United States v. Juan Brisuela Aldana ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50036
Plaintiff-Appellee, D.C. No. 2:18-cr-00460-PA-1
v.
MEMORANDUM*
JUAN JAVIER BRISUELA ALDANA,
AKA Juan Javier Brizuela, AKA Juan
Brizuela Aldana,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 7, 2022
Pasadena, California
Before: LIPEZ,** TALLMAN, and LEE, Circuit Judges.
Juan Javier Brisuela Aldana appeals the dismissal of his collateral attack
upon his conviction for illegal reentry. 8 U.S.C. § 1326. 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 Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Brisuela Aldana argues that the district court erred in denying his motion to
dismiss the indictment under § 1326(d) because his due process rights were violated
in the underlying immigration proceedings in which he was ordered removed in
absentia. “We review de novo the denial of a motion to dismiss an indictment under
8 U.S.C. § 1326 when the motion is based on alleged due process defects in an
underlying deportation proceeding.” United States v. Vasquez-Gonzalez, 901 F.3d
1060, 1065 (9th Cir. 2018) (quoting United States v. Alvarado-Pineda, 774 F.3d
1198, 1201 (9th Cir. 2014)).
To collaterally attack the validity of a prior removal order in this context, the
noncitizen must show that: “(1) the alien 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); see United States v. Palomar-Santiago, 141 S. Ct. 1615,
1622 (2021).
Brisuela Aldana failed to show that he has exhausted administrative remedies.
An order of removal in absentia may be rescinded “upon a motion to reopen filed at
any time if the alien demonstrates that the alien did not receive notice in accordance
with paragraph (1) or (2) of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii)
(emphasis added). Brisuela Aldana demonstrated his ability to seek such relief
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when, in 2010, he filed a motion to reopen on the grounds contemplated in §
1229a(b)(5)(C)(ii), but then withdrew the motion. Where a person voluntarily
abandons a petition for review, he fails to exhaust an available remedy. See Noriega-
Lopez v. Ashcroft, 335 F.3d 874, 878 (9th Cir. 2003).
Therefore, Brisuela Aldana does not satisfy the first requirement of § 1326(d)
that he exhausted administrative remedies, but he is free to file a motion to reopen
“at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii).
AFFIRMED.
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