USA v. Ortiz-Rodriguez
Split Score
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Case Summary
Disposition
Affirmed
The defendant, Ismael Adan Ortiz-Rodriguez, sought to dismiss his illegal-re-entry indictment by collaterally attacking his 2017 expedited-removal order, arguing that he unknowingly waived judicial review and that the order was fundamentally unfair because his Texas evading-arrest conviction is no longer an aggravated felony. The Fifth Circuit held that he failed to meet the statutory prerequisites of 8 U.S.C. § 1326(d) because he could have appealed, his waiver was not shown to be involuntary, and he suffered no prejudice; the court therefore affirmed the conviction and the related revocation of supervised release.
Circuit Split Identified
Legal Issue
What showing is required under 8 U.S.C. § 1326(d) to collaterally attack an illegal-re-entry indictment when the underlying expedited-removal order relied on a conviction later determined not to be an aggravated felony—specifically, who bears the burden of proving an intelligent waiver of judicial review and whether the later change in law, by itself, satisfies § 1326(d)(2) & (3).
Circuit Positions
Defendant must prove all three § 1326(d) elements; burden of showing invalid waiver on defendant; later change in law does not itself satisfy § 1326(d)(2) or (3).
If underlying conviction is not an aggravated felony, due-process violation and prejudice are automatically established; government must prove waiver was valid.
Conflict Summary
Several circuits (Fifth, Third, Fourth, First, Seventh) hold that the non-citizen must satisfy all three statutory prerequisites of § 1326(d); the burden of proving an invalid waiver rests on the defendant, and a later change in substantive law does not, by itself, establish deprivation of judicial review or fundamental unfairness. The Ninth Circuit takes the opposite view, placing the burden on the government to prove a valid waiver and treating the fact that the predicate conviction is not actually an aggravated felony as automatically establishing both the due-process violation and prejudice required by § 1326(d)(3).