United States v. Agustin Amezcua , 431 F. App'x 598 ( 2011 )


Menu:
  •                                                                               FILED
    MAY 06 2011
    NOT FOR PUBLICATION                            MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-50323
    Plaintiff - Appellee,              D.C. No. 2:09-cr-00569-DSF-1
    v.
    MEMORANDUM*
    AGUSTIN GUZMAN AMEZCUA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Dale S. Fischer, District Judge, Presiding
    Submitted May 3, 2011**
    Pasadena, California
    Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
    Agustin Guzman Amezcua appeals his conviction and the district court’s
    denial of his motion to dismiss the indictment. We affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    To sustain “a collateral challenge to the use of a deportation as an element of
    a criminal offense,” United States v. Mendoza-Lopez, 
    481 U.S. 828
    , 839 (1987), a
    criminal defendant must demonstrate that (1) he exhausted any administrative
    remedies that may have been available to seek relief against the order, (2) the prior
    immigration proceedings improperly deprived him of an opportunity for judicial
    review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C.
    § 1326(d). Amezcua failed to do so.
    Most importantly, at the time of the 2001 removal proceedings, Amezcua
    was ineligible for naturalization because of his 2000 California conviction for an
    aggravated felony, so he was not prejudiced by the immigration judge’s actions
    and there was nothing fundamentally unfair about the entry of the removal order.
    His conviction statutorily barred him from establishing good moral character. 8
    U.S.C. § 1101(f)(8). That his record had been clean for the five years prior to his
    application was not enough to make eligible for naturalization at the time of the
    removal hearing. An alien must continue to maintain good moral character from
    the date of his application until he takes the oath of citizenship. United States v.
    Dang, 488 F.3 1135, 1139 (9th Cir. 2007); 8 C.F.R. § 316.10(a)(1).
    AFFIRMED.
    2
    

Document Info

Docket Number: 10-50323

Citation Numbers: 431 F. App'x 598

Judges: Clifton, Silverman, Tallman

Filed Date: 5/6/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023