prosecution, an Villa’s 1997 removal order. Consequently, immigration officer—who has already com- plied with all of the statutory and regulato- Villa was prejudiced by the ICE agents’ ry requirements for reinstatement of a misinformation or lack of information re- prior removal order—must give the alien a garding his criminal prosecution, as well new opportunity to implore the officer to as by the absence of an opportunity to decline reinstatement and instead open contest the reinstatement determination at new removal proceedings. It might be a a meaningful time—namely, before the re- perfectly sensible rule if Congress or the instatement order finally issued and was agency prescribed it. But neither Con- executed, and after new, relevant circum- gress nor the agency has done so. In- stances had arisen. Accordingly, we re- stead, the majority’s new rule has only one mand to ICE to provide that opportunity source: the whole cloth from which the and to reconsider its reinstatement deter- majority has woven it. mination in light of the district court’s The Supreme Court has told us it is findings regarding Villa’s 1997 removal ‘‘improper simply to impose deportation proceedings. We express no view as to procedures TTT because the reviewing the outcome of that determination on re- court may find them preferable.’’ Landon mand. v. Plasencia, 459 U.S. 21, 35, 103 S.Ct. 321, The petition is GRANTED, the rein- 74 L.Ed.2d 21 (1982). In an effort to statement order is VACATED, and we impose its preferred procedures into ICE’s REMAND to ICE for reconsideration and process for reinstatement of removal or- further proceedings consistent with this ders, the majority has distorted constitu- disposition. tional due process requirements and un- dercut controlling en banc precedent. I TALLMAN, Circuit Judge, dissenting: respectfully dissent. The alien, a convicted killer who illegally re-entered the United States after his pri- I or deportation, has once again been re- In 1997, the government removed Ale- moved after the district court dismissed jandro Israel Villa–Anguiano (‘‘Villa’’) after VILLA–ANGUIANO v. HOLDER 883 Cite as 727 F.3d 873 (9th Cir. 2013) he finished serving his sentence for volun- The reinstatement statute requires the tary manslaughter. Villa does not dispute Department of Homeland Security to do that he was the alien subject to that re- nothing more to reinstate the removal or- moval order. Nor does he dispute that in der that Villa knowingly flaunted. In 8 2001, he knowingly re-entered the country U.S.C. § 1231(a)(5), Congress ‘‘explicitly without permission and remained until he insulate[d] the removal orders from re- was apprehended on May 3, 2008. And he view[ ] and generally foreclose[d] discre- cannot dispute that the government pro- tionary relief from the terms of the rein- vided him with notice and an opportunity stated order.’’ Fernandez–Vargas v. to be heard regarding the reinstatement of Gonzales, 548 U.S. 30, 35, 126 S.Ct. 2422, his prior removal order—an opportunity 165 L.Ed.2d 323 (2006). The statute pro- he waived on May 4, 2008, when he signed vides in no uncertain terms: underneath a checked box stating, ‘‘I do If the Attorney General finds that an not wish to make a statement contesting alien has reentered the United States this determination.’’ illegally after having been removed or having departed voluntarily, under an The majority concedes that as of that order of removal, the prior order of date, the government needed no more to removal is reinstated from its original exercise its discretion to reinstate his pri- date and is not subject to being re- or order of removal and summarily de- opened or reviewed, the alien is not port him from the United States. How- eligible and may not apply for any relief ever, the immigration officer could not under this chapter, and the alien shall be remove Villa immediately because the removed under the prior order at any United States opted to prosecute Villa for time after the reentry. criminal re-entry under 8 U.S.C. § 1326. 8 U.S.C. § 1231(a)(5). The majority now holds that when the The Department of Homeland Security government chose to criminally prosecute has promulgated 8 C.F.R. § 241.8 to im- Villa and the district court later dis- plement the reinstatement statute. Under missed the charge after Villa brought a the regulation, the immigration officer who collateral attack on the 1997 removal or- issues the reinstatement order must ana- der, this created a new requirement that lyze three criteria. the immigration officer give Villa yet an- other opportunity to be heard. The offi- First, the officer must confirm that the alien has been subject to a prior order of cer must extend this opportunity, says removal. 8 C.F.R. § 241.8(a)(1). This re- the majority, not so that Villa may con- quires the officer to obtain the prior order, test his eligibility for reinstatement, but which the officer in this case did. rather so that he may argue the agency should exercise its prosecutorial discre- Second, the officer must confirm the tion to instead open new removal pro- identity of the alien—that is, make sure ceedings. The majority must concede that the person in question and the alien this requirement has no basis in either who was previously removed are in fact statutory or regulatory law. But it con- one and the same. Id. § 241.8(a)(2). Villa cludes ICE nonetheless abused its discre- does not dispute that the officer did this tion and remands so the agency must re- too. consider its prosecutorial decision, even Third, the officer must confirm that the though Villa is long gone. alien ‘‘unlawfully reentered the United 884 727 FEDERAL REPORTER, 3d SERIES

States.’’ To do this, the officer must ‘‘con- eligible for reinstatement. My colleagues sider all relevant evidence’’ and attempt to must acknowledge that although a district verify any claim that the alien ‘‘was lawful- court may determine that a removal order ly admitted,’’ including a check of any da- does not validly support a criminal prose- tabases available to the officer. Id. cution, that same court has no jurisdiction § 241.8(a)(3). Villa, of course, made no to grant relief from an administrative or- such claim, and how could he? Subject to der of removal. The majority also knows a removal order that required him to stay that under our en banc decision in Mor- outside of the United States, Villa nonethe- ales–Izquierdo v. Gonzales, we do not al- less surreptitiously re-entered the country. low aliens who have defied removal orders He did so without the permission of the and re-entered the United States to put United States government. He therefore themselves in a better position than aliens reentered the country ‘‘unlawfully.’’ ‘‘who respect our laws and wait patiently The district court proceedings could outside our borders seeking lawful admis- not render Villa’s reentry ‘‘lawful.’’ The sion.’’ 486 F.3d at 498. So without any district court had jurisdiction only to de- statutory or regulatory foundation to grant termine whether Villa’s re-entry was relief, the majority falls back on a dubious criminal, not whether it was lawful. procedural due process analysis. The district court’s conclusion that Villa If I understand the majority argument, did not commit a new crime in no way it proceeds in three steps. First, the immi- alters the inquiry for the immigration of- gration officer has the discretion to choose ficer conducting a reinstatement, which is to initiate new removal proceedings in- simply: did this alien violate a removal stead of reinstatement, even if the alien is, order when he entered the United by statute, already susceptible to immedi- States? The answer unquestionably is ate reinstatement. Second, if the district yes. Villa unlawfully re-entered the court dismisses the criminal charge for United States. If the agency decides he illegal re-entry because the alien demon- must go, then he must go. strated fundamentally unfair infirmities in Therefore, both the laws enacted by the original deportation order, the immi- Congress and the Department of Home- gration officer may be more likely to start land Security’s permissible construction of new removal proceedings instead of choos- those laws allowed the immigration officer ing reinstatement. Therefore, if the alien to reinstate Villa’s prior order of removal, succeeds in his defense to the criminal regardless of whether the district court charge, the Due Process Clause now re- concluded that Villa’s re-entry also consti- quires the immigration officer to give the tuted a federal crime. On the limited re- defendant yet another opportunity to be view we may conduct of a reinstatement heard—not to argue that the alien is ineli- proceeding, this suffices to deny relief. gible for reinstatement (because 8 U.S.C. Morales–Izquierdo, 486 F.3d at 491. § 1231(a)(5) and 8 C.F.R. § 241.8 both say Villa clearly is eligible), but to instead II argue that new removal proceedings would The majority implicitly agrees that un- be the more sensible exercise of the agen- der the law as it currently stands, Villa is cy’s prosecutorial discretion.1

1. The majority’s due process argument is a fail to find anywhere in Villa’s briefing. I nice piece of advocacy—and an argument I thought the rule was that petitioners for relief VILLA–ANGUIANO v. HOLDER 885 Cite as 727 F.3d 873 (9th Cir. 2013)

One very important analytical step is 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 missing: the majority provides next to no (1975)). Just as a criminal suspect has no analysis regarding why the Due Process procedural due process right to a hearing Clause compels such a result. Sure, the before a prosecutor to argue for a more majority affords us a cursory citation to lenient charge, Villa possesses no right to Mathews v. Eldridge, 424 U.S. 319, 96 plead for any more than the law provides. S.Ct. 893, 47 L.Ed.2d 18 (1976), a case This is a fundamental separation of powers governing the interest in Social Security issue, which the majority ignores when benefits, ‘‘a statutorily created ‘property’ declaring remand is nonetheless required interest.’’ Id. at 332, 96 S.Ct. 893. But it because the agency somehow abused its provides no case telling us why the Due absolute discretion. Process Clause requires that an agency must provide an alien the opportunity to ‘‘While aliens have a right to fair proce- tell the agency how it should exercise its dures, they have no constitutional right to prosecutorial discretion. force the government to re-adjudicate a Although aliens are entitled to due pro- final removal order by unlawfully reenter- cess of law, they ‘‘must in the first instance ing the country.’’ Morales–Izquierdo, 486 possess a liberty or property interest.’’ F.3d at 498. In a reinstatement proceed- Valencia–Alvarez v. Gonzales, 469 F.3d ing, ‘‘an alien’s rights and remedies are 1319, 1330 n. 13 (9th Cir.2006). Although severely limited.’’ Id. at 497. Villa pos- we have considered aliens to have such an sesses no fewer rights today, having had interest when they are eligible for discre- his removal order reinstated, than he did tionary relief from removal, we certainly the day he unlawfully re-entered the coun- have never held they have any liberty or try because ‘‘[t]he reinstatement order im- property interest in how an agency exer- poses no civil or criminal penalties, creates cises its purely discretionary decision on no new obstacles to attacking the validity whether to prosecute. ‘‘[A]n agency’s de- of the removal order, and does not dimin- cision not to prosecute or enforce, whether ish petitioner’s access to whatever path for through civil or criminal process, is a deci- lawful entry into the United States might sion generally committed to an agency’s otherwise be available to him under the absolute discretion.’’ Heckler v. Chaney, immigration laws.’’ Id. at 498 (citations 470 U.S. 821, 831, 105 S.Ct. 1649, 84 omitted). L.Ed.2d 714 (1985). This common-sense conclusion derives from the steadfast prin- Those laws grant Villa no entitlement to ciple that even citizens are not ‘‘entitled to new removal proceedings. Perhaps Villa judicial oversight or review of the decision would possess a more concrete interest if to prosecute.’’ Albright v. Oliver, 510 U.S. the agency’s regulations in any way spelled 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 out this discretion which the majority in- (1994) (quoting Gerstein v. Pugh, 420 U.S. sists the agency regularly practices.2 Yet

waive any arguments they fail to raise in meaningful opportunity to respond to the sub- briefing, see Lopez–Vasquez v. Holder, 706 stance of the due process argument the ma- F.3d 1072, 1079–80 (9th Cir.2013) (‘‘Lopez– jority has now conjured into an opinion. Vasquez waived his challenge to the BIA’s denial of his motion to reopen by failing to 2. The absence of any statutory or regulatory argue it in his brief.’’), but the majority be- standard whatsoever establishing this discre- lieves a few scattered references to ‘‘due pro- tion easily distinguishes this case from Larita– cess’’ do all the necessary work. The govern- Martinez v. INS, 220 F.3d 1092 (9th Cir.2000), ment, meanwhile, was not provided any where federal law clearly established the peti- 886 727 FEDERAL REPORTER, 3d SERIES the majority cites no statute or regulation Discretion Consistent with the Civil Im- that delineates the criteria by which the migration Enforcement Priorities of the agency must exercise its prosecutorial dis- Agency for the Apprehension, Detention cretion specifically in the context of rein- and Removal of Aliens, at 6 (June 17, statement-or that specifies how Villa’s suc- 2011).3 cessful defense at his criminal trial should impact that discretionary administrative The standards that are actually set out decision whether to once again remove in regulatory and statutory law establish him. The majority instead misleadingly that when ICE reinstates an alien’s remov- cites to the requirement in 8 C.F.R. al order, the alien only possesses an inter- § 241.8(a)(3) that the immigration officer est in how the ICE officer resolves three ‘‘consider all relevant evidence,’’ when it questions: (1) whether the alien was sub- can easily ascertain that the regulation ject to a prior order of removal; (2) wheth- only requires the officer to consider all er this alien is the alien described in that evidence relevant to determining whether order; and (3) whether the alien illegally the alien unlawfully reentered the coun- re-entered the country. On May 4, 2008, try—which Villa unquestionably did. The when he waived his opportunity to be district court’s conclusion in sustaining his heard, Villa and the agency possessed all challenge to the criminal indictment was of the information that would be relevant irrelevant to that administrative determi- to those three determinations. His oppor- nation. tunity to be heard, at that time, could not To the extent the majority relies on an have been more meaningful. internal ICE memorandum—which does The majority agrees that Villa meets all not specifically address reinstatement— ‘‘[i]t is well settled that internal policy of the requirements for reinstatement of a manuals of federal agencies do not gen- removal order under current statutory and erally create due process rights in oth- regulatory law and that he waived his op- ers.’’ James v. U.S. Parole Comm’n, 159 portunity to contest whether those re- F.3d 1200, 1206 (9th Cir.1998). The quirements were met. So how could the memorandum itself explains that ‘‘there agency have abused its discretion by com- is no right to the favorable exercise of plying with federal law? Regardless of discretion by the agency,’’ and therefore the answer, we lack jurisdiction to review the memorandum cautions that it ‘‘may an abuse of discretion argument that is not be relied upon to create any right or merely recharacterized as a due process benefit, substantive or procedural.’’ argument, Torres–Aguilar v. INS, 246 Memorandum from John Morton, Di- F.3d 1267, 1271 (9th Cir.2001)—precisely rector, ICE, on Exercising Prosecutorial what the majority opinion does.4

tioner’s right to seek suspension of deporta- ious felons’’ and aliens like Villa–Anguiano tion, even if it was ‘‘wholly discretionary,’’ ‘‘with a record of illegal-re-entry.’’ Id. at 5. If and the alleged violation occurred during an these are the factors that influence the exer- appeal to the BIA, which was provided to the cise of discretion, how can my colleagues say petitioner by law. that discretion was abused here?

3. That memorandum also supports the immi- 4. There is no basis for the majority’s conclu- gration officer’s decision in Villa’s case. The sion that the immigration official proceeded memorandum lists several ‘‘negative factors’’ on bad information regarding Villa’s criminal that should ‘‘prompt particular care and con- prosecution. The addendum to the Record of sideration’’ when ICE officers are ‘‘exercising Deportable/Inadmissible Alien stated that Vil- prosecutorial discretion.’’ They include ‘‘ser- la ‘‘served 156 days confinement in federal VILLA–ANGUIANO v. HOLDER 887 Cite as 727 F.3d 873 (9th Cir. 2013)

To hold that Villa has a liberty interest again. It is highly unlikely that in any in any determination other than whether new removal proceedings, the agency he unlawfully re-entered the United States would grant discretionary relief to a con- in defiance of a removal order would ‘‘cre- victed killer who also ignores prior depor- ate a new and wholly unwarranted incen- tations by returning illegally. It is far tive for aliens who have previously been more likely that Villa would be removed removed to reenter the country illegally in once again, but this time with a new re- order to take advantage of this self-help moval order that would carry heavy crimi- remedy.’’ Morales–Izquierdo, 486 F.3d at nal consequences for his next re-entry. 498. Because there is no foundation in our Although Villa has no right to insist on due process jurisprudence to hold that an such a proceeding, the majority has over- alien possesses such a right, I cannot join stated the damage, if any, that the rein- a majority opinion that so casually accords statement of Villa’s removal order has this newly minted right to Villa. caused to his interests. Even if such a liberty interest existed, an alien bears the burden of proving the III alleged violation prejudiced his or her in- The majority concedes a point that terest. Cano–Merida v. INS, 311 F.3d should be absolutely clear: on remand, 960, 965 (9th Cir.2002). Because Villa ICE has absolutely no obligation to reach failed to make this due process argument a different result. Although by now the in his briefing—which the majority has government has surely recognized it can- chosen to excuse and make for him—he not punish Villa with anything more than made no showing of prejudice. But the deportation, it may, under 8 U.S.C. majority argues that prejudice exists be- § 1231(a)(5) and 8 C.F.R. § 241.8, rein- cause the agency ‘‘quite possibly would state his prior order of removal because have exercised its discretion not to pursue Villa meets each of the statutory and regu- reinstatement of Villa’s 1997 removal or- latory requirements for reinstatement. der.’’ Majority Op. at 882. The majority opinion amounts to no This assertion opens Pandora’s box. more than a thinly veiled suggestion, Let us not forget that as he stands today, cloaked in the mantle of due process, that Villa—who committed a serious felony of- ICE reconsider its decision to reinstate fense involving the taking of a life—cannot the prior removal order and instead open be criminally prosecuted for re-entering new removal proceedings from which the United States. He can enter the coun- years of litigation will ensue. Perhaps try illegally as he pleases, and under his that would be the most sensible course of current removal order, the only thing the action, so that next time Villa would have United States government can do is rein- no technical defense to a new felony con- state that order of removal and deport him viction under § 1326. But that is a deci-

custody for violation of 8 USC 1326(a)—De- lieved that Villa’s conviction was dismissed ported Alien Found in United States.’’ But because the court found Villa violated the the form also stated that ‘‘Subject’s case was statute. But that can’t be right. It is more dismissed for violation of 8 USC 1326(a)— reasonable to read the two sentences in con- Deported Alien Found in the United States.’’ junction and conclude that the officer noted (emphasis added). If the majority intends to Villa had been detained for 156 days awaiting take the first sentence at face value, then it trial on the charge that he violated § 1326, must believe as well that the ‘‘reasonably and that five months later the court dismissed competent’’ immigration officer somehow be- the charge. 888 727 FEDERAL REPORTER, 3d SERIES sion for the agency to make by balancing Central District of California, Otis D. its interest in the use of its limited re- Wright, II, J., to mail fraud and wire sources with its interest in securing a re- fraud. Defendant appealed. moval order that can better support future criminal charges. Courts have no right to Holdings: The Court of Appeals, Zipps, dictate that executive decision or to estab- District Judge, sitting by designation, held lish new criteria the Executive Branch that: must employ to make it. (1) prosecutor’s sentencing arguments did The majority opinion unnecessarily in- not breach plea agreement; trudes on the Executive Branch’s adminis- (2) court was not required to provide de- tration of immigration policy and not only tells the Department of Homeland Securi- fendant with notice before imposing a ty the criteria it must consider in the sentence outside of the advisory Sen- exercise of its prosecutorial discretion, but tencing Guidelines range; it also announces a novel holding that an (3) court did not plainly err in awarding alien who unlawfully re-enters the country restitution to two newly identified vic- has a due process right to influence the tims; and exercise of that prosecutorial discretion. Its rule adds requirements that have no (4) court properly imposed supervised re- basis in law. The Supreme Court has lease condition requiring defendant to clearly told us not to do this. Landon, 459 apply all monies received to his court- U.S. at 35, 103 S.Ct. 321. Rather than ordered financial obligations. remand on the basis of these nonexistent Affirmed. requirements, I would deny relief and leave Villa no worse off than where he stood before he willfully defied his removal O order and unlawfully re-entered the coun- 1. Criminal Law 1030(1) try. I respectfully dissent. Plain error is error, that is plain, and that affects substantial rights.

, 2. Criminal Law O1030(1) An appellate court may exercise its discretion to notice a forfeited error that UNITED STATES of America, seriously affects the fairness, integrity, or Plaintiff–Appellee, public reputation of judicial proceedings. v. O Ronald Dean MOSCHELLA, 3. Criminal Law 273.1(2) Defendant–Appellant. Prosecutor’s sentencing arguments No. 11–50377. were a fair response to defendant’s re- quest for a downward variance from the United States Court of Appeals, low-end of the advisory Guidelines range Ninth Circuit. of 33-months for mail fraud and wire Argued and Submitted Dec. 5, 2012. fraud, and thus prosecutor did not breach Filed Aug. 14, 2013. plea agreement in which government Background: Defendant pleaded guilty in agreed to recommend 33-month sentence, the United States District Court for the where under the plea agreement, defen-