                           NOT FOR PUBLICATION                           FILED
                                                                         MAY 14 2020
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 19-10011

                 Plaintiff-Appellant,            D.C. No.
                                                 3:17-cr-00116-LRH-WGC-1
 v.

REFUGIO PALOMAR-SANTIAGO,AKA                     MEMORANDUM*
Refugio SantiagoPalomar,

                 Defendant-Appellee.


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

                            Submitted April 15, 2020**
                             San Francisco, California

Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,*** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       **
            The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
      Refugio Palomar-Santiago is a Mexican national who was granted

permanent resident status in the United States in 1990. In 1991, he was convicted

of a felony DUI in California. In 1998, he received an Notice to Appear from the

Immigration and Naturalization Service informing him that he was subject to

removal because the DUI offense was classified as a crime of violence under 18

U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. §

1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that

basis. Three years later, the Ninth Circuit determined that the crime Palomar-

Santiago was convicted of was not a crime of violence. United States v. Trinidad-

Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied

retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013).

      By 2017, Palomar-Santiago was again living in the United States, this time

without authorization. That year, a grand jury indicted him for illegal reentry after

deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the

indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must

dismiss a § 1326 indictment if the defendant proves (1) he exhausted any

administrative remedies that may have been available to seek relief against the

order; (2) he was deprived of the opportunity for judicial review at the deportation

hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. §

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1326(d). However, a defendant need not prove the first two elements if he can

show the crime underlying the original removal was improperly characterized as an

aggravated felony and need not show the third element if he can show the removal

should not have occurred. United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir.

2017); United States v. Aguilera-Rios, 769 F.3d at 630.

      The district court held Palomar-Santiago met his burden in showing his

crime was improperly characterized as an aggravated felony and that he was

wrongfully removed from the United States in 1998. On this basis, it dismissed the

indictment under § 1326(d). On appeal, the government concedes the district court

faithfully applied Ninth Circuit precedent in its order. Instead of disputing the

district court’s application of the law, the government argues that our settled

precedent is wrong and urges the panel to ignore it. Id. It points to evidence of

contravening congressional intent, the text of the statute itself, and contrary case

law from our sister circuits to support its argument. See, e.g., United States v. Soto-

Mateo, 799 F.3d 117, 120-21 (1st Cir. 2015); United States v. Villanueva-Diaz,

634 F.3d 844, 849-52 (5th Cir. 2011).

      Whatever merits the government’s argument may have, a three-judge panel

“can only decline to apply prior Circuit precedent ‘clearly irreconcilable’ with a

subsequent Supreme Court decision.” United States v. Shelby, 939 F.3d 975, 978

                                           3
(9th Cir. 2019) (internal citations omitted). The Ninth Circuit precedent as

established in Ochoa and Aguilera-Rios is not clearly irreconcilable with any

subsequent Supreme Court precedent, and as such this panel has no choice but to

apply it. The parties do not dispute, and this panel agrees, that the district court

faithfully applied Ninth Circuit precedent in dismissing the indictment under §

1326(d) after finding Palomar-Santiago was not convicted of an aggravated felony

in 1991, was not eligible for removal, and was wrongfully removed from the

United States. Consequently, we affirm the district court’s dismissal on this basis.

Because this is an adequate independent basis for dismissal, the panel declines to

reach Palomar-Santiago’s alternative arguments supporting dismissal.

      AFFIRMED.




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                                                                           FILED
No. 19-10011, United States v. Refugio Palomar-Santiago
                                                                           MAY 14 2020
CLIFTON, Circuit Judge, concurring:                                    MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      I concur in the disposition, which faithfully applies our precedent. I write

separately to express my view that this precedent should be revisited by an en banc

panel of this court.

      Three years ago, a panel of our court concluded that our precedent permitted

defendants charged with illegal reentry to collaterally challenge their prior removal

orders, even if they did not appeal them at the time, so long as the crime for which

they were originally deported was not in fact a removable offense. United States v.

Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017) (citing United States v. Camacho-

Lopez, 450 F.3d 928, 930 (9th Cir. 2006) and United States v. Pallares-Galan, 359

F.3d 1088, 1096, 1103–04 (9th Cir. 2004)).

      Nevertheless, in Ochoa, a concurrence by Judge Graber, joined by both of

the other two members of the Ochoa panel, Judges McKeown and Chief District

Judge Barbara M.G. Lynn (N.D. Tex.), described the precedents that bound that

panel and bind us, as inconsistent with the relevant statutory text, out of step with

other circuits and based on reasoning that was unfounded. “Our precedent has the

effect of nullifying the procedural requirements of [8 U.S.C.] § 1326(d) . . . and

creating in their place a new, substantive right to retroactive de novo review,

                                           5
thereby undermining the finality interests the statute was designed to protect.”

Ochoa, 861 F.3d at 1024 (Graber, J., concurring). We remain inconsistent with the

statute and on the wrong side of a circuit split, by my count currently 9-2. I repeat

the suggestion of the Ochoa panel that this question merits en banc

reconsideration.




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