United States v. Francisco Lopez-Reyes

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10344 Plaintiff-Appellee, D.C. No. 2:19-cr-00328-DWL-1 v. MEMORANDUM* FRANCISCO LOPEZ-REYES, a.k.a. Francisco G. Lopez, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding Argued and Submitted November 17, 2020 Phoenix, Arizona Before: TALLMAN, BYBEE, and BADE, Circuit Judges. Francisco Lopez-Reyes appeals his conviction following his conditional guilty plea to one count of illegal reentry in violation of 8 U.S.C. § 1326(a). Specifically, Lopez-Reyes collaterally challenges, under § 1326(d), the deportation order that served as a predicate for his illegal reentry conviction. He argues that the order was fundamentally unfair because he was not properly advised of his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Fifth Amendment right to counsel and therefore did not validly waive that right, which deprived him of the opportunity to apply for a U visa based on his status as the victim of a stabbing that occurred when he was a teenager. Because the parties are familiar with the facts, we do not recite them except as necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review de novo a district court’s denial of a motion to dismiss an indictment under § 1326(d). United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015). Factual findings are reviewed for clear error. Id. In order to prove that his 2011 administrative removal proceedings were “fundamentally unfair,” Lopez-Reyes must show that: (1) his “due process rights were violated by defects in [his] underlying deportation proceeding,” and (2) “[he] suffered prejudice as a result of the defects.” Id. at 756 (citation omitted). In evaluating his claim, the district court elected not to decide whether Lopez-Reyes’s due process rights were violated, instead finding that Lopez-Reyes could not show that his removal was fundamentally unfair because he failed to demonstrate prejudice resulting from the alleged violation. We agree. Although Lopez-Reyes “does not have to show that he actually would have been granted relief” from removal to establish prejudice, he still must “show that he had a ‘plausible’ ground for relief from deportation.” United States v. Ubaldo- Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (quoting United States v. Arrieta, 2 224 F.3d 1076, 1079 (9th Cir. 2000)). Plausibility requires a showing “that relief was more than ‘possible,’” but not “that it was ‘probable.’” Cisneros-Rodriguez, 813 F.3d at 761. Here, the district court correctly found that Lopez-Reyes did not show that it was plausible that he would have received a U visa. A U visa application would have required a certification from the Phoenix Police Department (“PPD”) attesting that Lopez-Reyes was a victim of a qualifying crime, possessed information about the crime, and “[had] been, is being, or [was] likely to be helpful to ...

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