United States v. Ulloa-Mejia , 518 F. App'x 40 ( 2013 )

12-2527-cr
United States v. Ulloa-Mejia
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 6th day of May, two thousand thirteen.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 J. CLIFFORD WALLACE,*
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 12-2527-cr
18
19 FREDIS HONAN ULLOA-MEJIA,
20
21 Defendant-Appellant.
22
23
24 FOR APPELLANT: Lisa A. Peebles, Federal Public Defender,
25 Office of the Federal Public Defender for
26 the Districts of Northern New York and
27 Vermont, Syracuse, NY.
28
29 FOR APPELLEE: Paul D. Silver, Daniel C. Gardner,
30 Assistant United States Attorneys, for
*
Judge J. Clifford Wallace of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
1 Richard S. Hartunian, United States
2 Attorney for the Northern District of New
3 York, Syracuse, NY.
4
5 Appeal from the United States District Court for the
6 Northern District of New York (Mordue, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the United States District
10 Court for the Northern District of New York is AFFIRMED.
11 Defendant-Appellant Fredis Honan Ulloa-Mejia appeals
12 from a judgment pursuant to an April 27, 2012 Memorandum
13 Decision and Order by the United States District Court for
14 the Northern District of New York (Mordue, J.) denying
15 Defendant’s motion to dismiss the one-count indictment
16 charging Defendant with illegally re-entering the United
17 States after being removed, in violation of 8 U.S.C. §
18 1326(a). Defendant argued that the prior in absentia
19 removal order could not be used as a predicate for
20 establishing a violation of 8 U.S.C. § 1326(a) because it
21 was issued, he asserted, in violation of his due process
22 rights. We assume the parties’ familiarity with the
23 underlying facts, the procedural history, and the issues
24 presented for review.
25 In 2005, at age fifteen, Defendant traveled from
26 Honduras to the United States. He was apprehended in Texas
2
1 and issued a notice to appear on an unspecified future date.
2 Defendant was directed to update immigration officials of
3 any change in his address to ensure that Defendant received
4 notice of the date for his hearing. There is no evidence
5 that Defendant informed immigration officials that he
6 relocated to North Carolina to live with his mother.
7 Defendant was ordered removed in absentia in October 2005.
8 In February 2012, after he was denied refugee status in
9 Canada, Defendant again entered the United States illegally.
10 He was immediately apprehended and charged with violating 8
11 U.S.C. § 1326(a). Defendant pled guilty but reserved the
12 right to appeal the district court’s order denying his
13 motion to dismiss the indictment.
14 A defendant may collaterally attack the validity of a
15 deportation order upon which a violation of 8 U.S.C. §
16 1326(a) is based. 8 U.S.C. § 1326(d); United States v.
17 Calderon, 391 F.3d 370, 374 (2d Cir. 2004). “To do so,
18 however, an alien must ‘demonstrate [ ] that (1) [he]
19 exhausted any administrative remedies that may have been
20 available to seek relief against the order; (2) the
21 deportation proceedings at which the order was issued
22 improperly deprived [him] of the opportunity for judicial
3
1 review; and (3) the entry of the order was fundamentally
2 unfair.’” Id. (quoting 8 U.S.C. § 1326(d)) (alterations in
3 original).
4 We agree with the district court that Defendant failed
5 to satisfy any of the three requirements of 8 U.S.C. §
6 1326(d). Defendant principally argues that the 2005 removal
7 order violated due process because Defendant was fifteen
8 years old at the time he received the notice to appear and
9 neither he nor his parents were notified of the scheduled
10 time and place for Defendant’s hearing. However,
11 immigration officials need only inform the parents of a
12 “minor,” defined in the immigration context as an individual
13 “under the age of 14.” 8 C.F.R. § 236.2.
14 In addition, Defendant failed to provide immigration
15 officials with his new address after he relocated to North
16 Carolina, despite being explicitly informed that he was
17 required to keep his contact information current. It is not
18 fundamentally unfair to enter an order of removal in
19 absentia against an individual who does not receive notice
20 by virtue of his failure to provide immigration officials
21 with a current address. See, e.g., United States v.
22 Hinojosa-Perez, 206 F.3d 832, 837 (9th Cir. 2000).
4
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
5