United States v. Antonio Villegas-Serrano ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50094
Plaintiff-Appellee, D.C. No.
8:18-cr-00171-JVS-1
v.
ANTONIO VILLEGAS-SERRANO, AKA MEMORANDUM*
Antonio Villegas, AKA Juan Villegas-
Cerrano,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted October 22, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
Judge.
Defendant-Appellant Antonio Villegas-Serrano (Villegas) was indicted
*
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 Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
under 8 U.S.C. § 1326(a) for being an alien unlawfully found in the United States.
He appeals the district court’s order denying his motion to dismiss his indictment,
arguing that his underlying immigration removal proceeding was “fundamentally
unfair” because the Immigration Judge (IJ) undermined his right to counsel, failed
to explain voluntary departure, and relied on false evidence. Additionally, he
argues for the first time on appeal that the immigration court lacked jurisdiction
because his Notice to Appear (NTA) was deficient.
To collaterally attack an underlying removal order for violation of due
process, an alien must demonstrate that “(1) [he] exhausted any administrative
remedies that may have been available to seek relief against the order; (2) the
deportation proceedings at which the order was issued improperly deprived [him]
of the opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair.” 8 U.S.C. § 1326(d); United States v. Gomez, 757 F.3d 885,
892 (9th Cir. 2014). An “order is ‘fundamentally unfair’ if: (1) [a defendant’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. Melendez-
Castro, 671 F.3d 950, 953 (9th Cir. 2012) (quoting United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)).
We “review[] de novo a ‘denial of a motion to dismiss an indictment under 8
U.S.C. § 1326 when the motion is based on an alleged deprivation of due process
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in the underlying removal proceedings.’” United States v. Garcia-Gonzalez, 791
F.3d 1175, 1179 (9th Cir. 2015) (quoting United States v. Valdavinos-Torres, 704
F.3d 679, 685 (9th Cir. 2012)). We review the district court’s factual findings for
clear error. Id. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Right to Counsel. Due process provides a right to counsel, and a
waiver of that right must be “knowing and voluntary.” United States v. Cisneros-
Rodriguez, 813 F.3d 748, 756 (9th Cir. 2015). Villegas was advised of his right to
counsel and provided with a list of no-cost attorneys more than two months before
his hearing. At his hearing, none of the IJ’s statements regarding the cost of
counsel or “notarios” indicated that obtaining counsel would be “futile.” See id. at
757. Finally, the record does not indicate that either the IJ’s questions or Villegas’s
responses regarding waiver of the right to counsel were ambiguous. Therefore, we
conclude that Villegas’s waiver was knowing and voluntary, and the IJ did not
violate Villegas’s due process right to counsel.
2. Voluntary Departure. We also conclude that the IJ did not violate due
process in rejecting Villegas’s express request for voluntary departure. The IJ did
not fail to inform Villegas of his eligibility for discretionary relief—Villegas’s
request for voluntary departure proves that he was aware of this form of relief. And
the IJ considered factors relevant to Villegas’s voluntary departure request,
including his family, criminal, and immigration history. See Hussain v. Rosen, 985
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F.3d 634, 642–43 (9th Cir. 2021). Moreover, there is no indication that Villegas
was unfairly prejudiced by the agency’s decision because he has not shown
“plausible, rather than merely possible or conceivable” grounds on which the
agency would have granted him relief. United States v. Valdez-Novoa, 780 F.3d
906, 919 (9th Cir. 2015). He did not submit any evidence of additional positive
factors that the IJ could have concluded outweighed the negative factors in his
history—for example his employment history or testimony from his spouse—had
the IJ further developed the record. See id. at 921.
3. False Evidence. Villegas argues the government’s misstatement that
he was sentenced to 300 days for corporal injury on a spouse or cohabitant
rendered his removal proceedings fundamentally unfair. The district court did not
err in rejecting this argument. Looking at Villegas’s immigration history, lack of
strong family ties in the United States, and recent conviction for a violent crime
against his spouse, it is not “plausible” that the IJ would have granted discretionary
relief even if he had known Villegas had been sentenced to 163 days instead of 300
days. Id.
4. Jurisdiction. An NTA that fails to include the location of the court
where it will be filed “does not deprive the immigration court of jurisdiction,” and
a defect in the NTA may be remedied by “providing the alien and the government
with the complete notice at a later time.” Aguilar Fermin v. Barr, 958 F.3d 887,
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895 (9th Cir. 2020), cert. denied 141 S. Ct. 664 (2020). Because jurisdiction vested
with the immigration court when Villegas’s NTA was filed and any defect in the
initial NTA was remedied by subsequent notice,1 we reject his jurisdictional
argument.
AFFIRMED.
1
We grant the government’s pending motion for judicial notice (Dkt. No 31).
That a Notice of Hearing was issued while Villegas was in ICE custody that included
the necessary hearing information is not “subject to reasonable dispute” and “can be
accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b); see also Smith v. Los Angeles Unified Sch.
Dist., 830 F.3d 843, 851 n.10 (9th Cir. 2016) (noting “courts routinely take judicial
notice of . . . ‘records and reports of administrative bodies’” (quoting Interstate Nat.
Gas Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953)). There is also no
reasonable dispute that Villegas received proper notice of his hearing where he
remained in ICE custody from the date he was served with the initial NTA through
the date of his later scheduled hearing with the IJ, at which he appeared. Indeed,
Villegas does not challenge on appeal whether he ultimately received notice of his
hearing’s location. Thus, even if his initial NTA failed to include the location of the
court where it would be filed, that omission was remedied when Villegas was
“provided with that notice [of the hearing location] and appeared for h[is] scheduled
hearings.” Aguilar Fermin, 958 F.3d at 895.
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