United States v. Jorge Zamora-Gonzalez ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50422
Plaintiff-Appellee, D.C. No. 2:18-cr-00381-PA-1
v.
MEMORANDUM*
JORGE ANTONIO ZAMORA
GONZALEZ, AKA Jorge Gonzalez, AKA
Antonio Zamora, AKA Jorge Zamora, AKA
Jorge Antonio Zamora,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted December 7, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Jorge Zamora Gonzalez appeals the district court’s order denying his motion
to dismiss his indictment for reentry after removal. Because the parties are familiar
with the facts, we do not recount them here. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
A defendant may collaterally attack the validity of a predicate removal order
under 8 U.S.C. § 1326(d). To mount a successful collateral attack on the removal
order, the defendant must show “(1) [he] 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 [him] of the
opportunity for judicial review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d). Under our precedents, 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. 2004)).
Zamora Gonzalez’s collateral attack on his underlying deportation order does
not satisfy the requirements of § 1326(d). Zamora Gonzalez does not establish that
he suffered prejudice as a result of the alleged defect in the immigration proceeding
because he fails to show that it was plausible the immigration court would have
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granted his application for a § 212(h) waiver. Zamora Gonzalez does not present
sufficient evidence demonstrating that his family will suffer extreme hardship if he
were to be deported. See United States v. Muro-Inclan, 249 F.3d 1180, 1185 (9th
Cir. 2001) (citing United States v. Arce-Hernandez, 163 F.3d 559, 564 (9th Cir.
1998)). Unlike the defendant in United States v. Arrieta, 224 F.3d 1076 (9th Cir.
2000), Zamora Gonzalez fails to provide “that ‘something more’ required . . . to
‘remove [his] case from the “typical” hardship category.’” Muro-Inclan, 249 F.3d
at 1186 (alteration in original) (quoting Arrieta, 224 F.3d at 1082).
Furthermore, the district court properly declined to address Zamora
Gonzalez’s claim that the immigration court did not have jurisdiction over his
deportation proceedings. Zamora Gonzalez has not shown good cause for his failure
to include his jurisdictional argument in his original motion to dismiss the
indictment. See United States v. Aguilera-Rios, 769 F.3d 626, 631 (9th Cir. 2014).
As such, we also decline to address his claim.
AFFIRMED.
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