United States v. Valentin Fuentes Carreon

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50322 Plaintiff-Appellee, D.C. No. 8:18-cr-00002-DOC-1 v. VALENTIN FUENTES CARREON, AKA MEMORANDUM* Valentin Carreon Fuentes, AKA Valentin Fuentes Carrion, AKA Valentin Fuentes- Carreon, AKA Valentin Fuentescarreon, AKA Octavio Ortiz, AKA Martin Oscar Perez, AKA Soriano Alberto Rojas, Defendant-Appellant. Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding Submitted August 13, 2019** Pasadena, California Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Defendant-Appellant Valentin Fuentes Carreon appeals the district court’s denial of his motion to dismiss the indictment and appeals his conviction and 18- month sentence for being an alien in the United States after deportation in violation of 8 U.S.C. § 1326(a). Fuentes Carreon collaterally attacks his underlying removal order on due process grounds. We have jurisdiction under 28 U.S.C. § 1291. “We review a collateral attack to a deportation order de novo.” United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc). We affirm.1 Section 1326(d) provides that “an alien may not challenge the validity of the deportation order described in subsection (a)(1) . . . unless the alien demonstrates that . . . the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3); see also United States v. Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2015) (appealing denial of motion to dismiss a § 1326 indictment on the basis that the underlying removal order was invalid). The fundamentally unfair prong is a two- part inquiry requiring that “(1) [the alien’s] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013) (alteration in original) (quoting United States v. Ubaldo-Figueroa, 364 1 The facts are familiar to the parties and are restated here only as necessary to resolve the issues on appeal. 2 F.3d 1042, 1048 (9th Cir. 2004)). Due process requires an immigration judge (IJ) to “inform an alien of his ‘apparent eligibility’ for forms of relief such as voluntary departure.” Valdez-Novoa, 780 F.3d at 913 (citing 8 C.F.R. § 1240.11(a)(2)). Eligibility for relief is “apparent” when “the record, fairly reviewed by an individual who is intimately familiar with the immigration laws[,] . . . raises a reasonable possibility that the petitioner may be eligible for relief.” Rojas- Pedroza, 716 F.3d at 1263 (alteration in original) (quoting Lopez-Velasquez, 629 F.3d at 896). The “inquiry ‘focuse[s] on whether the factual circumstances ...

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