United States v. Valdivia-Flores, 2017 WL 6044232 (9th Cir. Dec. 7, 2017): Because of Washington’s aiding and abetting statute, Washington drug-possession crime is not categorically an aggravated felony
Say what you will about Jose Valdivia-Flores — the guy loves this country. He came here illegally in 1995, pleaded guilty to a Washington drug-trafficking offense, was removed, returned illegally the next year, pleaded guilty to another crime, was removed to Mexico again in 2009, remained there “for a few days,” returned illegally again, pleaded guilty to illegal entry, was removed to Mexico again, and attempted to enter illegally once more using a false identity — whereupon he was arrested and charged with attempted illegal reentry and fraudulent use of an immigration document. At that point, he collaterally attacked the validity of his 2009 removal, arguing that it rested on the erroneous finding that his Washington drug-trafficking offense qualified as an aggravated felony pursuant to federal immigration law.
His first hurdle under 8 U.S.C. 1326(d) was to show that the denial of his right to appeal the 2009 removal violated his right to due process, despite the fact that at the time he had signed a form waiving that right. He cleared this hurdle by showing that his waiver was not considered and intelligent, because the form’s list of check-box options did not include a box for: “I want to contest the classification of my drug-trafficking conviction as an aggravated felony.” And it didn’t help that he was unrepresented and never appeared before an immigration judge who might have explained this option to him.