United States v. Ivan Contreras-Lopez , 468 F. App'x 670 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 08 2012
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. 10-50238
Plaintiff - Appellee, D.C. No. 3:09-cr-03590-BTM-1
v.
MEMORANDUM *
IVAN CONTRERAS-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted May 3, 2011
Pasadena, California
Before: GOODWIN and WARDLAW, Circuit Judges, and COGAN, District
Judge.**
Following a conditional guilty plea, Ivan Contreras-Lopez (“Contreras”)
appeals his conviction for being a deported alien found in the United States without
permission in violation of 8 U.S.C. § 1326. Contreras contends that the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Brian M. Cogan, U.S. District Judge for the Eastern
District of New York, sitting by designation.
should have granted his motion to dismiss the indictment because it was based on a
prior removal order that was entered in violation of his due process right to counsel,
inherently prejudicing his ability to obtain immigration relief. We have jurisdiction
under 28 U.S.C. § 1291 and review de novo a claim that a defect in a prior removal
proceeding precludes reliance on the final removal order in a subsequent § 1326
proceeding. United States v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010).
To successfully bring a collateral attack against a prior removal order, an alien
must demonstrate 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). “Under our case law, a predicate removal order satisfies the condition of
being ‘fundamentally unfair’ for purposes of § 1326(d)(3) when the deportation
proceeding violated the alien’s due process rights and the alien suffered prejudice as
a result.” United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010) (citing
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003)).
As the government concedes, the district court correctly found that Contreras’s
waiver of his right to counsel was invalid and that his removal proceedings therefore
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violated his right to due process. See United States v. Ahumada-Aguilar, 295 F.3d
943, 947–50 (9th Cir. 2002); Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008).
Nonetheless, Contreras’s collateral attack fails to satisfy § 1326(d)(3) because
he has not established that he was prejudiced as a result of his invalid waiver of the
right to counsel. See Ramos, 623 F.3d at 683–84. In a separate opinion we held that
prejudice could not be presumed based on such a violation of an alien’s right to
counsel when an alien has been convicted of an aggravated felony. United States v.
Reyes-Bonilla, No. 10-50361, __ F.3d __, slip op. at 1173 (9th Cir. Feb. 6, 2012)
(“We therefore hold that in order to mount a successful collateral attack on a prior
removal order under § 1326(d), an alien who was convicted of an aggravated felony
and was not properly advised of his right to counsel or did not waive this right must
show that he was actually prejudiced by this due process violation.”).
While we left open the possibility that prejudice could be presumed where an
alien was affirmatively prevented from exercising his right to representation, id., this
is not such a case. Contreras has made no argument that he had plausible grounds for
relief at the time of his removal proceedings. Ramos, 623 F.3d at 684 (noting that to
establish prejudice a defendant need establish “only that there were ‘plausible grounds
for relief,’” quoting United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir.
2003)). And because Contreras was convicted of an aggravated felony, he is ineligible
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for any rebuttable presumption of prejudice. Reyes-Bonilla, No. 10-50361, slip op.
at 1173. Accordingly, the district court correctly denied his motion to dismiss the
indictment.
AFFIRMED.
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