UNITED STATES v. MEJIA BRIZUELA (2026)

ORDER GRANTING MOTION TO DISMISS THE INFORMATION UNDER 8 U.S.C. § 1326(d)

Defendant Santiago Antonio Mejia-Brizuela (“Defendant”) filed a Motion to Dismiss the Information under 8 U.S.C. § 1326(d) (“Motion”). (Doc. 20.) Defendant is charged in the Information with violation of § 1326(a) and (b). (Doc. 13.) Defendant argues that the § 1326 charge must be dismissed under § 1326(d) because the theft conviction that served as the basis for his removal did not qualify as an aggravated felony and there was no way to challenge the legal determination that his offense was an aggravated felony in his summary administrative removal process. (Id. at 4–15.¹ ) The Government filed a Response in Opposition (“Opposition”). (Doc. 32.) The Government argues Defendant's Texas theft conviction is an aggravated felony, a theft offense under 8 U.S.C. § 1101(a)(43)(G) and additionally asserts the Motion should not be granted because Defendant has not shown he exhausted administrative remedies challenging his removal or shown he was deprived of the opportunity for judicial review of his removal. (Id. at 7–15.) Defendant filed a Reply. (Doc. 34.)

For the reasons set forth below, the Court GRANTS the Motion.

I. BACKGROUND

Defendant “came to the United States from Honduras in about January 1992, when [he] was 9 years old.” (Decl. of Santiago Antonio Mejia-Brizuela [Doc. 20-1 at 3–4] (“Mejia-Brizuela Decl.”) ¶ 1.) He grew up in Houston, Texas and married his partner, a United States citizen, in 2006. (Id. ¶¶ 2–4.) They have two children together. (Id. ¶ 5.)

“On March 20, 2014, [Defendant] was convicted of Texas ‘theft $1500–20K’ and received a sentence of two years imprisonment.” (Doc. 20 at 3 (citing Ex. D (Judgment of Conviction)).) Although the documents submitted by the parties do not identify a Texas code section, the parties appear to agree Defendant was convicted of violating Texas Penal Code § 31.03, Texas' theft statute. (Id. at 3 n.1; Doc. 32 at 11.)

On September 12, 2014, Defendant was served with a Notice of Intent to issue a Final Administrative Removal Order (“Notice of Intent”), Form I-851, pursuant to 8 U.S.C. § 1228(b) “without a hearing before an immigration judge.” (Doc. 20-1 (Notice of Intent) at 16–17.) The Notice of Intent charged that he was deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) “because [he had] been convicted of an aggravated felony as defined in ․ 8 U.S.C. 1101(a)(43)(G).” (Id.) The form identified the conviction offense as “Theft $1500–20K” in violation of Texas Penal Code for which he received a two-year sentence. (Id. at 16.) The Notice of Intent states on the top of the second page that it was served in person on September 12, 2014 and a box is checked that states “I explained and/or served this Notice of Intent to the alien in the SPANISH/ENGLISH language.” (Doc. 20-1 at 17.² ) Just below this sentence, it states, “I acknowledge that I Have Received this Notice of Intent to Issue a Final Administrative Removal Order” but below this line, instead of a “Signature of Respondent” there is a stamp, “REFUSED TO SIGN” and it is dated September 12, 2024. (Id.) This is followed by a check-box for “The alien refused to acknowledge receipt of this document” and a signature line for an officer, but the box is not checked and there is no signature. (Id.)

A section titled “Your Rights and Responsibilities” follows and identifies a right to counsel and then states that “[y]ou must respond to the above charges in writing to the Department address provided on the other side of this form within 10 calendar days of service of this notice (or 13 calendar days if service is by mail).” (Id.) The Notice of Intent goes on to state “In your response you may: request, for good cause, an extension of time; rebut the charges stated above (with supporting evidence); request an opportunity to review the government's evidence; admit deportability; designate a country to which you choose to be removed in the event that a final order of removal is issued ․; and/or,” if fearing persecution or torture in a specific country, request withholding of removal or withholding/deferral of removal. (Id.) The last paragraph in the Rights and Responsibilities section states that:

You have a right to remain in the United States for 14 calendar days so that you may file a petition for review of this order to the appropriate U.S. Circuit Court of Appeals as provided for in ․ 8 U.S.C. [§] 1252. You may waive your right to remain in the United States for this 14-day period. If you do not file a petition for review within this 14-day period, you will still be allowed to file a petition from outside the United States so long as that petition is filed with the appropriate U.S. Circuit Court of Appeals within 30 calendar days of the date of your final order of removal.

(Doc. 20-1 at 16.)

Two additional sections follow and are titled, respectively “I Wish to Contest and/or to Request Withholding of Removal” and “I Do Not Wish to Contest and/or Request Withholding of Removal.” (Id. at 17.) The first section contains no marks or signatures on any of the check boxes, including two primary items on contesting deportability and requesting withholding or deferral of removal and four sub-check boxes listing the specific bases for contesting deportability available as well as two specific bases for requesting withholding or deferral of removal. (Id.)

The second section is titled “I Do Not Wish to Contest and/or Request Withholding of Removal” and is marked. (Id.) Both of the two subsections' check boxes are marked and collectively state that the allegations and charge in the Notice of Intent are admitted, that deportability and lack of eligibility for relief from removal is admitted, and that the right to remain in the United States to apply for judicial review is waived. (Id.) However, this section's signature portion is not signed by Defendant and instead again has the “REFUSED TO SIGN” stamp above the signature of a witness, presumably the officer serving the Notice of Intent, but no declarations have been submitted by either of the officers that appear to have signed the Notice of Intent. (Id.)

In his Declaration, Defendant asserts that while he was still “in custody in Texas, an immigration officer came to see” him and “told [him] that [he] was going to be deported and told [him] to sign the paperwork for [his] deportation.” (Mejia-Brizuela Decl. ¶ 6.) He explains that the “officer did not read or explain the documents” or give him an opportunity to read the documents. (Id. ¶¶ 7–8.) He asserts that the officer did not tell him that he had a right to pro bono counsel, could contest his deportability, or “had a right to appeal any of his determinations, including that [he] had committed an aggravated felony.” (Id. ¶¶ 10–11.) Defendant “told the officer that [he] did not want to get deported, and that [he] would not sign any documents.” (Id. ¶ 9.) And finally, he attests that if he “had known that [he] had a right to appeal the officer's determination that [he] had committed an aggravated felony, he would have appealed.” (Id. ¶ 13.)

A Final Administrative Removal Order (“FARO”) followed on September 25, 2014 and found, “[b]ased on the allegations set forth in the Notice of Intent to Issue a Final Administrative Removal Order and evidence contained in the administrative record,” that Defendant was not a citizen or lawfully admitted, had “a final conviction for an aggravated felony as defined in ․ 8 U.S.C. § 1101(a)(43)(G),” and was “deportable as an alien convicted of an aggravated felony pursuant to ․ 8 U.S.C. [§] 1227(a)(2)(A)(iii).” (Doc. 20-1 at 19.) The officer ordered Defendant “be removed from the United States to Honduras.” (Doc. 20-1 at 19.) Based on the record before the Court, Defendant did not challenge this removal.

On December 31, 2025, Defendant was found hiding in brush in the Colorado River, and when questioned by a border patrol agent, Defendant indicated he was born in Honduras, had previously been deported, and attempted to enter the United States to see his children. (Doc. 1 (Complaint), Doc. 13 (Information).)

II. LEGAL STANDARD

A. Administrative Removal Under 8 U.S.C. § 1228(b)

As noted above, the Notice of Intent was served on Defendant pursuant to 8 U.S.C. § 1228(b) and charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon. (Doc. 20-1 at 16.) “Under [this] administrative removal system, [the Department of Homeland Security (“DHS”)] may order certain aliens removed without a hearing before an immigration judge (IJ).” United States v. Avalos, 162 F.4th 948, 952 (9th Cir. 2025) (citing 8 U.S.C. § 1228(b)(1), (2) and Gomez-Velazco v. Sessions, 879 F.3d 989, 991 (9th Cir. 2018)). “To invoke § 1228(b), DHS must establish that the individual to be removed: (1) is not a citizen of the United States; (2) has not been lawfully admitted for permanent residence; and (3) has been convicted of an aggravated felony.” Id. (citing 8 U.S.C. § 1228(b)(1), (2) and 8 C.F.R. § 238.1(b)(1)). “Administrative removal proceedings [under § 1228(b)] ‘are summary in nature because if DHS establishes those three predicates, the individual is conclusively presumed removable and categorically ineligible for most forms of discretionary relief from removal.’ ” Avalos, 162 F.4th at 952 (quoting Gomez-Velazco, 879 F.3d at 991).

B. 8 U.S.C. § 1326

“Once an alien has been validly removed from the United States, it is a crime to reenter the country without authorization.” United States v. Gonzalez-Reyes, 172 F.4th 1088, 1091 (9th Cir. 2026) (citing 8 U.S.C. § 1326(a)); see also United States v. Portillo-Gonzalez, 80 F.4th 910, 916 (9th Cir. 2023) (Section 1326 “criminalizes unlawful reentry by a previously removed alien”).³ “In a criminal action brought under § 1326, an alien has a right under the Due Process Clause of the Fifth Amendment to collaterally challenge the removal order underlying the charge of illegal reentry.” United States v. Gambino-Ruiz, 91 F.4th 981, 985 (9th Cir. 2024) (citing United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047–48 (9th Cir. 2004)). Section 1326 did not originally allow a defendant to challenge the underlying removal, but after this was found to violate due process, Congress enacted § 1326(d). United States v. Palomar-Santiago, 593 U.S. 321, 324, 141 S.Ct. 1615, 209 L.Ed.2d 703 (2021) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)).

Section 1326(d) “first establishes the general rule that ‘[i]n a criminal proceeding under this section, an alien may not challenge the validity of the deportation order’ that is an element of the offenses defined in § 1326(a) or (b).” Portillo-Gonzalez, 80 F.4th at 916 (quoting 8 U.S.C. § 1326(d)) (emphasis in original). “The statute then provides a limited exception to that rule under which an alien may establish the invalidity of the predicate removal order by showing that: (1) ‘the alien exhausted any administrative remedies that may have been available’ to contest the order; (2) the deportation proceedings that led to the order ‘improperly deprived the alien of the opportunity for judicial review;’ and (3) the removal order was ‘fundamentally unfair.’ ” Id. (quoting § 1326(d)); see also Palomar-Santiago, 593 U.S. at 324–25, 141 S.Ct. 1615 (Subsection 1326(d) “establishes three prerequisites that defendants facing unlawful-reentry charges must satisfy before they can challenge their original removal orders.”).⁴ “An underlying removal order is ‘fundamentally unfair’ if: (1) a defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” Ubaldo-Figueroa, 364 F.3d at 1048 (citations omitted). “[E]ach of the statutory requirements of § 1326(d) is mandatory.” Palomar-Santiago, 593 U.S. at 329, 141 S.Ct. 1615.

III. DISCUSSION

Before addressing each of the requirements of § 1326(d)(1)–(3), the Court briefly addresses the Government's argument that United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), is no longer good law following the Supreme Court's decision in United States v. Palomar-Santiago and the Ninth Circuit's subsequent decisions that apply Palomar-Santiago: Portillo-Gonzalez and Nunez. (Doc. 32 at 5–9.) The argument is consequential because Defendant asserts that “Valdivia-Flores ultimately controls the outcome of this case” because like Defendant's Notice of Intent, the Notice of Intent in Valdivia-Flores “ ‘suggested ․ that removability could only be contested on factual grounds,’ ” with no “available administrative avenue to contest the classification of Texas theft as an aggravated felony.” (Doc. 34 at 7 (quoting Valdivia-Flores, 876 F.3d at 1206).)

Then, the Court considers whether all the requirements of § 1326(d) have been met as required by Palomar-Santiago.

1. Valdivia-Flores Has Not Been Abrogated

In its Opposition, the Government argues that the Supreme Court's 2021 decision in Palomar-Santiago and subsequent Ninth Circuit decisions—Portillo-Gonzalez, 80 F.4th 910 and United States v. Nunez, 140 F.4th 1157 (9th Cir. 2025)—have abrogated some of the cases Defendant relies on, particularly for those relied on to meet § 1326(d)(1) and (2). (Doc. 32 at 5–11.) The Government specifically asserts that Valdivia-Flores and United States v. Mangas, No. 19-50319, 2022 WL 898594 (9th Cir. Mar. 28, 2022) “are no longer good law.” (Id. at 8.) These cases are significant for Defendant because the removal process under § 1228(b) in both cases was very similar to Defendant's summary administrative removal.

The Court agrees that Palomar-Santiago overruled precedent in the Ninth Circuit regarding § 1326(d). Palomar-Santiago, 593 U.S. at 326, 141 S.Ct. 1615 (overruling “Ninth Circuit precedent providing that defendants are ‘excused from proving the first two requirements’ of § 1326(d) if they were ‘not convicted of an offense that made them removable.”) (quoting United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017)). Palomar-Santiago made clear that all three requirements must be satisfied and explained that “[t]he immigration judge's error on the merits does not excuse the noncitizen's failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error.” Id. at 327–28, 141 S.Ct. 1615.

In Portillo-Gonzalez, the Ninth Circuit found § 1326(d)(1) and (2) were not satisfied by an IJ's erroneous statements regarding the defendant's eligibility for voluntary departure. 80 F.4th at 917–918 (finding “this line of case authority did not survive the Supreme Court's decision in Palomar-Santiago”). The defendant failed to satisfy the administrative exhaustion requirement, notwithstanding any potential incorrect statements as to his eligibility for immigration relief, when the record confirmed “that the IJ correctly informed [him] of his right to appeal and that in response to the IJ asking him whether he would like to appeal the order of removal, [he] answered no, and [t]here was no misrepresentation by the IJ as to the existence of a right to appeal or as to the rules or procedural steps governing such appeals.” Id. at 920 (“this case does not involve misleading statements as to the procedural steps for pursuing administrative remedies.”) (emphasis in original).

In United States v. Valdivias-Soto, the court applied Palomar-Santiago and Portillo-Gonalez and found that to satisfy 1326(d)(1)'s exhaustion requirement, “defendants need only have exhausted administrative remedies that were ‘available’ to them.” 112 F.4th 713, 731 (9th Cir. 2024) (citing § 1326(d)(1) and Ross v. Blake, 578 U.S. 632, 642, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016)). The court goes on to explain that “[t]o identify when a remedy is ‘incapable of use’ and thus ‘unavailable,’ it is necessary to look to ‘the real-world workings of’ the immigration court system.” Id. (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). “But at a minimum,” a remedy is unavailable “when immigration officials ‘thwart [defendants] from taking advantage of a remedy through ․ misrepresentation.’ ” Id. (quoting Ross, 578 U.S. at 644, 136 S.Ct. 1850). The court found the defendant satisfied § 1326(d)(1) because the errors in his hearing before an IJ regarding “the procedural rules of his removal proceeding ․ ‘thwarted’ him from appealing.” Id. at 732–33, 136 S.Ct. 1850 (citing Ross, 578 U.S. at 644, 136 S.Ct. 1850). In United States v. Nunez, the court described Valdivias-Soto as standing for the “limited proposition that ‘administrative remedies are not available for the purposes of § 1326(d)(1) only ‘if the IJ misled the defendant as to the existence or rules of the ․ process for obtaining them.’ ” Nunez, 140 F.4th at 1164 (quoting Valdivias-Soto, 112 F.4th at 732).

The Nunez court also rejected the suggestion that § 1326(d)(1) is met anytime that an IJ accepts an invalid waiver of appeal. Id. at 1164–65 (explaining that “the defendant in Valdivias-Soto did not overcome § 1326(d)(1)'s exhaustion bar solely because his waiver of appeal was not considered and intelligent;” rather “[h]e overcame it because the IJ made an affirmative misrepresentation which, under Ross, excused his failure to exhaust.”); see also Valdivias-Soto, 112 F.4th at 728 (defendant was not prevented from entering considered and intelligent waiver of his right to appeal by IJ's statement that he “was ineligible for any relief or remedy”) The Nunez court also reiterated that when an IJ informs a defendant “ ‘of his right to appeal’ and ‘there [is] no misrepresentation as to the rules or procedural steps governing such appeals,’ ” “an invalid waiver alone would not excuse ․ a failure to exhaust administrative remedies.” Nunez, 140 F.4th at 1165 (quoting Valdivias-Soto, 112 F.4th at 731). The court additionally reiterated that exhaustion may only be excused in the three circumstances described in Ross: (1) effectively a dead end; (2) procedures so opaque they are incapable of use; or (3) administrators “thwart[ing] ․ the process through machination, misrepresentation, or intimidation.” Id.

There are numerous Ninth Circuit cases that were found to be overruled or abrogated in some part based on Palomar-Santiago, Portillo-Gonzalez, Valdivias-Soto, and Nunez. However, Valdivia-Flores, the case most closely aligned with this one, is not among them. And the Ninth Circuit cases that have relied on Valdivia-Flores since Palomar-Santiago was issued have not suggested it is no longer good law. The Ninth Circuit's Mangas decision, issued after Palomar-Santiago, relied on Valdivia-Flores to find § 1326(d)(1) and (2) met. Mangas, 2022 WL 898594, at *1 (noting the government's concession that defendant's “waiver form, signed by [defendant], was identical to the form at issue in Valdivia-Flores” and finding this “demonstrated that he exhausted his administrative remedies and was deprived of judicial review”). Additionally, in United States v. Orozco-Orozco, while the court noted Valdivia-Flores was decided prior to Palomar-Santiago, the decision does not say it was overruled but instead notes a finding in Valdivia-Flores regarding waiver of judicial review and then concludes that the panel lacks the factual findings needed to make a determination of waiver of judicial review. 94 F.4th 1118, 1129 (9th Cir. 2024). This suggests that rather than Valdivia-Flores being abrogated, it should be applied. Finally, in United States v. Gonzalez-Reyes, the dissent directly disputes the Government's assertion that Valdivia-Flores did not control. 172 F.4th at 1098 (de Alba, J. dissenting).⁵ Because no Ninth Circuit decision to date has found Valdivia-Flores overruled and Ninth Circuit decisions continue to rely on it and suggest is still applies, the Court is not persuaded it is no longer good law. However, because Palomar-Santigo was clear that each requirement must be met, in addition to explaining how Valdivia-Flores controls here, the Court individually addresses each requirement.

B. § 1326(d)(1) and (2)

Defendant argues that Defendant's Notice of Intent provided “no legal avenue through which to challenge the finding that his conviction was an aggravated felony.” (Doc. 20 at 12 (citing Mangas, 2022 WL 898594, at *1 and Valdivia-Flores, 876 F.3d at 1206); see also Doc. 34 at 2–8 (arguing the regulations applicable to Defendant's administrative removal did not allow him to challenge the legal conclusion that his offense qualified as an aggravated felony and Defendant's Notice of Intent provided no way to challenge the determination his theft conviction was an aggravated felony).) Relying on the Notice of Intent, the Government argues that Defendant was informed he could rebut the charges in the Notice of Intent, contest his deportability, and request withholding of removal. (Doc. 32 at 9–10.) The Government additionally argues that Defendant was required to show, and has failed to show, he was provided incorrect information by the officer that served the Notice of Intent. (Id. at 10–11.)

As briefly noted above, Defendant argues that Valdivia-Flores controls the outcome here because, the defendant there received an identical Notice of Intent and the court found § 1326(d)(1) and (2) were both met. 876 F.3d at 1205–06. Like Defendant's Notice of Intent here, while it “described the window in which [the defendant] could respond to the charges against him or file a petition for judicial review, it did not explicitly inform him that he could refute, through either an administrative or judicial procedure, the legal conclusion underlying his removability.” Id.⁶ “In fact, the Notice of Intent's three check boxes suggested just the opposite—that removability could only be contested on factual grounds.” Id. Like Defendant's Notice of Intent here, “[t]he list of options available to ‘check off’ did not include an option to contest the classification of the conviction as an aggravated felony, and the only check box relevant to the conviction itself only allowed [Defendant] to contest that he ‘was not convicted of the criminal offense described.’ ” Id. at 1206; (Doc. 20-1 at 17 (“I was not convicted of the criminal offense described in allegation number 6 above.”).) The Valdivia-Flores court also noted the significance of the defendant, like Defendant here, not “hav[ing] the benefit of appearing before an [immigration judge] who, we presume, would have adequately conveyed both [his] appeal options and the finality associated with waiving appeal,” as well as the absence of any evidence that the form was ever explained by an immigration officer. 876 F.3d at 1206 (“The government provides no evidence that an immigration officer ever met with Valdivia-Flores to explain the form or the issues it raised.”). Like the Government here, in Valdivia-Flores, “the government [also] merely relie[d] on the sufficiency of the form's text to communicate [the defendant's] options.” Id.

Based on these almost identical circumstances,⁷ the court found § 1326(d)(1) and (2) were both met because the combination of the summary nature of the administrative proceedings and the lack of any ability to appeal the legal determination that his conviction was an aggravated felony was a due process violation denying him a right to appeal and making his purported waiver invalid. Id. at 1205–06; see also Mangas, 2022 WL 898594, at *1 (finding § 1326(d)(1) and (2) met because the “waiver form signed by [the defendant] was identical to the form at issue in Valdivia-Flores, and that, accordingly, [the defendant] has demonstrated that he exhausted his administrative remedies and was deprived of the opportunity for judicial review.”) The Court finds the same here. Based on Valdivia-Flores, the denial of any way to appeal the legal determination that his conviction was an aggravated felony in the summary administrative removal proceeding meant that Defendant had no available administrative remedy under § 1326(d)(1) to raise that issue and the proceedings denied him judicial review under § 1326(d)(2).

However, to the extent Valdivia-Flores might be interpreted as excusing these requirements rather than finding them satisfied based on the defendant's summary removal proceedings and the deficiencies of the Notice of Intent as to appeal procedures, the Court briefly separately addresses each requirement.

1. § 1326(d)(1) – Administrative Exhaustion

Under § 1326(d)(1), a defendant must show that he has “exhausted any administrative remedies that may have been available to contest the order.” Portillo-Gonzalez, 80 F.4th at 916. Here, there was no procedure available “to obtain ‘some relief for the action complained of’ ” because the Notice of Intent did not provide any way to contest the legal conclusion that the crime he had committed was an aggravated felony. Id. at 919 (quoting Ross, 578 U.S. at 635, 136 S.Ct. 1850). Defendant received only the Notice of Intent and even that, he was not given the opportunity to read or given any explanation how to challenge or appeal. (Mejia-Brizuela Decl. ¶¶ 8, 11–12.) Even assuming he had been permitted an opportunity to review the Notice of Intent, it only includes explanation of a right to “remain in the United States for 14 calendar days” to “petition for review of this order to the appropriate U.S. Court of Appeals” and provides no way to challenge the legal determination that his conviction was for an aggravated felony. (Doc. 20-1 at 16.) Of the three boxes available to check to challenge deportability, the closest box he could have checked from the limited options available would have challenged being convicted of the theft offense. (Doc. 20-1 at 17.) That would be a completely different and factual issue and fails to provide any administrative path to challenge the legal conclusion that his theft conviction was an aggravated felony. See United States v. Sam-Pena, 602 F. Supp. 3d 1204, 1208–09 (D. Ariz. 2022) (noting Palomar-Santiago had been issued); see also United States v. Morales-Rodriguez, 744 F. Supp. 3d 1036, 1047–48 (S.D. Cal. 2024) (finding the same Notice of Intent form did not provide a process to “dispute the conclusion that his state law conviction constituted an aggravated felony”).

The Court also notes the significance of the summary administrative removal proceedings. While summary administrative removal proceedings under § 1228(b) are not as expedited as “expedited removal proceedings” under § 1225(b) in which “the administrative exhaustion and judicial review prongs are satisfied ․ because neither are available to an alien so removed,” Gambino-Ruiz, 91 F.4th at 985, the lack of an IJ hearing for administrative removal under § 1228(b) impacts the unavailability of administrative remedies.⁸ This case is not like Portillo-Gonzalez and Nunez, where an IJ explained each defendant's “right to appeal and, unlike Valdivias-Soto, made no affirmative misrepresentations about that right.” Nunez, 140 F.4th at 1165 (discussing Portillo-Gonzalez, 80 F.4th at 920 and distinguishing Valdivias-Soto, 112 F.4th at 731). Here, as summarized above, there was no IJ to explain what, if any appeal rights Defendant had or if they allowed him to challenge the determination that his offense was an aggravated felony. The immigration officer serving it did not explain he could contest or appeal the determinations on the form which left him with only a form that did not give him an option to appeal the legal determination his conviction was for an aggravated felony. Under these circumstances, Defendant has satisfied § 1326(d)(1).

2. § 1326(d)(2) – Deprived of Judicial Review

The second requirement of § 1326(d) requires “the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review.” § 1326(d)(2). “Noncitizens who are unable to appeal their removal order because they entered a waiver of their right to appeal that was not considered and intelligent have been improperly deprived of judicial review.” Valdivias-Soto, 112 F.4th at 733. “ ‘The government bears the burden of proving valid waiver in a collateral attack of the underlying removal proceedings,’ and must ‘prove by clear and convincing evidence that the alien received adequate advisement of the consequences of his waiver of appeal.’ ” Nunez, 140 F.4th at 1165 (quoting United States v. De La Mora-Cobian, 18 F.4th 1141, 1148 (9th Cir. 2021)). As summarized above, Defendant did not sign the Notice of Intent and his unchallenged Declaration indicates the immigration officer did not give him an opportunity to read the documents or explain that he had a right to appeal any determinations.⁹ Additionally, as discussed above, because the Notice of Intent did not allow him to challenge the legal determination that his theft conviction made him an aggravated felon, any waiver was not considered and intelligent. Finally, the Court notes that even if Valdivia-Flores were abrogated in some respect because it did not explicitly and separately analyze each of the three requirements of § 1326(d), the holding as to waiver is distinctly made as to judicial review and it rests on almost identical circumstances presented by Defendant. Valdivia-Flores, 876 F.3d at 1206 (“Valdivia-Flores's waiver of the right to seek judicial review was not considered and intelligent.”); see also United States v. Robles-Velasco, No. 5:22-CR-00263-DSF, 2024 WL 3259568, at *2 (C.D. Cal. July 1, 2024) (finding that for defendant “to make a valid waiver, ‘she had to know that she could challenge her classification as an aggravated felon.’ ”) (quoting United States v. Cazares-Rodriguez, No. 3:17-cr-00327-GPC-1, 2017 WL 2212031, at *5 (S.D. Cal. May 19, 2017)).

Defendant has shown he was deprived of the opportunity for judicial review as required by § 1326(d)(2).

C. Fundamental Unfairness

“An underlying removal order is ‘fundamentally unfair’ if: (1) a defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” Ubaldo-Figueroa, 364 F.3d at 1048 (citations omitted). An “administrative removal order [is] defective if the crime of conviction it relied on to find [the defendant] removable ․ does not qualify as an aggravated felony.” Orozco-Orozco, 94 F.4th at 1122–23 (9th Cir. 2024). Defendant asserts his 2014 removal was fundamentally unfair under § 1326(d)(3) because his Texas theft offense was not an aggravated felony. (Doc. 20 at 4–11; Doc. 34 at 8–14.)

1. Aggravated Felony

As noted above, the Notice of Intent charged, and the FARO found, that Defendant was removable because he had been convicted of an aggravated felony, i.e. Texas theft. “Under the Immigration and Nationality Act (INA), ‘[a]ny alien who is convicted of an aggravated felony at any time [after] admission is deportable.’ ” Gonzalez-Reyes, 172 F.4th at 1091 (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)). “The INA defines an ‘aggravated felony’ to include ‘a theft offense (including receipt of stolen property) ․ for which the term of imprisonment [is] at least one year.’ ” Chmukh v. Garland, 124 F.4th 670, 675 (9th Cir. 2024) (quoting 8 U.S.C. § 1101(a)(43)(G)).

“[D]etermin[ing] whether a prior conviction is an aggravated felony” is a “ ‘three-step process.’ ” Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015) (quoting Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014)). The first step is determining whether the state offense is the same or narrower than the generic offense. Id. If the state offense is overbroad, i.e. “criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is ‘divisible’ or indivisible.’ ” Id. (quoting Medina-Lara, 771 F.3d at 1112). “Only when a statute is overbroad and divisible do we turn to step three—the ‘modified categorical approach.’ ” Id. at 868. Here, the state offense, § 31.03, is overbroad and not divisible.

a) Categorical Approach

Courts “apply the categorical approach to determine whether [a state offense] is a theft offense and thus an aggravated felony” by “compar[ing] the elements of a state conviction with the elements of the generic offense, without regard to the actual conduct that led to the underlying conviction.” Orozco-Orozco, 94 F.4th at 1123 (citing United States v. Martinez-Hernandez, 932 F.3d 1198, 1205 (9th Cir. 2019) and Mendoza-Garcia v. Garland, 36 F.4th 989, 994 (9th Cir. 2022)). Because “it is the ‘conviction, not conduct’ that serves ‘as the trigger for immigration consequences,’ ” courts “examine[ ] ‘the statute of conviction, rather than [ ] the specific facts underlying the crime.’ ” Chmukh, 124 F.4th at 675 (quoting Mellouli v. Lynch, 575 U.S. 798, 806, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015) and Esquivel-Quintana v. Sessions, 581 U.S. 385, 389, 137 S.Ct. 1562, 198 L.Ed.2d 22 (2017)); see also Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (“Whether a noncitizen's actual conduct involved such facts is quite irrelevant.”) (citation omitted).

“Under this approach, [courts] assess whether the state statute ‘fits within the generic federal definition of a corresponding aggravated felony.’ ” Chmukh, 124 F.4th at 675 (quoting Moncrieffe, 569 U.S. at 190, 133 S.Ct. 1678). “If this categorical approach reveals that the elements of the state crime are the same as or narrower than the elements of the [generic] federal offense, then the state crime is a categorical match.” Villavicencio v. Sessions, 904 F.3d 658, 664, (9th Cir. 2018) (quoting Lopez-Valencia, 798 F.3d at 867). “[I]f the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an [aggravated felony], even if the defendant actually committed the offense in its generic form.” Alfred v. Garland, 64 F.4th 1025, 1031 (9th Cir. 2023) (en banc) (quoting Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)).

(1) Section 31.03 is Overbroad

“Under the INA, a conviction for a generic theft offense that results in a prison term of at least one year is an aggravated felony.” Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147 (9th Cir. 2020). “[T]he elements of a generic federal theft offense are: [1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Lopez-Valencia, 798 F.3d at 868 (citations omitted) (emphasis added).

Under § 31.03, “[t]he statutory elements of theft are (1) a person; (2) with the intent to deprive the owner of property; (3) unlawfully appropriates that property.” Lang v. State, 664 S.W.3d 155, 166 (Tex. Crim. App. 2022) (citing § 31.03(a); § 31.03(a)) (“A person commits an offense if he unlawfully appropriates property with the intent to deprive the owner of property.”) The unlawful appropriation element, defined to include “without effective consent” is at issue here. “Appropriate means ‘to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or ․ to acquire or otherwise exercise control over property other than real property.’ ” Lang, 664 S.W.3d at 166 (quoting § 31.01) (additional citations omitted). An appropriation is unlawful if, among two other options,¹⁰ “it is, without the owner's effective consent.” Id. (quoting § 31.03).

Consent is not effective if:

(A) induced by deception or coercion;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

(D) given solely to detect the commission of an offense; or

(E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.

Tex. Penal Code § 31.01(3) (emphasis added).

Defendant argues § 31.03 is overbroad as compared to the generic theft offense because “the generic definition requires that the theft occur without any consent” and § 31.03 “criminalizes theft without the owner's effective consent.” (Doc. 20 at 6 (citing United States v. Solorzano-Cruz, No. 4:15-CR-1853-TUC-JAS, 2016 WL 6832709, at *1 (D. Ariz. Nov. 21, 2016)) (emphasis added).) Defendant explains that under Ninth Circuit precedent, a state theft statute is overbroad if “the statute ‘expressly criminalizes certain conduct—such as theft of labor, false credit reporting, and theft by false pretenses’ ” and § 31.03's “without effective consent” includes “consent induced by deception or coercion.” (Doc. 20 at 7 (quoting Lopez-Valencia, 798 F.3d at 868 and citing Solarzano-Cruz, 2019 WL at 6832709, at *2).)

The Government argues Texas theft is a match for the generic offense because “the Fifth Circuit found that the Texas theft statue ‘does not deviate from the generic crime of theft.’ ” (Doc. 32 at 13 (quoting United States v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir. 2014)).) The Government does not specifically address Defendant's assertion that the Texas theft statute's inclusion of without effective consent encompasses theft by deception and allows a conviction for conduct outside the Ninth Circuit's definition of theft. Instead, the Government asserts that unlike California theft under California Penal Code § 484(a), which is overbroad, § 31.03 “suffers from no such surplusage, and the elements alone show how similar it is to the generic federal offense.” (Doc. 32 at 13.)

Section 31.03 is overbroad because it includes theft by deception and the Ninth Circuit has held “that theft statutes which include theft by deception fall outside the generic definition for theft.” Lopez-Aguilar, 948 F.3d at 1148 (citing Lopez-Valencia, 798 F.3d at 868 and United States v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011), abrogated on other grounds by Lopez-Valencia, 798 F.3d at 863); see also Lopez-Marroquin v. Garland, 9 F.4th 1067, 1070 (9th Cir. 2021) (“[I]f the elements of the state offense are broader than those of the generic offense—meaning the state offense criminalizes conduct that the generic offense does not—then there is no categorical match.”) (citing Mathis v. United States, 579 U.S. 500, 504–505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)). A district court in the Ninth Circuit reached this same conclusion about § 31.03, relying on Lopez-Valencia. Solorzano-Cruz, 2016 WL 6832709, *2 (finding § 31.03 overbroad because “[t]he Ninth Circuit has held that similar statutory schemes do not fit within the federal definition of theft” because they include “theft of labor, false credit reporting, and theft by false pretenses”). The Solorzano-Cruz court also distinguished the Fifth Circuit case the Government relies on here and explained that “the Fifth Circuit appears to equate ‘consent’ with ‘effective consent,’ ” but “the Ninth Circuit draws a distinction between the two.” Id. at *3; see also K.A. v. Attorney General of United States, 997 F.3d 99, 105–106 (3rd Cir. 2021) (distinguishing circuits that define consent as assent that is voluntary and intelligent from those that define it “as only assent” with the Ninth Circuit falling into the later).¹¹

Here, § 31.03 unquestionably includes theft by deception because deception is one of the ways consent becomes ineffective for purposes of satisfying the unlawful appropriation element of § 31.03. § 31.01(3); see also Skillern v. State, 890 S.W.2d 849, 871 (Tex. Ct. App. 1994) (“Appropriation of property is unlawful if it is without the owner's effective consent,” and “[c]onsent is not effective if it is induced by deception.”) And the Ninth Circuit has repeatedly found state statutes that include theft by deception to be overbroad. Lopez-Aguilar, 948 F.3d at 1148; Lopez-Valencia, 798 F.3d at 868; see also Guzman-Maldonado v. Garland, 92 F.4th 1155, 1158–59 (9th Cir. 2024) (“Because ‘theft by deception’ includes ‘consensual takings, ‘such as theft by false pretenses,’ we held that the Oregon robbery statute was broader than generic theft.”) (quoting Lopez-Valencia, 798 F.3d at 867–68). Accordingly, § 31.03 “sweeps more broadly than the generic crime.” Alfred, 64 F.4th at 1031.

(2) Divisibility

“[T]he modified [categorical] approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction.” Descamps, 570 U.S. at 260, 133 S.Ct. 2276 (emphasis added); id. at 263, 133 S.Ct. 2276 (explaining that “the modified categorical approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute”) (emphasis added). “Only when a statute is overbroad and divisible do we [apply] the ‘modified categorical approach.’ ” Lopez-Valencia, 798 F.3d at 868; see also Gutierrez v. Garland, 106 F.4th 866, 877 (9th Cir. 2024) (emphasis added) (“The ‘modified categorical approach’ is available ‘only when a statute is divisible—i.e., lists multiple alternative elements, and so effectively creates several different ․ crimes.’ ”) (quoting Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014)) (emphasis added). When a statute “ ‘identifies just one set of elements for the government to satisfy,’ ” the statute “ ‘is not a divisible statute’ ” and “[t]he modified categorical approach is inapplicable.” Gutierrez, 106 F.4th at 877 (quoting Orozco-Orozco, 94 F.4th at 1127 n.7). “[C]ourts may not look behind the elements of a generally drafted statute to identify the means by which a defendant committed a crime.” Mathis, 579 U.S. at 516, 136 S.Ct. 2243. “If the statute is indivisible, ‘our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense.’ ” Lopez-Valencia, 798 F.3d at 868 (quoting Medina-Lara, 771 F.3d at 1112).

The Government argues § 31.03 is divisible because the definitions of unlawful appropriation “create[ ] multiple different crimes.” (Doc. 32 at 14 (listing the three subsections of 31.03(b) that define when “[a]ppropriation of property is unlawful”)). Defendant asserts that § 31.03 is not divisible because, under Texas law, a jury need not unanimously agree how a “defendant unlawfully appropriated,” which means “the statute contains ‘multiple, alternative means of committing the crime,’ and is indivisible.” (Doc. 34 at 10–12 (quoting Rendon, 764 F.3d at 1084–85); Doc. 20 at 8–9.)

“[A] statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means.” Rendon, 764 F.3d at 1086 (citing Descamps, 570 U.S. at 263–64, 133 S.Ct. 2276) (emphasis added); see also Mathis, 579 U.S. at 517, 136 S.Ct. 2243 (explaining that the “threshold inquiry” to determine whether the statute is divisible is to determine if the alternatives are “elements or means.”). When the state statute “list[s] elements in the alternative, [it] define[s] multiple crimes.” Mathis, 579 U.S. at 505, 136 S.Ct. 2243. However, when a “statute defines one crime, with one set of elements, broader than [the] generic [offense]—while specifying multiple means of fulfilling [one] element,” the alternatives are not creating separate crimes. Id. at 507, 136 S.Ct. 2243. “Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.” Rendon, 764 F.3d at 1086. Courts may look to state law, including state court decisions that address whether the alternatives in the “statute contains elements or means” and when they do, courts “need only follow what it says.” Mathis, 579 U.S. at 518, 136 S.Ct. 2243 (citation omitted).¹²

The elements of § 31.03 are: “(1) a person; (2) with the intent to deprive the owner of property; (3) unlawfully appropriates that property.” Lang, 664 S.W.3d at 166 (citing § 31.03(a)). The alternatives the Government identifies in § 31.03(b)¹³ are alternative means of meeting the unlawful appropriation element, not separate crimes by which the statute could be divided. Looking to state law, “the method or means by which a defendant unlawfully appropriates property is not an element of the offense of theft under § 31.03.” Milton v. State, 652 S.W.2d 958, 959 (Tex. Crim. App. 1983). Theft requires “that the accused appropriated property unlawfully with the intent to deprive the owner of it.” Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992) (citing § 31.03(a)). “The manner in which he came to possess it, [however], is not an essential element” of the crime. Id. (emphasis added); see also Geter v. State, 779 S.W.2d 403, 407 (Tex. Crim App. 1989) (describing the alternatives in § 31.01(3) defining effective consent as “methods negating consent”) (emphasis added). “[A]llowing the jury to choose between alternative manner and means of committing the theft does not violate the unanimity requirement” because “while the jury must unanimously agree about the offense itself, ‘they need not be unanimous about the specific manner and means of how that offense was committed.’ ” Crouch v. State, No. 05-15-00858-CR, 2016 WL 7163859, at *4–5 (Tex. App. Dec. 1, 2016) (quoting Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011)).

Accordingly, Defendant's “due process rights were violated by defects in his underlying proceeding,” as required to establish his underlying removal order was “fundamentally unfair,” because he was improperly charged as removable for having been convicted of an aggravated felony when his theft conviction was not an aggravated felony.

2. Prejudice

Defendant has also met the prejudice requirement of § 1326(d)(3) under Valdivia-Flores and Mangas. As noted above, the circumstances of Defendant's removal are very closely aligned with those of the defendant in Valdivia-Flores and there, the court found “the defendant had been prejudiced because his predicate conviction had been misclassified in his administrative removal proceedings and could not support the ‘asserted basis’ for his underlying removal order.” Mangas, 2022 WL 898594, at *2 (summarizing and quoting Valdivia-Flores, 876 F.3d at 1210). “[T]hat reasoning controls here” because, like Mangas and Valdivia-Flores, “the sole basis of [Defendant's 2014] removal order was the purported aggravated felony conviction.” Id.; see also Valdivia-Flores, 876 F.3d at 1210 (finding the defendant was “prejudiced from his inability to seek judicial review” for a removal based on a “conviction [that did] not qualify as an aggravated felony.”).¹⁴

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Defendant's Motion to Dismiss the Information (Doc. 20.)

IT IS SO ORDERED.

FOOTNOTES

1.   The Court cites the CM/ECF electronic pagination unless otherwise noted.

2.   “SPANISH/ENGLISH” is typed into the form on a blank line before “language.”

3.   “Section 1326(a) defines the basic offense of unlawful reentry by a previously removed alien.” Portillo-Gonzalez, 80 F.4th at 914 n.1. “Subsection (b) provides for enhanced penalties if certain additional elements are established.” Id. (citation omitted).

4.   The Supreme Court found that § 1326(d) did “ ‘not comport with the constitutional requirement of due process’ insofar as it ‘impose[d] a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the [noncitizen] the deportation proceeding may have been.’ ” Palomar-Santiago, 593 U.S. at 324, 141 S.Ct. 1615 (quoting Mendoza-Lopez, 481 U.S. at 837, 107 S.Ct. 2148) (emphasis in original). Congress responded to the decision by enacting § 1326(d). Id. (citing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 441, 110 Stat. 1279).

5.   Judge de Alba explains that “in Valdivia-Flores, [the Ninth Circuit] did not excuse compliance with Section 1326(d)(2) and instead provided specific reasons, in accord with Palomar-Santiago, why a deficient Notice of Intent deprives noncitizens of judicial review.” Id. (emphasis added). The majority decision in Gonzalez-Reyes did not address whether the defendant had satisfied § 1326(d)(1) and (2) because the court found he did not meet the third prong. 172 F.4th at 1091.

6.   The Court recognizes that “even if [a defendant's] waiver [was] not ‘considered and intelligent,’ that alone would not excuse [his] failure to exhaust administrative remedies pursuant to § 1326(d)(1).” Nunez, 140 F.4th at 1165 (emphasis added). But here, Defendant does not rely only on the Government's inability to establish Defendant's waiver was considered and intelligent to satisfy the administrative exhaustion requirement. Rather, Defendant relies on the lack of any administrative remedy to challenge the legal determination that his theft conviction was an aggravated felony.

7.   The circumstances here only vary in that the defendant in Valdivia-Flores had a more lengthy criminal history, as well as numerous reentries that Defendant lacks here. See Valdivia-Flores, 876 F.3d at 1203–1204. Additionally, here, consistent with Defendant's representations that the Notice of Intent was not explained to him and he was not given a chance to read it, he, unlike the defendant in Valdivia-Flores, did not sign the form. (Doc. 20-1 at 17.)

8.   As noted above (see supra II.A), “[a] nonresident alien who is convicted of an aggravated felony within the meaning of the INA may be removed via ‘expedited’ proceedings—i.e., without a hearing before an immigration judge.” Gonzalez-Reyes, 172 F.4th at 1091 (citing 8 U.S.C. § 1228(b)(1), (2)).

9.   The Government asserts that the Court “should not ․ give[ ] weight” to Defendant's statements in his Declaration that the Notice of Intent was not read or explained to him and no one explained his right to contest or appeal his deportability because those statements are self-serving and his recollections are unreliable given it was twelve years ago. (Doc. 32 at 9–10.) However, his statements are consistent with the Notice of Intent's lack of any signature from Defendant as well as a hand-written comment on the last page of a Record of Sworn Statement form dated September 12, 2014. (Doc. 34-1 at 2–5.) These statements are unrebutted by any additional information or declarations from the Government.

10.   In addition to “without effective consent,” the statute includes additional options that make an appropriation unlawful: “the property is stolen and the actor appropriates the property knowing it was stolen by another; or ․ property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.” Tex. Penal Code Ann. § 31.03 (b).

11.   The K.A. court's collection of circuit decisions following the interpretation deeming consent “as only assent” includes three Ninth Circuit decisions. 997 F.3d 99, 106 n.1.

12.   Courts may look to “the record of prior conviction itself” in evaluating divisibility, but only “if state law fails to provide clear answers.” Mathis, 579 U.S. at 518, 136 S.Ct. 2243. The review is even more limited than the review permitted by the modified categorical approach. Id. (explaining “the sole and limited purpose of [review is] determining whether the listed [alternatives] are elements of the offense.”) (quoting Rendon, 782 F.3d at 474). “[I]f those [conviction] documents use a single umbrella term like ‘premises’: Once again, the record would then reveal what the prosecutor has to (and does not have to) demonstrate to prevail.” Id. at 519, 136 S.Ct. 2243 (citation omitted).

13.   Section 31.03(b) provides that:(b) Appropriation of property is unlawful if:(1) it is without the owner's effective consent;(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.Tex. Penal Code Ann. § 31.03.

14.   The Court notes that at least two concurrences have noted concerns about this precedent. Mangas, 2022 WL 898594, at *2–3 (describing the prejudice holding in Valdivia-Flores as “presuming prejudice” based on not being able to seek review of a removal order the misclassified the underlying felony); Gambino-Ruiz, 91 F.4th at 992–94 (describing Valdivia-Flores' prejudice holding as “an almost afterthought” and suggesting it should be read narrowly). Because Defendant faced almost identical circumstances to those in Valdivia-Flores, even reading it narrowly, it applies here.

RUTH BERMUDEZ MONTENEGRO, UNITED STATES DISTRICT JUDGE