United States of America v. BENJAMIN SANCHEZ-PORRAS

Denver, CO - Immigration lawyer represented defendant with a re-entry of a removed alien charge.

Sanchez-Porras is a Mexican citizen who became a U.S. permanent resident in

1985. Thirteen years later, in 1998, he was charged in Iowa state court with two drug

offenses: "Count I . . . knowingly possess[ing] a controlled substance, to wit:

Mari[j]uana, a Schedule I Controlled Substance with the intent to deliver”; and "Count II

. . . knowingly possess[ing] a controlled substance, to wit: Marijuana, a Schedule I

Controlled Substance with the intent to deliver, without affixing the appropriate tax

stamp, said substance weighing more than 42.5 grams.” Aplee. Supp. App. at 18. The

information indicated that Count Two arose under "453B.1(3)(b), 453B.12, [of the] 1997

Code of Iowa.” Id. at 19. Sanchez-Porras pled guilty to Count Two. The court

dismissed Count One and placed him on probation.

In 1999, the former Immigration and Naturalization Service (INS) served

Sanchez-Porras with a notice to appear (NTA), alleging that he was removable for having

an aggravated felony conviction, which it identified as "Possession of a Controlled

Substance with the Intent to Deliver, to wit: Marijuana, in violation of Code of Iowa,

Sections 453.1(3)(b) [sic] and 453B.12, 1997.” Id. at 27.

Sanchez-Porras appeared before an Immigration Judge (IJ) for a removal hearing.

Through attorney Joseph Rey, Sanchez-Porras admitted the NTA's allegations and

conceded removability. The IJ ordered Sanchez-Porras removed to Mexico, stating that

he had been convicted of an aggravated felony and was ineligible for any relief. Rey

waived Sanchez-Porras's right to appeal, and the INS immediately removed him to

Mexico. After a few months, however, he returned to the U.S.

Almost twenty years later, in February 2019, Sanchez-Porras was arrested in New

Mexico and charged with illegal re-entry, a violation of 8 U.S.C. § 1326(a). He moved to

dismiss the indictment by collaterally attacking his removal order under § 1326(d). That

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provision requires an alien to show, among other things, that the removal order's entry

"was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). Sanchez-Porras attacked the

removal order on the grounds that (1) it was based on the dismissed Iowa trafficking

count, rather than the tax-stamp count; and (2) Rey had provided ineffective assistance of

counsel by not verifying the existence of the alleged trafficking conviction. In support,

Sanchez-Porras submitted the affidavit of immigration lawyer Orlando Mondragon, who

opined that if Rey had identified the error, the IJ "would [have] terminated [the removal]

proceedings and . . . not order[ed] Mr. Sanchez removed.” Aplt. App. at 17.

The government opposed the motion to dismiss. It conceded that the NTA used

the wrong title of Sanchez-Porras's conviction. But it pointed out that the NTA properly

cited one of the tax-stamp statutes, § 453B.12, and it argued that Sanchez-Porras was

removable for that conviction, see 8 U.S.C. § 1227(a)(2)(B)(i) ("Any alien who at any

time after admission has been convicted of a violation of . . . any law or regulation of a

State . . . relating to a controlled substance (as defined in section 802 of title 21), other

than a single offense involving possession for one's own use of 30 grams or less of

marijuana, is deportable.”).

Sanchez-Porras replied that even if he was removable for the tax-stamp

conviction, he was eligible for cancellation of removal. He acknowledged, though, that

he had additional arrests for drunk driving, possessing a stolen vehicle, and domestic

violence, which would have been relevant to his likelihood of actually obtaining

cancellation.

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A magistrate judge held an evidentiary hearing, taking testimony from Mondragon

and Sanchez-Porras.1

Mondragon testified that Rey was ineffective for not discovering

the NTA's error. But even if Rey had noticed the error, Mondragon said, the government

could have simply amended the NTA or filed a new NTA to charge removability based

on the tax-stamp conviction. In particular, Mondragon opined that the government could

have charged that conviction as "an offense relating to a controlled substance.” Aplt.

App. at 53; see also id. at 52 ("So what the Government should have done would have

changed the charge or lodge[d] a different charge . . . .”). Mondragon added, however,

that Sanchez-Porras would have been a good candidate for cancellation of removal if he

had "no other run ins with the law.” Id. at 58. Although Mondragon knew that

Sanchez-Porras had other arrests, he did not know what type of offenses were involved.

Sanchez-Porras testified about his criminal history. In regard to his Iowa offenses,

he explained that he was just "hanging around with the people [he] shouldn't [have]

be[en] hanging around with.” Id. at 78. He claimed "that . . . other people had [the]

marijuana” and he was keeping them "company” while they drove to Iowa. Id. at 78, 89.

He initially claimed he was unaware they were transporting marijuana, but then admitted

he knew that fact, but not that they had brought "49 pounds of marijuana.” Id. at 88-89.

Regarding his domestic-violence arrest, he said it "was a misunderstanding on [an]

occasion with [his] wife but it was just a misunderstanding” because "[n]othing

happened.” Id. at 77. As for his stolen-vehicle arrest, he explained that "the car had been

1 Rey was deceased.

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loaned to [him]” and "everything worked out fine” because it "was not [his] fault.” Id.

As for his DWI arrest, he simply did not "know what happened with that case[.]” Id. at

75-76.

After the hearing, the magistrate judge recommended denying Sanchez-Porras's

motion to dismiss because the removal order's entry was not fundamentally unfair. The

magistrate judge explained that even if the NTA relied on Sanchez-Porras's dismissed

count and Rey provided ineffective assistance, Sanchez-Porras was nevertheless

removable on the tax-stamp conviction, which "would have been substituted as the

underlying charge in the NTA.” Id. at 119. In regard to Sanchez-Porras's likelihood of

obtaining cancellation of removal, the magistrate judge found "it was more likely that

discretionary relief would be denied and [his] removal ordered” based on his criminal

history. Id. at 132. The magistrate judge found that Sanchez-Porras's testimony

downplaying that history was not credible because he was "obvious[ly] . . . minimizing

the seriousness of the conduct for which he was charged and his involvement in the[ ]

[offenses].” Id. at 133-34.

Sanchez-Porras objected to the magistrate judge's recommendation on one ground,

that it was "erroneously premised on the unsupported assumption[ ] that [the government]

would have substituted as the underlying charge in the NTA the Iowa drug tax stamp

violation.” Id. at 140 (alterations and internal quotation marks omitted). The district

judge overruled Sanchez-Porras's objection, citing Mondragon's testimony at the hearing

as "sufficient evidence to support a finding that it is reasonably likely that the

Government would have substituted the dismissed charge[ ] or recharged [SanchezAppellate Case: 20-2016 Document: 010110460000 Date Filed: 01/05/2021 Page: 5

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Porras] with the drug tax stamp violation.” Id. at 148 (emphasis omitted). Consequently,

the district judge adopted the magistrate judge's recommendation and denied

Sanchez-Porras's motion to dismiss.

Sanchez-Porras conditionally pled guilty to illegal re-entry, reserving his right to

appeal. The district court sentenced him to time served, and this appeal followed.

DISCUSSION

We review de novo a denial of a motion to dismiss an illegal re-entry indictment.

See United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). To challenge

the validity of the underlying removal order, the defendant "must show (1) that he

exhausted all administrative remedies available to contest the previous removal order,

(2) that the previous removal proceedings deprived him of the opportunity to seek

judicial review, and (3) that the previous order's entry was fundamentally unfair.”

United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019) (citing 8 U.S.C.

§ 1326(d)).

We focus on only the third element – fundamental unfairness. "To demonstrate

fundamental unfairness, the noncitizen must establish a reasonable likelihood that, but for

the complained-of error, he would have avoided removal.” Id. at 1323.

Sanchez-Porras argues the district court erred in concluding that "the erroneous

charge of removability would have been amended” to his tax-stamp conviction because

"the government produced no competent evidence or expert opinion . . . that the charge

would have in fact been amended with reasonable certainty.” Aplt. Opening Br. at 10-11.

We are not persuaded for two reasons.

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First, the argument misplaces the burden of proof. Sanchez-Porras was required to

show that but for the incorrectly charged offense, he would have avoided removal. See

Almanza-Vigil, 912 F.3d at 1323. Thus, if the government could have substituted his

tax-stamp conviction and removed him on that basis, he was not prejudiced by the

incorrect charge. See Aguirre-Tello, 353 F.3d at 1204 (stating that "[t]he defendant has

the burden of showing that the underlying deportation hearing was fundamentally unfair,

and to do so he must show that he was prejudiced”).2

Second, Sanchez-Porras's own expert testified that if Rey had challenged the

NTA, "the government could have re-charged him” "under the section where [the drug

tax-stamp violation is] an offense relating to a controlled substance.” Aplt. App. at 53.

Nevertheless, Sanchez-Porras argues, he could have sought cancellation of removal if he

had been properly charged, and he maintains that the equities weighed in favor of him

2 Sanchez-Porras contends he was "presumptive[ly] prejudice[d]” by "his

improper classification as an aggravated felon.” Aplt. Opening Br. at 12. He relies

on United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). But that case is

distinguishable. Aguilera-Rios had been convicted in California for "unlawful

firearms possession,” which the NTA charged as a removable offense under both 8

U.S.C. § 1227(a)(2)(C) (certain firearm offenses) and 8 U.S.C. § 1227(a)(2)(A)(i)

(crimes involving moral turpitude). Aguilera-Rios, 769 F.3d at 629. The Ninth

Circuit reversed Aguilera-Rios's illegal re-entry conviction because there was no

legal basis for his removal under either immigration statute: his California

conviction did not categorically match "the federal firearms ground of removal,” id.

at 634, and the government had conceded his "conviction was not for a 'crime of

moral turpitude.'” Id. at 637. In short, Aguilera-Rios was removed for an offense

that did not legally qualify him for removal. But that is not what happened to

Sanchez-Porras, who was removable, just not for the reason stated by the NTA.

We note that Sanchez-Porras does not contest being removable for the

tax-stamp conviction. Consequently, we assume without deciding that he was

removable.

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getting that relief. But we do not address cancellation because he did not object to the

magistrate judge's cancellation determination. See United States v. One Parcel of Real

Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (stating that this court employs a firm waiver

rule requiring that "a party's objections to the magistrate judge's report and

recommendation must be . . . specific to preserve an issue for . . . appellate review”).

Sanchez-Porras also argues that "the fact that [he] may have been removable

pursuant to an uncharged basis is not relevant to the issue of whether this removal order

was fundamentally unfair.” Aplt. Opening Br. at 13. He invokes the rule of

administrative law that a "court may not uphold an agency action on grounds not relied

on by the agency.” Id. (internal quotation marks omitted). Granted, a "court is powerless

to affirm the administrative action by substituting what may be a more adequate or proper

basis,” because "do[ing] so would propel the court into the domain which Congress has

set aside exclusively for the administrative agency.” Carpio v. Holder, 592 F.3d 1091,

1103 (10th Cir. 2010) (brackets and internal quotation marks omitted). But the

procedural posture of this case is not direct review of administrative action. Rather, we

are engaged in direct review of a district court decision that involves a criminal

defendant's collateral attack on an agency's removal decision. As part of that process,

Congress has required that we consider the fundamental fairness of the defendant's

removal, see 8 U.S.C. § 1326(d)(3), which necessarily "hinges on [the defendant's]

chances of receiving relief from removal,” Almanza-Vigil, 912 F.3d at 1323 n.10

(acknowledging the bar against "upholding [a] removal order on grounds different from

those stated in that order”); see also United States v. Martinez-Hernandez, 932 F.3d

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1198, 1204 (9th Cir.) (stating that despite the bar against "affirm[ing] the [Board of

Immigration Appeals] on a ground never charged,” "the central issue for decision [under

§ 1326(d)(3)] is whether a defendant was removed when he should not have been”

(internal quotation marks omitted)), cert. denied, 140 S. Ct. 392 (2019). Thus,

Sanchez-Porras's removability for the tax-stamp conviction is relevant to the fundamental

fairness inquiry. And, as the government underscores, "the NTA correctly cited one of

the Iowa [tax-stamp] statutes under which Sanchez-Porras was convicted,” despite

erroneously "describing the offense and listing it as an aggravated felony.” Aplee. Br. at

24.

Because Sanchez-Porras has not shown that the entry of his removal order was

fundamentally unfair, the district court correctly denied his motion to dismiss

We affirm the district court’s judgment.