United States v. Jose Valdez , 440 F. App'x 559 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50346
Plaintiff - Appellee, D.C. No. 3:09-cr-03180-DMS
v.
MEMORANDUM *
JOSE BERNAL VALDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Jose Bernal Valdez appeals from the district court’s order denying his
motion to dismiss his indictment charging him with being an alien found in the
United States after deportation, in violation of 8 U.S.C. § 1326. We have
jurisdiction pursuant to 28 U.S.C. § 1291. 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).
Valdez contends that the district court erred in denying his motion to dismiss
the indictment because the underlying removal hearing violated his due process
rights. Specifically, Valdez argues that the immigration judge (“IJ”) violated his
rights by failing to inform him that he might be eligible for relief from removal
under sections 245(a) and 212(c) of the Immigration and Nationality Act.
The district court properly denied the motion to dismiss the indictment
because Valdez has not shown that his due process rights were violated by defects
in the underlying immigration proceeding, and because there was no prejudice as a
result of any alleged defects. See United States v. Ubaldo-Figueroa, 364 F.3d
1042, 1048 (9th Cir. 2003); see also United States v. Moriel-Luna, 585 F.3d 1191,
1197 (9th Cir. 2009) (“We do not require IJs to speculate about the possibility of
anticipated changes of circumstances and advise aliens of facts not suggested in the
record.”).
AFFIRMED.
2 10-50346
3 10-50346