FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS January 7, 2019 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-2007 OSCAR ALMANZA-VIGIL, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:15-CR-02605-RB-1) _________________________________ James N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Las Cruces, New Mexico, for Appellant. Marisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Appellee. _________________________________ Before PHILLIPS, KELLY, and MURPHY, Circuit Judges. _________________________________ PHILLIPS, Circuit Judge. _________________________________ The Immigration and Naturalization Act (INA) defines “aggravated felony” to include “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B), making removal from this country “a virtual certainty” for a noncitizen convicted of such a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes serious consequences on a noncitizen convicted of an aggravated felony: (1) he becomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain discretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary departure, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings, with no immigration judge present, id. § 1228(a)(1). That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded guilty in Colorado state court to “selling or distributing” methamphetamine in violation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he received a four-year prison sentence. In 2009, when the state paroled him, Immigration and Customs Enforcement (ICE) initiated expedited removal proceedings against him, declaring that he had committed an aggravated felony. With that designation, he had no right to an administrative hearing before an immigration judge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C. § 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put aggravated felons in expedited removal proceedings without a hearing before an immigration judge). Within the week, the Department of Homeland Security had issued a final administrative removal order, and ICE agents had sent Almanza-Vigil back across the border to Mexico. Six years later, border-patrol agents found Almanza-Vigil in the New Mexico desert. Then, charged with illegal reentry, Almanza-Vigil moved to dismiss the indictment by collaterally attacking his previous 2 removal order and arguing, for the first time, that he never committed an aggravated felony. Now reviewing the district court’s judgment convicting Almanza-Vigil for illegal reentry, we must return to 2009, when he left state prison, and ask how he could have avoided removal. To prevail here, Almanza-Vigil must show not only that his Colorado felony was not an aggravated felony, but that misclassifying it as one prejudiced him. To show the required prejudice, he ...
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