United States v. Marbin Reyes-Ruiz ( 2018 )

FILED
NOT FOR PUBLICATION
AUG 28 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50494
Plaintiff-Appellee, D.C. No.
3:16-cr-00883-MMA-1
v.
MARBIN RENE REYES-RUIZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted August 6, 2018**
Pasadena, California
Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.
Marbin Rene Reyes-Ruiz appeals his conviction for attempted illegal reentry
in violation of 8 U.S.C. § 1326 through a collateral challenge to the validity of a
prior removal order. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
“A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has
the right to bring a collateral attack challenging the validity of his underlying
removal order, because that order serves as a predicate element of his conviction.”
United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017) (per curiam). A
defendant successfully brings a collateral attack when he demonstrates that: (1) he
has “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 the alien of the opportunity for judicial review;” and
(3) “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d).
In this circuit, if a defendant “was not convicted of an offense that made him
removable under the [Immigration and Nationality Act] to begin with, he is
excused from proving the first two requirements.” Ochoa, 861 F.3d at 1015. “An
order is ‘fundamentally unfair’ under (d)(3) if ‘(1) [a defendant’s] due process
rights were violated by defects in [the] underlying deportation proceeding, and (2)
[the defendant] suffered prejudice as a result of the defects.’” Id. at 1019 (Graber,
J., concurring) (alterations in original) (quoting United States v. Garcia-Martinez,
228 F.3d 956, 960 (9th Cir. 2000)).
In this case, even if Reyes-Ruiz’s prior removal order was invalid, he does
not demonstrate that he suffered prejudice as a result of that potential defect.
2
Although we may presume prejudice in some cases where, but for the
government’s misclassification of an underlying felony, the defendant was not
otherwise removable, see Ochoa, 861 F.3d at 1015 (noting that fundamental
unfairness exists where a lawful permanent resident defendant’s prior conviction
was improperly categorized as a crime of violence), that presumption is not
applicable here because Reyes-Ruiz did not have any lawful status in the United
States at the time he was first removed. Notably, Reyes-Ruiz does not argue that
he would have been entitled to relief from removal if he had received a hearing
before an immigration judge. Because prejudice cannot be presumed, and has not
been shown, Reyes-Ruiz has not established that his original removal was
“fundamentally unfair.”
AFFIRMED.
3