United States v. Antonio Lopez-Valle

511 F. App'x 616

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2013
• Docket: 12-50253
• Status: Unpublished

Opinion

MEMORANDUM ***

Antonio Lopez-Valle appeals his conviction of attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Lopez argues that the district court erred in denying his motion to dismiss the indictment, which collaterally attacked the deportation order. “To succeed in such a challenge ... an alien must demonstrate that: ‘(1) the alien 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 the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.’ ” United States v. Reyes-Bonilla, 671 F.3d 1036, 1042-43 (9th Cir. 2012) (quoting 8 U.S.C. § 1326(d)).

Even assuming arguendo that Lopez could satisfy the first two requirements, he cannot meet the third. To show fundamental unfairness, Lopez must establish prejudice. United States v. Bustos-Ochoa, 704 F.3d 1053,1056-57 (9th Cir.2012). Because he has been convicted of an aggravated felony he cannot do so. Id. at 1056-57.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.