USA v. Blanco-Melgoza

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Cesar Blanco-Melgoza,
Defendant.
No. CR-24-07135-001-TUC-JGZ (MSA)
ORDER
Pending before the Court is a Report and Recommendation (R&R) (Doc. 41) issued
by United States Magistrate Judge Maria Aguilera recommending the Court deny
Defendant’s Motion to Dismiss the Indictment Under 8 U.S.C. § 1326(d) (Doc. 22).
Defendant filed an Objection to the R&R (Doc. 46), and the Government filed a Response
(Doc. 49).1 For the following reasons, the Court will overrule Defendant’s Objection,
accept the Magistrate Judge’s recommendation, and deny Defendant’s Motion to Dismiss.
I. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, this Court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s
findings and recommendations de novo if objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in
1 Defendant also filed a reply. (Doc. 50.) Although the R&R prohibited replies on
objections without the district court’s permission, (Doc. 41 at 6), in its discretion, the Court
will accept the reply. The Court refers to the reply brief because it clarifies Defendant’s
arguments.
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 1 of 10

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
original). District courts are not required to conduct “any review at all . . . of any issue that
is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
II. FACTUAL AND PROCEDURAL HISTORY
The R&R provides the following background on the case:
Defendant, a Mexican citizen, was admitted into the country as a
lawful permanent resident in 1993. (Doc. 22-1 at 2.) In 2000, he was
convicted of possession of cocaine in violation of California law. (Doc. 22-
2 at 3.) Immigration officials served him with a notice to appear in removal
proceedings, alleging that he was deportable for having committed a
controlled substance offense. (Id.) At a removal hearing on March 8, 2001,
an immigration judge ordered that he be deported to Mexico. (Doc. 22-3 at
2.) The record does not include a transcript or recording of that hearing, but
it shows that Defendant attended and that he was deported a few days later.
(Doc. 22-3 at 2; Doc. 25-4 at 4.) Defendant did not appeal the immigration
judge’s order before his removal. (Doc. 22-3 at 2.)
Defendant has been deported from the United States several times
since then, each time based on the 2001 order of removal. (Doc. 25-4 at 4.)
He was apprehended in Arizona in 2024 and indicted for illegal reentry in
violation of 8 U.S.C. § 1326. (Docs. 1, 8.) He filed a motion to dismiss,
arguing that the 2001 order of removal is constitutionally defective and thus
cannot serve as a predicate for his charge. (Doc. 22.)
(Doc. 41 at 1–2.)
After the parties fully briefed Defendant’s Motion to Dismiss, Judge Aguilera set
oral argument and provided a preliminary analysis to focus the parties’ arguments. (Doc.
32.) Oral argument took place on September 9, 2025. (Docs. 34, 36.) Judge Aguilera
determined the Motion, supported by the absence of a contemporaneous record and
Defendant’s declaration only, raised a factual dispute warranting an evidentiary hearing.
(Doc. 41 at 3 (citing Doc. 22-4 ¶ 16).) Defendant declined the invitation to testify at the
hearing, invoking his Fifth Amendment privilege against self-incrimination. (Doc. 40.) The
Court did not hold an evidentiary hearing, and Judge Aguilera issued the R&R on October
23, 2025. (Doc. 41.) Judge Aguilera recommended this Court deny the Motion because
Defendant had “not presented any competent evidence that something improper occurred
at his removal hearing.” (Id. at 2.)
After reviewing the R&R, the Court determined additional evidence and argument
would aid its decision. (Doc. 51.) The Court held a status conference, and the parties agreed
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 2 of 10

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to an evidentiary hearing at which Defendant would testify and be subject to cross-
examination. (Doc. 54.) The Court held the evidentiary hearing on February 11, 2026.
(Doc. 60.) Defendant was the only testifying witness. The remaining evidence consisted of
the documents the parties submitted as exhibits to their briefing on the Motion. (Doc. 61.)
A. Evidence
“There is no transcript of Defendant’s removal hearing, and the audio recording is
inaudible.” (Doc. 32 at 1.) Thus, the evidence of what transpired on and around
Defendant’s 2001 removal proceedings is limited to Defendant’s memory, the memory of
witnesses to the proceedings, and the contents of Defendant’s A-file.
Defendant’s Motion includes four attachments, all admitted as exhibits at the
evidentiary hearing: (1) Defendant’s Immigrant Visa and Alien Registration Form 155A
(Doc. 22-1); (2) a Notice to Appear (“NTA”) in removal proceedings, dated December 7,
2000 (Doc. 22-2); (3) the Removal Order, dated March 8, 2001 (Doc. 22-3); and (4)
Defendant’s Declaration, dated June 10, 2025 (Doc. 22-4). On the Removal Order, the
Immigration Judge (“IJ”) indicated Defendant waived his right to appeal by circling the
word “Waived” and crossing out the deadline to appeal. (Doc. 22-3 at 2.) Court staff signed
the order, certifying it was personally served on Defendant the same day. (Id. at 3.)
In his Declaration, Defendant attested that he did not have a lawyer and appeared
pro se at the 2001 removal hearing. (Doc. 22-4, ¶ 8.) Defendant stated he “do[es] not
recall”: (a) whether the IJ told him he could hire a lawyer; (b) whether the IJ asked if he
wanted more time to look for and obtain a lawyer; (c) if he was informed of his rights to
present evidence and challenge the government’s evidence; or (d) seeing a Notice to
Appear or an explanation of its contents in Spanish. (Id. ¶¶ 9, 11–13.) Defendant stated he
“do[es] not remember the immigration court or anyone else providing [him] with an
explanation about [his] right to appeal the removal order or hire counsel to help [him] in
that endeavor.” (Id. ¶ 16.) Defendant affirmatively stated: (a) he “was never provided a list
of free legal service providers”; (b) the IJ “did not explain to [him] that [he] had any
possibility of applying for cancellation of removal for permanent residents [sic]”; (c) he
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 3 of 10

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“was [not] offered nor given a cancellation of removal application”; (d) he “was deported
to Mexico . . . without any documents or other paperwork”; and (e) he “was not given any
forms to appeal [his] deportation.” (Id. ¶¶ 10, 14–16.)
The Government’s Response also includes four attachments which were admitted
as exhibits at the evidentiary hearing. The first is the NTA, including an additional page
signed by Defendant, indicating an immigration officer served the NTA on Defendant in
person on February 7, 2001. (Doc. 25-1.) Two boxes are checked indicating that a list of
providers of free legal services was given to Defendant, and Defendant was provided oral
notice in Spanish of the time and place of his hearing and the consequences of failing to
appear. (Id. at 2.) The NTA explains the respondent’s right to counsel and right to present
evidence and challenge the Government’s evidence. (Id.) The NTA states the IJ will advise
respondents “of any relief from removal for which [they] may appear eligible,” and
respondents “will be given a reasonable opportunity to make any such application to the
[IJ].” (Id.)
The second attachment contains two copies of a Notice of Rights form, with a
section entitled “Notice of Availability of Legal Services.” (Doc. 25-2.) The form is in
Spanish, signed by Defendant, and has a box checked indicating an immigration officer
read the Notice to Defendant in Spanish. (Id. at 1, 4.) The form includes a list of free and
low-cost legal service providers. (Id. at 2–3, 5–6.)
The third attachment is a Record of Action (“ROA”) of the removal proceedings on
March 8, 2001. (Doc. 25-3.) The ROA consists of handwritten notes by the government
attorney at the removal hearing. (Doc. 25 at 6.) On the form, the attorney placed a
checkmark indicating Defendant waived his appeal rights and wrote “No appeals,”
“Waives atty,” “admits conviction,” and “R admits prior convicts,” noting two potential
criminal convictions in 1995. (Doc. 25-3.)
The fourth attachment is a plea agreement from September 2007 in which Defendant
pleaded guilty to an illegal re-entry charge in the Central District of California. (Doc. 25-
4.) Defendant stipulated to the fact that he “was lawfully removed from the United States
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 4 of 10

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
on or about March 10, 2001.” (Id. at 4.)
At the evidentiary hearing, Defendant testified as to his memory of the removal
proceedings and the statements made in his declaration. (See Doc. 65.)
III. DISCUSSION
A. Legal Standard – Collateral Challenges Under 8 U.S.C. § 1326
A defendant charged with illegal reentry under 8 U.S.C. § 1326 may bring a
collateral challenge to the underlying removal order only “if the defendant demonstrates
that (1) ‘the alien exhausted any administrative remedies that may have been available’ to
contest the order; (2) the underlying removal proceedings ‘improperly deprived the alien
of the opportunity for judicial review’; and (3) ‘the entry of the order was fundamentally
unfair.’” United States v. Valdivias-Soto, 112 F.4th 713, 721–22 (9th Cir. 2024) (quoting
8 U.S.C. § 1326(d)). Each prong is mandatory. United States v. Palomar-Santiago, 593
U.S. 321, 329 (2021). However, a single consequential due process violation may satisfy
all three. See Valdivias-Soto, 112 F.4th at 773 n.16. “If the defendant satisfies all three
prongs, the challenged removal order may not be used to establish any element of an illegal
reentry offense.” Id. at 722. A defendant’s collateral attack fails if he validly waives his
right to appeal the underlying deportation order.2 United States v. Gomez, 757 F.3d 885,
893 (9th Cir. 2014) (citations omitted).
B. Recommendation & Objections
The Magistrate Judge recommended this Court deny Defendant’s Motion because,
without an evidentiary hearing, “there is no competent evidence that Defendant’s rights
were violated at his removal hearing. . . . and there is a clear path to the Court’s conclusion
that Defendant has not met his burden under § 1326(d).” (Doc. 41 at 4.) The Magistrate
Judge found Defendant’s declaration was inadmissible hearsay, and even if she considered
it, she would give it no weight because: (1) Defendant recalls very little of what happened
at the removal hearing; (2) multiple statements in the declaration are contradicted by
2 The attack fails where a noncitizen validly waived their right to appeal both because the
Government cannot have improperly deprived the noncitizen of judicial review, and
because a noncitizen, who did not appeal to the BIA, cannot have exhausted their
administrative remedies.
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 5 of 10

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
records in the A-file; and (3) his uncontradicted affirmative assertions were not subject to
cross-examination and the Magistrate Judge had not been able to assess Defendant’s
demeanor. (Id. at 4–5.)
Defendant objected on the ground that the Magistrate Judge committed legal error
in failing to consider his declaration and to account for his allegations of multiple violations
at the removal hearing. (Doc. 50 at 3.) Specifically, Defendant argues this Court should
consider, and credit, the declaration because: (1) the Government did not object to its
admission into evidence and even conceded its validity at the motion hearing;3 (2) an
individual, who was unrepresented in removal proceedings, needs only to contest the
validity of the prior removal with alleged facts when bringing a collateral attack under
§ 1326(d); and (3) the Magistrate Judge failed to consider that Defendant’s declaration is
supported by the record of the underlying removal proceeding because the record does not
contradict most of Defendant’s allegations. (Doc. 46 at 9; Doc. 50 at 2–3.)4
C. Defendant’s Testimony
As the Magistrate Judge explained, Defendant’s declaration suffers from several
problems:
[Defendant] admits that he recalls very little of what occurred at his removal
hearing. (Doc. 22-4, ¶¶ 9, 11–13, 16.) Notably, while he is not sure whether
he was served with a Notice to Appear, his A-file includes a Notice to Appear
bearing his signature. (Doc. 25-1.) And while he says that he does recall that
he was never provided a list of free and low-cost legal services, his A-file
includes a Spanish-language Notice of Rights bearing his signature, and the
Notice is accompanied by a list of free and low-cost legal services. (Doc. 25-
2.)
(Doc. 41 at 5.) Thus, the evidentiary hearing was an opportunity for Defendant to establish
his credibility and clarify the allegations of defects in his removal proceedings. Defendant
failed to do so.
Defendant’s testimony also calls his credibility and memory of the removal
3 The parties’ arguments and the Magistrate Judge’s decision about the declaration’s
admissibility are moot in light of Defendant’s subsequent decision to testify and the
declaration’s admission as an exhibit at the evidentiary hearing. (See Doc. 61.)
4 Defendant’s Objection also reiterates arguments made in the Motion regarding the
elements of his collateral challenge under § 1326(d), which the Court does not reach. (Doc.
46 at 3–8.)
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 6 of 10

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
proceedings into question. Defendant repeatedly stated he did not remember many aspects
of the proceedings. (See, e.g., Hr’g Tr., Doc. 65 at 17:15–18 (“I don’t recall many things.”);
id. at 19:25–20:3 (“I don’t recall [whether the IJ explained my right to obtain legal
representation].”); id. at 20:13–16 (“I don’t recall if [the IJ] asked how long I had been [a
lawful permanent resident].”); id. at 35:15–22 (“I don’t remember [applying for voluntary
departure].”); id. at 38:14–17 (“So do you remember everything that happened at the
hearing? A: Not enough, but I do remember a little.”).) On redirect, defense counsel asked
whether Defendant recalled the Notice of Rights being read to him in Spanish. (See id. at
37:19–22.) Defendant answered: “No, I don’t recall.” (Id. at 37:23.) Given the ambiguity
in both the question and answer (which is present throughout Defendant’s testimony and
declaration), the Court asked Defendant to clarify whether he meant (1) he does not
remember if the officer read him the document, or (2) he does remember that the officer
did not read the document to him, and provided a lengthy explanation of the distinction.
(Id. at 37:24–40:2.) Initially, Defendant said, “Honestly, Your Honor, I don’t remember,”
and at the end of the Court’s explanation, Defendant said, “I don’t remember what
happened because it was a long time ago.” (Id. at 40:3–5.)5 This testimony suggests that
throughout the hearing, when Defendant said he “does not recall” or “does not remember,”
he was not asserting that some event did not occur, but rather that he simply does not
remember whether the event occurred at all. And his lack of memory is understandable
given that the hearing occurred 25 years ago.
Defendant’s limited memory of the proceedings raises doubts about the veracity of
his testimony that he remembers details of what did not happen at the hearing. (See, e.g.,
id. at 20:4–9 (“Q: Did the Court explain to you that you could, if you recall, request a
continuance to look for legal counsel? A: No. Q: Did the Court offer more time to look for
5 Defense counsel then asked whether the Notice of Rights was explained to Defendant in
Spanish, and Defendant answered, “No, I don’t remember that it was explained to me in
Spanish. Otherwise, I would have remembered. I’m 100% sure that it was not explained to
me.” (Id. 40:7–14.) It is unclear what distinction defense counsel was attempting to make
between having the document “read” or “explained” to Defendant. But it appears that
Defendant either directly contradicted his earlier testimony, or he still did not understand
the distinction between asserting an event did not occur and asserting he did not remember
whether an event occurred.
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 7 of 10

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a lawyer? A: No.”); id. at 20:21–21:2 (“[The IJ] didn’t mention anything like [cancellation
of removal].”); id. at 21:7–9 (“Q: After the judge made a decision in your case, do you
recall him explaining your appeal rights to you? A: No.”). Other pieces of testimony
contradict each other. (Compare, e.g., id. at 18:14–15 (“Q: And do you recall receiving
documents before the hearing? A: No.”), with id. at 19:16–19 (“Q: And when you were
given those documents before the hearing with the list of lawyers, did anybody explain
them to you that you can recall? A: No.”).)
D. Analysis
The Court adopts the Magistrate Judge’s recommendation to deny Defendant’s
Motion because, given Defendant’s testimony at the evidentiary hearing, he has failed to
cure the defects in his declaration and meet his burden to “demonstrate” the elements of
§ 1326(d). Specifically, Defendant has failed to provide credible evidence that his waiver
of appeal rights was invalid, and therefore Defendant cannot show exhaustion of
administrative remedies or deprivation of judicial review.
In the § 1326(d) context, “[t]he government bears the burden of proving valid
waiver . . . 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 (internal quotation marks omitted) (quoting United States v. De La Mora-Cobian, 18
F.4th 1141, 1148 (9th Cir. 2021)). Courts must “indulge every reasonable presumption
against waiver, and . . . not presume acquiescence in the loss of fundamental rights.”
Valdivias-Soto, 112 F.4th at 723, 725. Defendant acknowledges, however, that before the
Government must meet its burden, Defendant must sufficiently allege facts that would
indicate his waiver was invalid. (Doc. 65 at 14:3–15:13; Doc. 50 at 2 (“[A]n unrepresented
individual in removal proceedings, . . . needs only to contest the validity of the prior
removal with alleged facts when collaterally attacking the prior removal under §
1326(d).”).)6
6 After the Court set the evidentiary hearing, the Government filed a Notice explaining its
view of the burden of proof in determining a waiver’s validity. (See Doc. 56.) The
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 8 of 10

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Court finds Defendant’s allegations and subsequent testimony insufficient to
invoke the Government’s burden to prove a valid waiver by clear and convincing evidence.
See United States v. Lazarevich, 147 F.3d 1061, 1065 (9th Cir. 1998) (affirming denial of
motion to dismiss indictment because defendant failed to meet his “burden of
demonstrating a factual basis for his motion”). Defendant relies on: (1) the statement in his
declaration that he “do[es] not remember the immigration court or anyone else providing
me with an explanation about my right to appeal the removal order,” (Doc. 22-4 ¶ 16); and
(2) the absence of evidence in the A-file that the IJ advised Defendant of his right to appeal.
(Doc. 65 at 15:13–16:8 (“[W]hat we have there is Mr. Blanco-Melgoza saying, ‘I don’t
remember anyone explaining those rights to me.’”). At the evidentiary hearing, Defendant
testified that he did not recall the IJ explaining his appeal rights. (Id. at 21:7–9 (“Q: After
the judge made a decision in your case, do you recall him explaining your appeal rights to
you? A: No.”).)
On this record, Defendant has failed to raise any credible, affirmative allegations
that the IJ failed to advise him of his appeal rights. As discussed above, Defendant’s
memory of his removal proceedings 25 years ago is not reliable, and the most Defendant
can say is that he cannot remember whether he was advised of his appeal rights or not. See
Lazarevich, 147 F.3d at 1065 (“Finding the evidence in equipoise, the district judge [is]
required to rule against [the defendant].”). The Court is mindful that some ambiguities in
Government cited the Magistrate Judge’s August 13, 2025 order setting the initial oral
argument. (Id. (citing Doc. 32 at 5–6).) In that order, the Magistrate Judge cited United
States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th Cir. 2012), which describes a burden-
shifting framework where the defendant must rebut official immigration documents that
facially indicate a valid waiver with affirmative evidence tending to prove the waiver was
invalid. (Doc. 32 at 5–6; Doc. 41 at 3–4.) If the defendant meets that burden, only then
must the Government produce additional evidence to establish the waiver’s validity. See
Reyes-Bonilla, 671 F.3d at 1043 (citing United States v. Galicia-Gonzalez, 997 F.2d 602,
604 (9th Cir. 1993)). However, that approach applies only where the noncitizen: (1) was
represented by counsel at his removal proceeding; and (2) does not allege facts
undermining the validity of the waiver. See United States v. Gomez, 757 F.3d 885, 894–95
(9th Cir. 2014).
At the evidentiary hearing, the Government argued Defendant had not met his initial
burden of challenging the waiver’s validity. (Doc. 65 at 10:7–18 (“I don’t know if we’re
even quite there yet, . . . because [the waiver] would have to be challenged in some way. I
don’t think the declaration on its face is a sufficient challenge because it says that he doesn’t
know if the [IJ] did X, Y and Z. It’s not ‘the [IJ] did not give me my rights to appeal; . . .
.’ It’s ‘I can’t remember.’ So I don’t know if we even get there.”).)
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 9 of 10

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant’s testimony may be attributable to the questions asked, including a lack of
clarifying follow-up questions, and language differences, i.e., the meaning of some
questions being “lost in translation.” Nevertheless, in reaching its conclusion, the Court
has assessed Defendant’s demeanor and credibility in the full context of the proceedings.
In sum, Defendant has not properly alleged, nor provided a factual basis upon which
the Court can conclude, that the IJ did not advise him of his appeal rights, and therefore,
Defendant has not “demonstrate[d]” that he was improperly deprived of judicial review or
that he is excused from his failure to exhaust administrative remedies.
Accordingly,
IT IS ORDERED:
1. The R&R (Doc. 41) is adopted in part. For the reasons stated in this Order,
the Court accepts and adopts the Magistrate Judge’s recommendation that the Court deny
Defendant’s Motion to Dismiss.
2. Defendant’s Objections to the R&R (Doc. 46) are overruled.
3. Defendant’s Motion to Dismiss the Indictment Under 8 U.S.C. § 1326(d)
(Doc. 22) is denied.
4. As set forth in the Court’s February 4, 2026 Order (Doc. 55), the current trial
date is April 21, 2026, and the current change of plea deadline is April 3, 2026.
Dated this 26th day of March, 2026.
Case 4:24-cr-07135-JGZ-MSA Document 66 Filed 03/27/26 Page 10 of 10