## Facts

- Uvaldo Ramirez-Cortinas, a Mexican citizen, illegally entered the United States multiple times and accrued Texas convictions including felony hit-and-run and felony bail jumping.
- After serving a seven-year sentence for bail jumping, the Department of Homeland Security initiated removal proceedings, charging removability based on unlawful presence and a crime involving moral turpitude.
- Over several immigration hearings, Ramirez admitted the allegations, sought “some type of relief,” received an asylum application, and obtained continuances to pursue asylum.
- At the final hearing (March 2013), he stated he lacked supporting documents, considered withdrawing asylum, and requested voluntary departure.
- The Immigration Judge stated that Ramirez’s bail-jumping conviction was an aggravated felony, making him ineligible for voluntary departure; the judge denied a further continuance and ordered removal.
- In 2018, Ramirez was indicted in federal court for illegal reentry under 8 U.S.C. § 1326.
- The district court allowed a collateral attack on the 2013 removal order under § 1326(d) and dismissed the indictment, reasoning the aggravated-felony classification was erroneous and affected consideration of asylum/withholding.
- The United States appealed.

## Issues

1. Whether Ramirez satisfied 8 U.S.C. § 1326(d) to collaterally attack his prior removal order and obtain dismissal of the illegal-reentry indictment.
2. Whether Ramirez showed “actual prejudice” from the alleged defect in the removal proceeding—i.e., that the asserted error likely changed the outcome by resulting in a realistic chance of asylum or withholding of removal.

## Decision

- The Fifth Circuit reversed the dismissal of the indictment and remanded.
- The court held the district court applied an overly lenient “actual prejudice” standard under § 1326(d).
- Assuming (without deciding) that the immigration courts erred in treating bail jumping as an aggravated felony, the court held Ramirez still failed to show actual prejudice because the record did not support a likelihood that he would have obtained asylum or withholding of removal.

## Legal Principles

- A defendant charged with illegal reentry may collaterally attack a prior removal order only by satisfying all elements of 8 U.S.C. § 1326(d): (1) exhaustion of administrative remedies, (2) deprivation of judicial review, and (3) fundamental unfairness.
- “Fundamental unfairness” requires a due process violation plus “actual prejudice.”
- “Actual prejudice” requires more than showing the defendant could have applied for relief or had a colorable claim; the defendant must show a reasonable likelihood that relief would have been granted and the outcome would have differed.
- Asylum requires evidence supporting a well-founded fear of persecution on account of a protected ground; withholding requires an even higher showing (a clear probability of such persecution).

## Conclusion

The Fifth Circuit reinstated the illegal-reentry prosecution because, even assuming an error in the aggravated-felony characterization during removal proceedings, the defendant did not demonstrate actual prejudice under § 1326(d) by showing a likely chance of asylum or withholding that would have avoided removal.


United States v. Ramirez-Cortinas, 945 F.3d 286 (5th Cir. 2019)