United States v. Jose Ochoa , 665 F. App'x 635 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10354
Plaintiff-Appellee, D.C. No. 3:14-cr-00525-RS-1
v.
MEMORANDUM*
JOSE OCHOA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted August 9, 2016
San Francisco, California
Before: GRABER and McKEOWN, Circuit Judges, and LYNN,** Chief District
Judge.
____________________
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Barbara M. G. Lynn, United States Chief District Judge
for the Northern District of Texas, sitting by designation.
Defendant Jose Ochoa was convicted of illegal reentry into the United States
under 8 U.S.C. § 1326. Prior to trial, he moved to dismiss the indictment,
challenging his 2001 removal, which was based on a conviction for conspiracy to
export defense articles without a license, in violation of 22 U.S.C. § 2778(b)(2).
Defendant contends that his removal infringed his due process rights, urging that
his conviction for conspiracy to violate 22 U.S.C. § 2778(b)(2) cannot serve as a
basis for removal.
A defendant charged with illegal entry under 8 U.S.C. § 1326 can bring a
due process collateral attack on the underlying deportation order. United States v.
Aguilera-Rios, 769 F.3d 626, 629-30 (9th Cir. 2014). Among other things, a
defendant asserting such an attack must prove that “the deportation proceedings at
which the order was issued improperly deprived [him] of the opportunity for
judicial review.” 8 U.S.C. § 1326(d)(2); United States v. Gonzalez-Villalobos, 724
F.3d 1125, 1132 (9th Cir. 2013). Thus, “where the defendant has failed to identify
any obstacle that prevented him from obtaining judicial review of a deportation
order, he is not entitled to such review as part of a collateral attack under 8 U.S.C.
§ 1326(d).” Gonzalez-Villalobos, 724 F.3d at 1132.
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Although the government did not argue that Defendant failed to demonstrate
that he was improperly deprived of the opportunity for judicial review of his
deportation order, we may exercise our discretion to reach that issue, as a question
of law. See Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012);
Vasquez v. Holder, 602 F.3d 1003, 1010 n.6 (9th Cir. 2010). We do so here,
noting the parties had a chance to argue the issue orally.
Defendant has not satisfied his burden of showing he was deprived of an
opportunity for judicial review. When a non-citizen is erroneously advised at a
removal proceeding that he or she is not eligible for relief, and therefore does not
seek it, the non-citizen is deprived of an opportunity to develop the issue and thus
is denied an opportunity for judicial review. See, e.g., United States v.
Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006) (noting that the defendant was
denied an opportunity for judicial review when he was erroneously advised he was
ineligible for discretionary relief and thus did not seek it); United States v.
Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (same). Here, in contrast, the
Notice to Appear in the underlying removal proceeding charged directly that the
crime that was the basis for removal was an “aggravated felony” and a “firearms
offense,” and these issues were directly litigated in Defendant’s removal
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proceeding, but Defendant did not seek judicial review. He has “failed to identify
any obstacle that prevented him from obtaining judicial review.”
Gonzalez-Villalobos, 724 F.3d at 1132. Therefore, collateral attack on 8 U.S.C.
§ 1326(d) is precluded.
We need not and do not reach the question whether Defendant’s conviction
under 18 U.S.C. § 371, for conspiracy to export defense articles without a license,
in violation of 22 U.S.C. § 2778(b)(2), was an aggravated felony conviction or a
firearms offense.
AFFIRMED.
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