Summary
The Ninth Circuit affirmed the denial of Gonzalez-Reyes’s motion to dismiss an illegal-reentry charge under 8 U.S.C. § 1326. The court held that his California conviction for rape under California Penal Code § 261(a)(2) categorically matched the generic federal definition of rape and therefore qualified as an aggravated felony supporting his removal. Judge de Alba dissented, concluding that the California statute was not a categorical match and that the removal order was fundamentally unfair.
Topics
Practice areas
Questions Presented
- Whether Gonzalez-Reyes could collaterally attack the predicate removal order under 8 U.S.C. § 1326(d).
- Whether California Penal Code § 261(a)(2), including rape accomplished through nonphysical duress or coercion, categorically matches the generic federal definition of rape under the Immigration and Nationality Act.
- Whether the alleged invalidity of the removal order rendered the removal fundamentally unfair under 8 U.S.C. § 1326(d)(3).
Holdings
- A defendant challenging an illegal-reentry charge must satisfy all three requirements of 8 U.S.C. § 1326(d). Even assuming Gonzalez-Reyes satisfied exhaustion and deprivation of judicial review, his collateral attack failed because he could not establish fundamental unfairness.
- California Penal Code § 261(a)(2) is a categorical match with the generic federal definition of rape, including on the assumption that California's statute reaches rape accomplished through nonphysical deprivation of consent. A conviction under § 261(a)(2) therefore qualifies as an aggravated felony under the INA.
Key quotations
“Because Gonzalez-Reyes was convicted of an aggravated felony, he cannot show “fundamental unfairness” under Section 1326(d)(3), and his collateral attack on his order of removal fails.” (16)
“We AFFIRM the district court’s denial of Gonzalez-Reyes’ motion to dismiss charges for illegal reentry in violation of 8 U.S.C. § 1326.” (16)
Factual background
Gonzalez-Reyes was convicted in California of rape under California Penal Code § 261(a)(2), along with false imprisonment and corporal injury to a spouse or cohabitant. Federal immigration authorities treated the rape conviction as an aggravated felony, issued an expedited final removal order, and removed him to Mexico. He reentered the United States within days and was charged under 8 U.S.C. § 1326; he challenged the predicate removal order on the ground that his California rape conviction did not qualify as an aggravated felony.
Procedural history
The Southern District of California denied Gonzalez-Reyes's motion to dismiss the illegal-reentry charge, after which he entered a conditional guilty plea and appealed. The Ninth Circuit affirmed the denial of the motion to dismiss.