Take the Fifth

Designated for publication

• U.S. v. Ortiz-Rodriguez, 24-50213, c/w 24-50224, appeal from W.D. Tex.
  • Richman, J. (Richman, Willett, Douglas), Douglas, J., dissenting in part; criminal, due process, immigration
  • Affirming conviction of illegal reentry.
  • Ismael Adan Ortiz-Rodriguez was removed from the United States in 2017 following expedited removal proceedings initiated by DHS. In 2023, he was convicted of illegal reentry under 8 U.S.C. § 1326(a). Before trial, Ortiz-Rodriguez attempted to dismiss his indictment by collaterally attacking his 2017 deportation order under § 1326(d), arguing that his waiver of judicial review was neither knowing nor voluntary and that his due process rights were violated because his conviction for evading arrest was wrongly classified as an aggravated felony. The district court rejected these arguments, and Ortiz-Rodriguez was sentenced to 51 months in prison. His appeal also includes a challenge to the revocation of his supervised release from a prior § 1326 conviction, for which he received an additional 14 months’ imprisonment.
  • Ortiz-Rodriguez’s 2017 expedited removal stemmed from a Texas conviction for “Evading Arrest or Detention” with a vehicle, which DHS treated as an aggravated felony under then-existing Fifth Circuit precedent. DHS served him with a Notice of Intent (I-851), advising him of his rights, including the right to counsel and the ability to petition for judicial review in the Fifth Circuit within 14 days. Ortiz-Rodriguez signed the form, admitting the allegations, waiving his right to contest deportation, and requesting removal to Mexico. He did not pursue judicial review at the time. After multiple illegal reentries and removals, Ortiz-Rodriguez was found in Texas in May 2023, leading to his latest indictment under § 1326(a).
  • Under § 1326(d), a collateral challenge to a deportation order requires the defendant to show exhaustion of administrative remedies, a deprivation of judicial review, and fundamental unfairness. The Fifth Circuit held that Ortiz-Rodriguez failed to meet these standards. Specifically, he was informed of his right to judicial review but chose to waive it, and the court rejected his claim that the waiver was invalid because of incorrect legal advice regarding his aggravated felony classification. At the time of his removal, Fifth Circuit precedent (United States v. Sanchez-Ledezma) treated Texas evading arrest as a crime of violence, and later changes in the law do not retroactively make his waiver unknowing or involuntary.
  • The court also determined that Ortiz-Rodriguez was not denied procedural due process, as the expedited removal procedures under 8 U.S.C. § 1228(b) comply with constitutional requirements. His arguments that the Notice of Intent misled him or failed to provide a means to challenge the legal classification of his conviction were unpersuasive, especially since the form clearly outlined his rights and the opportunity for appellate review. The Fifth Circuit rejected the Ninth Circuit’s more lenient standard from Valdivia-Flores, which places the burden on the government to prove a valid waiver, affirming that in this circuit the defendant bears that burden.
  • Lastly, Ortiz-Rodriguez could not demonstrate prejudice under § 1326(d)(3). Even if DHS had misclassified his conviction, he was legally deportable under then-existing law, and there was no reasonable likelihood of a different outcome. The court emphasized that prejudice must be assessed based on the law at the time of removal, not subsequent changes. Ortiz-Rodriguez’s due process claim under Mendoza-Lopez also failed because § 1326(d) codifies that precedent, and he did not satisfy its prerequisites. Accordingly, the Fifth Circuit affirmed the district court’s denial of his motion to dismiss and upheld his convictions and sentences.
  • Judge Douglas dissented in part. Judge Douglas disagrees with the majority’s treatment of Ismael Adan Ortiz-Rodriguez’s waiver of judicial review during his expedited removal. While all three judges agree that Ortiz-Rodriguez cannot show the requisite prejudice under 8 U.S.C. § 1326(d)(3)—thus requiring affirmance of his conviction—the dissent criticizes the majority’s interpretation of § 1326(d)(2) and (d)(3)’s due process requirement. The dissent opines that the form Ortiz-Rodriguez signed, the Notice of Intent to Issue a Final Administrative Removal Order, misleadingly restricted his options for challenging removal to only factual grounds and lacked clarity about legal challenges—such as whether his conviction properly qualified as an aggravated felony. Judge Douglas contends that this ambiguity rendered Ortiz-Rodriguez’s waiver neither considered nor intelligent, depriving him of due process.
  • Further, the dissent challenges the majority’s conclusion that no procedural due process violation occurred. While agreeing that Ortiz-Rodriguez failed to demonstrate actual prejudice (because he would have been removable regardless), the dissent insists that a due process violation nonetheless arises when an individual is removed through expedited proceedings based on a conviction later deemed not to be an aggravated felony. Citing precedent from the Ninth and other circuits, the dissent opines that such defects invalidate the fairness of the removal process itself. Without an immigration judge or proper advisement of appeal rights, Ortiz-Rodriguez was denied procedural protections he otherwise would have received. Thus, the dissent concludes that Ortiz-Rodriguez satisfied § 1326(d)(3)’s due process requirement and his waiver of judicial review should be found invalid.

Unpublished decisions

• Regalado v. Hidalgo County, 24-40435, appeal from S.D. Tex.
  • per curiam (Stewart, Haynes, Higginson), prisoner suit
  • Dismissing as frivolous appeal from dismissal of sec. 1983 claims by former state pretrial detainee.

• U.S. v. Gibson, 24-40687, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hicks, 23-50030, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal, Second Amendment
  • Reversing district court’s dismissal of indictment under 18 U.S.C. § 922(n), which district court had based on holding that 18 U.S.C. § 922(n) violated the Second Amendment, and remanding for further proceedings.

• McMillian v. Aberdeen School District, 24-60419, appeal from N.D. Miss.
  • Graves, J. (Elrod, King, Graves), Title VII, employment discrimination
  • Reversing district court’s order denying plaintiff’s reinstatement to next available position for which he is qualified, after plaintiff was found to have been unlawfully terminated by school district under Title VII.

• Johnson v. Guerrero, 23-70002, appeal from S.D. Tex.
  • per curiam (Southwick, Graves, Higginson), habeas corpus
  • Affirming denial of State’s motion to dismiss petition for habeas corpus.