United States v. Ericka Escalante

FILED
NOT FOR PUBLICATION
NOV 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50279
Plaintiff-Appellee, D.C. No.
2:14-cr-00433-JAK-1
v.
ERICKA ARELLANO ESCALANTE, MEMORANDUM*
AKA Erika Arellano, AKA Yvette
Arellano, AKA Ericka Arrellano,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted November 7, 2016
Pasadena, California
Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.
Defendant Ericka Arellano Escalante appeals the denial of her motion to
dismiss the indictment against her for illegal reentry after removal in violation of 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when,
as here, the motion is based on a collateral attack on an underlying removal
proceeding. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.
2004).
To attack collaterally an underlying removal order, a defendant must
demonstrate that “(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). A “removal order is fundamentally unfair if: (1) a defendant’s due
process rights were violated by defects in his underlying deportation proceeding,
and (2) he suffered prejudice as a result of the defects.” United States v.
Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2014) (alteration marks omitted)
(quoting Ubaldo-Figueroa, 364 F.3d at 1048).
Without deciding whether Arellano’s conviction under California Health and
Safety Code section 11378 was for a controlled substance offense under the
Immigration and Nationality Act (INA), we hold that Arellano cannot show, as a
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matter of law, that she plausibly was prejudiced as a result of any alleged defects in
her removal proceeding.
In the § 1326 prosecution, Arellano admitted to having been convicted in
2009 for a felony offense in violation of California Penal Code section 273.5(a). A
conviction under section 273.5(a) is a categorical crime of violence.
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010); see also 18 U.S.C.
§ 16 (defining crime of violence). As Arellano also admitted that she received a
sentence of two years imprisonment for the offense, her section 273.5(a)
conviction constitutes an aggravated felony under the INA. See 8 U.S.C. §
1101(a)(43)(F) (defining “a crime of violence . . . for which the term of
imprisonment [is] at least one year” as an aggravated felony).
Arellano therefore would have been statutorily ineligible for cancellation of
removal. See 8 U.S.C. § 1229b(b)(1)(A)–(B) (requiring an applicant to “ha[ve]
been a person of good moral character” “for a continuous period of not less than 10
years immediately preceding the date of [] application”); 8 U.S.C. § 1101(f)(8)
(barring a determination of good moral character for individuals convicted of an
aggravated felony). Arellano was similarly ineligible for pre-conclusion voluntary
departure. See 8 C.F.R. § 1240.26(b)(1)(i)(E) (noting that individuals convicted of
an aggravated felony are not eligible for voluntary departure); see also 8 U.S.C. §
3
1229c(e) (“The Attorney General may by regulation limit eligibility for voluntary
departure under this section for any class or classes of aliens.”).
Arellano thus cannot show that she was prejudiced in her removal
proceeding, because it is not plausible that she would have received either type of
discretionary relief. See United States v. Bustos-Ochoa, 704 F.3d 1053, 1056 (9th
Cir. 2012) (“To prove prejudice, [a defendant] must demonstrate that he had
plausible grounds for relief from deportation. . . . An alien who is barred from
receiving relief cannot meet this plausibility standard.” (internal quotation marks
and citation omitted)). Moreover, Arellano cannot establish that relief was
plausible solely because the government might have failed to “introduce noticeable
documentation of [the section 273.5(a)] aggravated felony conviction.” Id. at 1057.
In sum, even if the immigration judge (IJ) incorrectly held that her
conviction under California Health and Safety Code section 11378 was a
controlled substances conviction, Arellano cannot show that she was prejudiced by
the IJ’s failure to advise her of discretionary forms of relief. See Bustos-Ochoa,
704 F.3d at 1057. Accordingly, Arellano’s motion to dismiss the indictment
against her under 8 U.S.C. § 1326 was properly denied.
AFFIRMED.
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