United States v. Eric Romero-Lobato

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2023
• Docket: 22-10091
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10091

Plaintiff-Appellee, D.C. No. 3:18-cr-00047-LRH-CLB-1 v.

ERIC ROMERO-LOBATO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted June 9, 2023 San Francisco, California

Before: MILLER and KOH, Circuit Judges, and LYNN,** District Judge. Dissent by Judge KOH.

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.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barbara M. G. Lynn, United States District Judge for the Northern District of Texas, sitting by designation. 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).

2 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

3 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

4 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

5 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

6 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

7 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.

8 United States v. Romero-Lobato, No. 22-10091 FILED KOH, Circuit Judge, dissenting. NOV 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I agree with the majority’s conclusion that the district court did not clearly

err in finding that the service of Romero-Lobato’s order to show cause satisfied

due process and that Romero-Lobato’s order to report for deportation affirmatively

misled him by telling him that “there is no administrative relief which may be

extended to you” and thus constituted a due process violation. I part ways with the

majority, however, on two issues, both related to Romero-Lobato’s notice of

hearing. First, I would remand for the district court to consider whether Romero-

Lobato’s due process rights were also violated by the service of his notice of

hearing. Second, I would remand for the district court to consider, for purposes of

prejudice, whether Romero-Lobato’s notice of hearing was sent consistent with

statutory requirements such that he has a plausible ground for relief from

deportation. Because the majority does neither, I respectfully dissent.

1. The majority concludes that Romero-Lobato stated, and the district

court found, that Romero-Lobato’s notice of hearing was mailed. But Romero-

Lobato’s statement and the district court’s finding say nothing about whether

notice was adequate for purposes of due process. See Farhoud v. INS, 122 F.3d

794, 796 (9th Cir. 1997) (“An alien does not have to actually receive notice of a

deportation hearing in order for the requirements of due process to be satisfied. Rather, due process is satisfied if service is conducted in a manner ‘reasonably

calculated’ to ensure that notice reaches the alien.”). The majority suggests that

Romero-Lobato’s statement is sufficient for the presumption of regularity to apply,

but none of the relevant requirements have been met. We have held that

“invocation of a presumption of notice requires the INS to prove that the notice

(1) was properly addressed; (2) had sufficient postage; and (3) was properly

deposited in the mails.” Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir.

2003). In this case, the notice of hearing was not properly addressed—it included

the incorrect zip code and an allegedly incorrect unit number. Nor does the record

reflect that the notice of hearing had sufficient postage or was properly deposited

in the mails. Unlike Romero-Lobato’s order to show cause, for which the record

contains copies of certified mail receipts signed by Romero-Lobato, the record

related to Romero-Lobato’s notice of hearing includes no certified mail receipts,

no mailing envelope, no signature, and no postage. In fact, at oral argument, the

government conceded that none of this, or any evidence of mailing, was in

Romero-Lobato’s immigration file (“A-file”).

Not only does Romero-Lobato’s statement and the district court’s finding

not satisfy any of the three requirements, but Romero-Lobato’s admission actively

disputes that the notice of hearing was properly addressed. Although the majority

suggests that the address was not invalid because the district court found that

2 Romero-Lobato signed for his order to show cause, this merely shows that

Romero-Lobato received actual notice of his order to show cause, not that the

address to which it was sent is valid such that the presumption of regularity

applies.

Under these circumstances, we should remand to the district court to make

findings about the adequacy of notice for due process purposes. See United States

v. Perez-Valencia, 727 F.3d 852, 855 (9th Cir. 2013) (remanding, where the record

was insufficient, for the district court to make factual findings).

For its part, the majority briefly acknowledges that Romero-Lobato’s order

to report for deportation contained an incorrect statement about the available

administrative relief. This issue, however, compels further comment. Romero-

Lobato’s due process rights were violated because he was affirmatively misled by

his order to report, which stated that “[a] review of your file indicates there is no

administrative relief which may be extended to you.” “We have long held there is

a violation of due process when the government affirmatively misleads an alien as

to the relief available to him.” United States v. Arias-Ordonez, 597 F.3d 972, 977

(9th Cir. 2010). Indeed, the statement in Romero-Lobato’s order to report is

virtually identical to the order to report that we held was a due process violation in

Arias-Ordonez. See id.

Just like in Arias-Ordonez, and as the government conceded at oral

3 argument, the order to report’s representation that “no administrative relief” was

available was incorrect because Romero-Lobato had a statutory right to move for

rescission of his in absentia removal order. See 8 U.S.C. § 1252b(c)(3) (1994)

(repealed 1996). Although Romero-Lobato’s order to show cause advised him of

the correct relief, this did not cure the error because the order to report was sent

later, and thus is the most recent representation about Romero-Lobato’s rights. In

addition, the order to report made a specific representation about Romero-Lobato’s

eligibility, whereas the order to show cause included a general description of an

alien’s rights.

The affirmatively misleading statement is all the more troubling because

Romero-Lobato was a minor at the time he received both documents. As we have

repeatedly recognized, “[t]he “immigration laws are complex, and our precedents

recognize that minors face a substantial risk of error in navigating the system.”

Cruz Pleitez v. Barr, 938 F.3d 1141, 1146 (9th Cir. 2019). In light of these facts, it

is unreasonable for the district court to expect Romero-Lobato to determine that

the order to report’s representation about his rights at the time of his removal was

in fact incorrect. Accordingly, Romero-Lobato’s due process rights were violated.

2. The majority also concludes that Romero-Lobato failed to show

prejudice because he failed to demonstrate that he did not receive adequate notice

of his hearing. In doing so, the majority confuses the standards for whether there is

4 a due process violation and whether there is prejudice. The standard for due

process asks whether notice was “reasonably calculated” to reach the alien. See

Farhoud, 122 F.3d at 796. The standard for prejudice asks whether the alien

received notice consistent with statutory requirements. In assessing prejudice, the

majority finds that notice was reasonable, but it does not address the statutory

requirements.

To establish prejudice, a defendant must show that he “had a ‘plausible’

ground for relief from deportation.” United States v. Cisneros-Rodriguez, 813 F.3d

748, 761 (9th Cir. 2015) (quoting United States v. Ubaldo-Figueroa, 364 F.3d

1042, 1050 (9th Cir. 2004)). Relevant here, Romero-Lobato can seek rescission of

his removal order in a motion to reopen “filed at any time if the alien demonstrates

that the alien did not receive notice in accordance with subsection (a)(2) of this

section.” 8 U.S.C. § 1252b(c)(3). Subsection (a)(2) requires that “written notice

shall be given in person to the alien (or, if personal service is not practicable,

written notice shall be given by certified mail to the alien or the alien’s counsel of

record, if any).” 8 U.S.C. § 1252b(a)(2) (emphasis added).

The only evidence to show that the notice of hearing was mailed was the

notice itself—the record contains no certified mail receipts, no mailing envelope,

no signature, and no postage. Again, the government at oral argument conceded

that Romero-Lobato’s A-file lacked any evidence that the notice of hearing was

5 mailed. This absence of evidence stands in stark contrast to Romero-Lobato’s

order to show cause, for which his A-file contained certified mail receipts. The

district court found that the notice of hearing was mailed based on the notice of

hearing itself. But the district court made no finding about whether the notice of

hearing was personally served or sent by certified mail. For prejudice, mere

mailing is insufficient, and the majority reaches a contrary conclusion by

neglecting the statutory requirements.

Moreover, Romero-Lobato never made any statements about whether his

notice of hearing was personally served or sent by certified mail. Thus, there is

nothing in the record indicating that the notice of hearing satisfied the statutory

requirements in § 1252b(a)(2). We should therefore remand to the district court to

consider whether Romero-Lobato received notice consistent with statutory

requirements. See United States v. Melendez-Castro, 671 F.3d 950, 955 (9th Cir.

2012) (per curiam) (remanding a defendant’s collateral attack to his removal order

to the district court because “it did not fully analyze the issue of prejudice”).