United States v. Jose Magana-Lemus ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50187
Plaintiff-Appellee, D.C. No.
8:18-cr-00129-CJC-1
v.
JOSE FRANCISCO MAGANA-LEMUS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted August 11, 2020
Pasadena, California
Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and M. WATSON,**
District Judge.
Jose Francisco Magana-Lemus appeals his conviction for illegal reentry
under 8 U.S.C. § 1326(a), (b)(1). Because the facts are known to the parties, we
repeat them only as necessary to explain our decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
I
First, Magana-Lemus’s collateral attack on his 2005 order of removal fails
because the validity of such order does not depend on the validity of his previous
order of removal from 1999. In 2005, following full removal proceedings,
Magana-Lemus was ordered removed explicitly on the basis of the independent
charges alleged in the Notice to Appear. The immigration judge’s mere citation to
Immigration and Nationality Act § 241(a)(5)—in reference to Magana-Lemus’s
eligibility for relief from removal—did not “convert” the proceedings into a
reinstatement of the prior order of removal. Further, any alleged due process
violations from Magana-Lemus’s 1999 removal proceedings did not “infect” the
2005 removal, because Magana-Lemus would have been removable on the basis of
at least one of the charges in 2005 even if he had retained his status as a legal
permanent resident. See, e.g., Hernandez-Almanza v. U.S. Dep’t of Justice, 547
F.2d 100, 102 (9th Cir. 1976).
II
Second, even if the validity of Magana-Lemus’s 2005 removal did depend
on the validity of his 1999 removal, Magana-Lemus’s collateral attack would still
fail. He has not shown that he suffered prejudice as a result of the immigration
judge’s failure to inform him of his opportunity to seek discretionary relief in
1999. See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir.
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2018). Magana-Lemus has not shown that he plausibly would have received such
relief if he had applied for it. See id. Although he has identified some positive
factors in his favor, Magana-Lemus has failed to put forth evidence of “unusual or
outstanding equities” that could plausibly have outweighed his substantial criminal
history. See id. at 1069–70; United States v. Gonzalez-Valerio, 342 F.3d 1051,
1057 (9th Cir. 2003).
AFFIRMED.
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