United States v. Omar Dominguez-Valencia

FILED
NOT FOR PUBLICATION APR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50072
Plaintiff - Appellee, D.C. No. 3:11-cr-01750-BTM-1
v.
MEMORANDUM*
OMAR DOMINGUEZ-VALENCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted February 3, 2015
Pasadena, California
Before: PREGERSON and NGUYEN, Circuit Judges and WHALEY,** Senior
District Judge.
Omar Dominguez-Valencia appeals his conviction following a bench trial and
sentence for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court did not err in denying Dominguez-Valencia’s motion
under 8 U.S.C. § 1326(d) to dismiss the indictment. A claim that a defect in a
previous removal proceeding prevents reliance on the final removal order in a later
8 U.S.C. § 1326 proceeding is reviewed de novo. United States v. Reyes-Bonilla,
671 F.3d 1036, 1042 (9th Cir. 2012). We review the district court’s factual findings
for clear error. Id.
A defendant seeking to collaterally attack a removal order must show: (1) he
exhausted his administrative remedies; (2) the deportation proceedings improperly
denied him judicial review; and (3) entry of the removal order was fundamentally
unfair. 8 U.S.C. § 1326(d). We have held that an underlying removal order is
fundamentally unfair “when the deportation proceeding violated the alien’s due
process rights and the alien suffered prejudice as a result.” Reyes-Bonilla, 671 F.3d
at 1043 (quoting United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir.
2010)). Due process requires the immigration judge to “expressly and personally
inform the alien that he has the right to appeal” and the waiver of this right must be
“considered and intelligent.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048-49 (9th Cir. 2004). The district court correctly concluded that Dominguez-
Valencia’s waiver of his right to appeal was considered and intelligent.
Dominguez-Valencia was also expressly advised of this right two separate times on
the same day and validly waived his right. Dominguez-Valencia’s motion to
dismiss his indictment for illegal reentry was properly denied because he failed to
exhaust his administrative remedies under 8 U.S.C. § 1326(d).
Assuming Dominguez-Valencia had satisfied the first two prongs of 8
U.S.C. § 1326(d) as he claims, he cannot establish the required prejudice. Pursuant
to Lopez-Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011), Dominguez-Valencia
was removable as charged. See also United States v. Ramos-Medina, 706 F.3d 932,
936-37 (9th Cir. 2013) (“Our decisions in United States v. Becker and Lopez-
Cardona…, establish that first-degree burglary under California Penal Code § 459
is categorically a crime of violence and thus an ‘aggravated felony’ for the
purposes of the INA”) (citations omitted).
The district court also correctly concluded that there was no due process
violation stemming from the alleged failure of the immigration judge to advise
Dominguez-Valencia of all available forms of relief. Where the record before an
immigration judge fairly raises a “reasonable possibility that the petitioner may be
eligible for relief,” the immigration judge must advise the petitioner of the
potential relief options. United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th
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Cir. 2010) (quoting Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989)).
The immigration judge is not expected to be “clairvoyant,” and “the record before
[the immigration judge] must fairly raise the issue.” United States v. Muro-Inclan,
249 F.3d 1180, 1183 (9th Cir. 2001) (quoting Moran-Enriquez, 884 F.2d at 422).
The immigration judge properly informed Dominguez-Valencia of his apparent
eligibility for two forms of relief. Dominguez-Valencia claims that the immigration
judge should have advised him of a third option for relief: a procedural mechanism
that would have allowed him to pursue adjustment of status from Mexico after his
deportation.
Assuming the immigration judge violated Dominguez-Valencia’s due
process rights by not informing him of this procedural mechanism, Dominguez-
Valencia cannot establish the required prejudice. Where an immigration judge fails
to advise an alien of apparent eligibility for relief, “the alien must still establish
prejudice under the second prong of §1326(d)(3).” United States v. Rojas-Pedroza,
716 F.3d 1253, 1263 (9th Cir. 2013). “Where the relevant form of relief is
discretionary, the alien must make a ‘plausible’ showing that the facts presented
would cause the Attorney General to exercise discretion in his favor.” Id. (quoting
United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011)). For the
Attorney General to grant discretionary relief, Dominguez-Valencia would have to
show that he bears the burden of hardships that are “exceptional and extremely
unusual.” 8 C.F.R. § 212.7(d). As the district court correctly concluded, the facts
and circumstances of Dominguez-Valencia’s case do not meet this burden. See
Muro-Inclan, 249 F.3d at 1184.
2. We affirm Dominguez-Valencia’s sentence without prejudice. The parties
agree that in light of the Supreme Court’s holding in Descamps v. United States,
133 S. Ct. 2276 (2013), Dominguez-Valencia’s 16-level enhancement was
improper and that he must be resentenced. Because Dominguez-Valencia has
already been removed from the United States, we take the approach of United
States v. Aguilar-Reyes, 723 F.3d 1014 (9th Cir. 2013), and affirm his sentence
without prejudice to a later request for resentencing when he is present in the
United States or has waived his right to be present.
AFFIRMED IN PART, AFFIRMED WITHOUT PREJUDICE IN
PART.
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