USA v. Morales-Vasquez

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Carlos Michel Morales-Vasquez,
Defendant.
No. CR-25-01483-001-PHX-GMS
ORDER
Pending before the Court are Defendant Carlos Moralez-Vasquez’s Motions to
Dismiss the Indictment Pursuant to 8 U.S.C. § 1326(d) (Docs. 55, 56). For the reasons
stated below, the motions are denied.
BACKGROUND
I. Defendant’s Immigration & Criminal History
Though it is unclear when Defendant first arrived in the United States, Defendant
was first found deportable in January 2009 after he was convicted of a misdemeanor for
burglary and sentenced to thirty days in jail with three years of probation. (Doc. 60-1 at 2-
4; Doc. 60-10 at 3). Defendant was granted a voluntary return to Mexico, admitting that
he was present in the United States illegally and stating that he would not face harm in
Mexico upon returning there. (Doc. 60-1 at 2). He made no claim to United States
citizenship. (Id. at 4). He later violated this probation and was sentenced to an additional
forty-four days in prison. (Id. at 3).
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On January 15, 2010, Defendant reentered the United States at the San Ysidro,
California Port of Entry. (Doc. 60-2 at 2; Doc. 60-4 at 3). A few months later, in March
2010, Defendant was arrested twice, and in April 2010, was convicted of Grand Theft and
of False Imprisonment, with each conviction carrying a two-year prison sentence. (Doc.
60 at 2; Doc. 60-10 at 3).
II. February 24, 2011 Administrative Removal Proceedings
Following these convictions, on February 24, 2011, the United States Department
of Homeland Security (“DHS”) initiated expedited administrative removal proceedings
against Defendant. (Doc. 60-2 at 2-4). As part of those proceedings, DHS completed a
Form I-851, in which it alleged that Defendant was deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an aggravated felon in reliance on his False Imprisonment
conviction. (Id.). After the form was explained to Defendant in Spanish, he signed it,
acknowledging his receipt of it; indicating that he admitted its allegations, that he was
“deportable” and “not eligible for any form of relief from removal”; and waiving any right
“to rebut and contest the” charges against him, including his “right to file a petition for
review of the final removal order.” (Id. at 3).
Via Form I-294, DHS informed Defendant that he was “prohibited from entering,
attempting to enter, or being in the United States,” “at any time” because of his status as
an aggravated felon. (Doc. 55-1 at 4; Doc. 60-3 at 2). He requested removal to Mexico,
waived the fourteen-day period generally provided for appeals following the entry of a
final administrative removal order (“ARO”), and was accordingly removed to Mexico that
same day through the San Ysidro Port of Entry. (Doc. 56-2 at 3; Doc. 60-2 at 3-4; Doc.
60-5 at 2-3).
III. March 26, 2011 Expedited Removal Proceeding
On March 26, 2011, DHS initiated expedited removal proceedings against
Defendant after he applied for admission through the pedestrian lanes of the San Ysidro
Port of Entry, without any valid entry documents while claiming to be a United States
citizen. (Doc. 60-5 at 3; Doc. 60-6 at 2; Doc. 60-7 at 3). Upon secondary inspection,
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officers “discovered that [Defendant] was in fact” making an official false claim of
citizenship and that he was not a United States Citizen. (Doc. 60-5 at 3). Defendant then
“freely and voluntarily admitted to his true name.” (Id.).
During “an oral interview and sworn statement” conducted in Spanish, Defendant
stated that his “purpose for attempting to enter the United States” was to “go back home”
to California “[t]o reunite with [his] family.” (Doc. 60-7 at 3-4). He admitted that he had
been previously removed from the country and that he knew his removal was “for life.”
(Id. at 3). He signed this statement, affirming that it was “true and correct to the best of
[his] knowledge.” (Id. at 4). Indeed, Defendant concedes that “he made the false claim
[and] that he knew it was false.” (Doc. 56 at 14).
Subsequently, DHS found that Defendant was “inadmissible to the United States”
under 8 U.S.C. § 1182(a)(6)(C)(ii), (a)(7)(A)(i) because he was not a citizen of the United
States despite “making an oral false claim to being” one, was a citizen and national of
Mexico, had “willfully misrepresented” his “true identity,” and was “not in possession of
a” valid entry document. (Doc. 60-5 at 3; Doc. 60-6 at 2, 4; Doc. 60-7 at 2-4). He was
accordingly ordered removed from the United States through Form I-860. (Doc. 60-6 at
2).
Defendant’s Form I-296—Notice to Alien Ordered Removed/Departure
Verification—stated that he was “prohibited from entering, attempting to enter, or being in
the United States . . . at any time because in addition to having been found inadmissible,”
he had “been convicted of a crime designated as an aggravated felony.” (Doc. 60-8 at 2).
He was again “summarily removed from the United States for life” via the San Ysidro Port
of Entry. (Id.; Doc. 56-2 at 3; Doc. 60-5 at 3).
IV. 2025 Reentry of Removed Alien Charge
On September 29, 2022, Defendant was found in Parker, La Paz County, Arizona.
(Doc. 15 at 1; Doc. 60 at 3). On September 30, 2022, Arizona law enforcement determined
that Defendant “was a removed alien,” and filled out a Form I-213—Record of
Inadmissible Alien. (Doc. 60 at 3; Doc. 60-9 at 2).
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On October 28, 2025, Defendant was indicted for one count of Reentry of Removed
Alien under 8 U.S.C. § 1326(a), enhanced by (b)(1), for being found in the United States
“after having been previously denied admission, excluded, deported, and removed from
the United States at or near San Ysidro, California, on or about March 26, 2011,” when his
expedited removal order (“ERO”) was issued. (Doc. 15 at 1; Doc. 60 at 3). At his
arraignment, Defendant pled not guilty. (Doc. 23).
During the Final Pretrial Conference, held on May 18, 2026, counsel for the
Government and counsel for Defendant presented oral argument on these motions. (Doc.
72).
DISCUSSION
Defendant has since filed two Motions to Dismiss the indictment against him,
challenging the ERO which underlies his illegal reentry charge through two collateral
attacks. (Docs. 55, 56).
I. Legal Standards
Under 8 U.S.C. § 1326(d), a defendant charged with illegal reentry after removal
may collaterally attack the predicate removal order. But they may not do so unless they
“demonstrate[] that—(1) [they] exhausted any administrative remedies that may have been
available to seek relief against the order; (2) the deportation proceedings at which the order
was issued improperly deprived [them] of the opportunity for judicial review; and (3) the
entry of the order was fundamentally unfair.” Id.; United States v. Palomar-Santiago, 593
U.S. 321, 324-25 (2021). Defendants must “meet all three” conditions to challenge their
underlying removal orders. Palomar-Santiago, 593 U.S. at 326. “Indeed, the substantive
validity of the removal order is quite distinct from whether the noncitizen exhausted his
administrative remedies . . . or was deprived of the opportunity for judicial review.” Id. at
327.
In the context of expedited removals, the first two collateral attack requirements are
generally satisfied because neither administrative exhaustion nor judicial review are
available to an alien removed through such proceedings. United States v. Gambino-Ruiz,
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91 F.4th 981, 985 (9th Cir. 2024). Defendants seeking to challenge the validity of their
EROs therefore need only demonstrate that the order was fundamentally unfair. Id. A
defendant can establish that a removal order was “fundamentally unfair” by showing that
(1) the defendant’s “due process rights were violated by defects in the underlying
deportation proceeding,” and that (2) the defendant “suffered prejudice as a result.” Id.
(quoting United States v. Ortiz-Lopez, 385 F.3d 1201, 1204 (9th Cir. 2004)). To show that
the due process defects caused prejudice “the defendant must show that it was ‘plausible’
that he would have received some form of relief from removal.” United States v. Gomez,
757 F.3d 885, 899 (9th Cir. 2014); United States v. Garcia-Martinez, 228 F.3d 956, 963
(9th Cir. 2000) (holding that the defendant “must demonstrate plausible grounds for relief
from deportation”).
Finally, if a defendant has been repeatedly removed from the United States under
multiple removal orders, the validity of prior orders may impact the validity of subsequent
orders—particularly “reinstatements.” United States v. Arias-Ordonez, 597 F.3d 972, 978
(9th Cir. 2010), abrogated on other grounds as recognized by United States v. Portillo-
Gonzalez, 80 F.4th 910, 918 (9th Cir. 2023). The reinstatement statute allows DHS to
reinstate a prior order of removal “from its original date” without reopening the prior order
or subjecting it to review if the “alien has reentered the United States illegally after having
been removed . . . under an order of removal.” 8 U.S.C. § 1231(a)(5). In such cases, “the
alien is not eligible and may not apply for any relief.” Id. If DHS reinstates a defendant’s
original removal order, and that original order is invalidated through collateral attack,
neither the original order nor the reinstatement can be considered valid. See, e.g., Arias-
Ordonez, 597 F.3d at 978. In other words, “a successful collateral attack on a removal
order precludes reliance on a reinstatement of that same order in criminal proceedings for
illegal reentry.” United States v. Nunez, 140 F.4th 1157, 1162 (9th Cir. 2025) (quoting
Arias-Ordonez, 597 F.3d at 982).
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II. Analysis
Defendant’s challenges to the ERO rely on two key issues: (1) whether the ERO is
a mere reinstatement of the ARO, which he alleges relied on an erroneous determination
that he was an aggravated felon (Doc. 55), and (2) whether the ERO relies on an erroneous
application of the false citizenship claims statute (Doc. 56). As discussed below,
Defendant’s first challenge fails because (a) the ERO is not a reinstatement of the ARO and
(b) any assumed invalidity in the ARO did not prejudice Defendant. His second challenge
similarly fails because he has not shown that any alleged error in the ERO was prejudicial.
A. ERO as Reinstatement of ARO
Even assuming that the ARO’s aggravated felon determination was made in error,
the ERO does not reinstate the ARO and any reliance on the ARO did not prejudice
Defendant.
First, the ERO has independent legal effect from the ARO and cannot be invalidated
as a reinstatement. “A ‘reinstatement’ is an administrative procedure through which
immigration officials can rely on a prior removal order to effect an alien’s departure from
the country, bypassing the procedural requirements, and protections, of a regular removal
proceeding.” Arias-Ordonez, 597 F.3d at 978. Expedited removal proceedings are a
distinct procedure, triggered by certain conditions of an alien’s application for admission.
8 U.S.C. § 1225(b)(1)(A)(i).
“An alien present in the United States who has not been admitted or who arrives in
the United States . . . shall be deemed . . . an applicant for admission.” 8 U.S.C.
§ 1225(a)(1). “If an immigration officer determines that an “applicant for admission” is
“inadmissible,” the officer will “order the alien removed from the United States without
further hearing or review” through expedited removal proceedings unless the alien
expresses an intent to apply for asylum or a fear of persecution. Id. § 1225(b)(1)(A)(i). As
relevant here, an applicant is considered inadmissible if they “falsely represent” themselves
“to be a citizen of the United States for any purpose or benefit” of any “Federal or State
law.” Id. § 1182(a)(6)(C)(ii)(I). Similarly, an applicant is considered inadmissible if, at
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the time of application, they do not possess valid entry documents. Id. § 1182(a)(7)(A)(i).
The applicant bears the “burden of proof . . . to establish that” they are “not inadmissible.”
Id. § 1361. If the applicant does not do so, they must be removed from the United States
through expedited removal procedures. Id. § 1225(b)(1)(A)(i); Dep’t of Homeland Sec. v.
Thurasissigiam, 591 U.S. 103, 109 (2020).
In this case, though the Form I-296 from Defendant’s expedited removal
proceedings incorporate the finding that he had “been convicted of a crime designated as
an aggravated felony,” it states that this finding is “in addition” to his “having been found
inadmissible.” (Doc. 60-8). Form I-860—Notice and Order of Expedited Removal—bases
Defendant’s ERO on his inadmissibility due to his false claim of United States citizenship
and his lack of valid entry documents at the time of his application for admission under 8
U.S.C. § 1182(a)(6)(C)(ii), (a)(7)(A)(i). (Doc. 60-6 at 2, 4). Because the ERO is not a
reinstatement of the ARO, any invalidity in the ARO does not automatically invalidate the
ERO.
Second, Defendant argues that the ARO impacted the “legal consequences that
make the” ERO “operative in this prosecution.” (Doc. 55 at 13-14). Indeed, Defendant is
correct that his Form I-296 incorporates the aggravated felony as a part of the justification
for Defendant’s lifetime ban from the United States. (Doc. 60-8 at 2). Nonetheless,
Defendant has not demonstrated that this caused him any prejudice because he cannot show
any plausible grounds for relief from deportation under the ERO. Gomez, 757 F.3d at 899.
As noted above, the ERO provided grounds for removal independent of the ARO.
Defendant himself notes that he is “not arguing that but for the defective” ARO “there
would be no” ERO but nonetheless argues that the ARO’s impact on the lifetime ban
renders the ERO invalid. (Doc. 55 at 13-14).
In support of this argument, Defendant brings the Court’s attention to the other
potential legal consequences of the ERO which “gradually increase time of
inadmissibility,” ranging from a five- to twenty-year prohibition on “entering, attempting
to enter, or being present in the United States.” (Id.; Doc. 60-8 at 2); 8 U.S.C.
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§ 1182(a)(9)(A). While Defendant provides these other options, he makes no argument
that his inadmissibility, past voluntary departure, and prior removal from the United States
would not have triggered the twenty-year ban, which would have still been in place when
he was found in the United States in September 2022. (See Doc. 55 at 13-14); 8 U.S.C.
§ 1182(a)(9)(A) (applying a ban of twenty years to any alien ordered removed after a
previous removal). Defendant is therefore incorrect that the ERO would have “impose[d]
a materially different legal regime” if not for the ARO’s aggravated felony determination.
(Doc. 55 at 14).
Thus, because Defendant does not argue that he would not have been removed from
the United States in March 2011 or that there would have been any meaningful difference
in the consequences of the ERO when Defendant was found in the United States in 2022,
he has not alleged a plausible basis for relief from removal based on the ERO’s
incorporation of the ARO’s aggravated felony finding. Because Defendant has not fulfilled
§ 1326(d)’s requirements, the ERO is not subject to collateral attack on this basis and his
first Motion to Dismiss (Doc. 55) is accordingly denied.
B. ERO
The crux of Defendant’s second motion—as emphasized by his counsel in oral
argument—is that the immigration officer who conducted Defendant’s expedited removal
proceedings did not make the requisite finding that Defendant made the false citizenship
claim for “a purpose or benefit in accordance with” any Federal or State law. Ramírez
Muñoz v. Garland, 71 F.4th 1174, 1175 (9th Cir. 2023). Given the context of Plaintiff’s
false claim of citizenship, this argument is without merit.
As noted above, an applicant is considered inadmissible if they “falsely represent”
themselves “to be a citizen of the United States for any purpose or benefit” of any “Federal
or State law.” Id. § 1182(a)(6)(C)(ii)(I). “Acting for ‘any purpose or benefit under’” does
not include “acting to evade the law’s operation.” Ramírez Muñoz, 71 F.4th at 1175. For
instance, a false claim of citizenship made by an alien present in the United States for the
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purpose of avoiding removal, acts to evade the law or detection by law enforcement, not to
seek any purpose or benefit under the law. Id. at 1177-78.
In contrast, when made at a port of entry in an application for admission, a false
claim of citizenship “to a border official to obtain entry into the United States” is an act
seeking a purpose or benefit under the law because entry to the United States is “a legal
benefit.” Cf. id. at 1180 (applying the same principle to an alien “who presents a fraudulent
U.S. birth certificate to a border official”). While an alien making a false claim of
citizenship at a port of entry may be attempting to evade inspection, they simultaneously
seek the benefits that a United States citizen is entitled to during the admission process: “a
United States citizen is not subject to the same scrutiny and requirements as an alien during
the process of inspection and admission.” See In re Pinzon, 26 I&N. Dec. 189, 191 (BIA
2013) (citing Reid v. INS, 420 U.S. 619, 24-25 (1975)); In re Richmond, 26 I&N Dec. 779,
788 (BIA 2016) (“We have similarly found it to be self-evident that an alien who makes a
false claim to United States citizenship to DHS officers at a port of entry in order to gain
admission to the United States has done so . . . to obtain the ‘benefit’ of entry”).
Here, Plaintiff approached the San Ysidro port of entry just over a month after he
was removed through that same port, knew he had a lifetime ban from United States under
the ARO, admitted that he falsely represented himself as a United States Citizen, admitted
that he knew the representation was false when he made it, (Doc. 56 at 12, 14; Doc. 60-7
at 3). As an applicant for admission at the port of entry, making a false claim of citizenship
to seek entry to the United States, Defendant sought a legal benefit in violation of §
1182(a)(6)(C)(ii)(I). Thus, Defendant’s motion fails because he has not shown that his due
process rights were violated and, as such, cannot show that the ERO was fundamentally
unfair under Palomar-Santiago, 593 U.S. at 326.
Moreover, Defendant fails to plausibly allege that he would have received some
form of relief from removal if not for the error. Defendant does not argue that he would
have been able to show that he was not inadmissible even without the false citizenship
claim determination. (See Doc. 56 at 10-15). In doing so, he fails to bear his burden to
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establish non-inadmissibility upon application for admission. 8 U.S.C. § 1361;
Thurasissigiam, 591 U.S. at 109. Indeed, Defendant’s lack of valid entry documents also
rendered him inadmissible and triggered expedited removal proceedings. 8 U.S.C.
§§ 1182(a)(7)(A)(i), 1225(b)(1)(A)(i).
Defendant’s asserted plausible basis for relief from removal is that he would have
been permitted to withdraw his application for admission if not for the immigration
officer’s false citizenship claim determination. (Doc. 56 at 12-14). Under 8 U.S.C.
§ 1225(a)(4), “[a]n alien applying for admission may, in the discretion of the Attorney
General and at any time, be permitted to withdraw the application for admission and depart
immediately from the United States.” But, as the Government notes, this is a discretionary
form of relief. (Doc. 60 at 13).
To establish prejudice, a defendant must show that it is plausible that the
immigration officer would have used their discretion in the defendant’s favor to give
permission to withdraw. United States v. Barajas-Alvarado, 655 F.3d 1077, 1090 (9th Cir.
2011). DHS’s Inspector’s Field Manual “guide[s] the immigration inspector’s exercise of
discretion” when evaluating whether to allow an alien to withdraw their application and
thus provides a framework through which courts may assess the plausibility of such relief.
Id. at 1090 & n.16. The Field Manual provides six factors for immigration officers to
consider: “(1) the seriousness of the immigration violation; (2) previous findings of
inadmissibility against the alien; (3) intent on the part of the alien to violate the law;
(4) ability to easily overcome the ground of inadmissibility; (5) age or poor health of the
alien; and (6) other humanitarian or public interest considerations.” Id. at 1090.
Here, the balance of these factors weighs heavily against any plausibility that
Defendant would have been given permission to withdraw. First, as discussed above,
Defendant admitted to falsely representing himself as a United States Citizen and that he
knew the representation was false when he made it. (Doc. 56 at 14). He also admittedly
had no valid entry documents. (Id. at 12). Second, as discussed above, Defendant had
previously been found deportable and inadmissible. Because these facts would not allow
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Defendant to easily overcome the grounds for inadmissibility, the fourth factor also weighs
against Defendant. Barajas-Alvarado, 655 F.3d at 1090.
The third factor also weighs against Defendant because an immigration officer
would likely have determined that Defendant intended to break the law.1. An immigration
officer would have likely seen Defendant’s ARO—issued approximately one month
earlier—which provided him notice of a lifetime ban as some evidence of intent to break
the law. The likelihood of this finding is further bolstered by Defendant’s admission during
his expedited removal proceedings that he knew he was already subject to a lifetime ban
under the ARO. (Doc. 60-7 at 3). While Defendant claims that he “immediately admitted
his identity and nationality” and “did not attempt to sustain any deception” (Doc. 56 at 12-
13), this characterization is somewhat misleading. He did not admit his lack of citizenship
or his identity until after the immigration officers had already determined that he was in
fact making a false citizenship claim. (Doc. 60 at 11; Doc. 60-5 at 3).
Even further, the sixth factor’s concern with the public interest decreases the
plausibility that Defendant would have been allowed to withdraw. As the Government
highlights, Defendant had an existing misdemeanor burglary conviction, a felony false
imprisonment conviction, and a felony grand theft conviction at the time of his application.
(Doc. 60 at 14). Regardless of whether any of these criminal charges would qualify as
aggravated felonies under federal law, an immigration officer would likely find that
Defendant’s criminal history counseled against allowing Defendant to withdraw his
application.
In contrast, the fifth factor has little impact on the overall balance. Other than
asserting that he had limited cognitive ability, Defendant was twenty-one years old at the
1 Though related, this determination is distinct from the Court’s rejection of Defendant’s
argument that he did not have the requisite “purpose” in making a false citizenship claim.
In that argument, Defendant avers that the false citizenship claim statute considers only
whether “the false claim was made to comport with some specific legal requirement and to
obtain a benefit authorized by or to achieve a purposes consistent with, the specific law at
issue,” and not on whether the “false claim [was] made merely to avoid adverse legal
consequences.” (Doc. 56 at 6). The intent inquiry undertaken here focuses generally on
whether the alien intended to violate the law, without concern for the specific purpose or
benefit of the alien’s actions.
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time of his application and makes no argument that he was in poor health. (Doc. 56 at 13;
Doc. 55-4 at 2). While he claims that the immigration officer would have perceived his
“recent history of trauma” as favorable to granting permission to withdraw, he provides no
description of this trauma. (Doc. 56 at 13).
Thus, taken together, factors (1), (2), (3), (4), and (6) weigh heavily against
Defendant’s claim of plausible relief. Under the Field Manual, it is very unlikely that an
immigration officer would have granted Defendant permission to withdraw his application.
As the Government observes, “Defendant cannot show that it was ‘plausible’ that he would
not have been removed on March 26, 2011” (Doc. 60 at 12) as required under § 1326(d)(3).
Gomez, 757 F.3d at 899; Garcia-Martinez, 228 F.3d at 963. Because the ERO cannot be
collaterally attacked on this basis, Defendant’s second Motion to Dismiss (Doc. 56) is
denied.
CONCLUSION
Because Defendant fails to establish the requirements of § 1326(d) on either motion,
he cannot collaterally attack the ERO as a predicate to his indictment for Reentry of
Removed Alien. Palomar-Santiago, 593 U.S. at 326.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss Indictment (Doc. 55) and
Motion to Dismiss Indictment (Doc. 56) are DENIED.
Dated this 19th day of May, 2026.
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