United States v. Carlos Cruz-Bermudez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 2021
• Docket: 19-50314
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50314

Plaintiff-Appellee, D.C. No. 8:18-cr-00247-DOC-1 v.

CARLOS ELIAS CRUZ-BERMUDEZ, MEMORANDUM* AKA Carlos Elias Bermuda Cruz, AKA Carlos Cruz Bermudez, AKA Carlos Elias Bermudez, AKA Carlos Elias Cruz Bermudez, AKA Carlos E. Cruz-Bermudez,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted February 2, 2021** Pasadena, California

Before: GOULD, LEE, and VANDYKE, Circuit Judges.

In 1998, Carlos Elias Cruz-Bermudez (“Cruz”) entered the United States

without inspection. He was placed in immigration proceedings and ordered

* 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). deported. Cruz appealed, and while the appeal was pending, he was given

Temporary Protected Status (“TPS”). From 2003 to 2005, Cruz was convicted of

multiple felonies. Cruz’s immigration proceedings were reinstated in 2007, and he

was again ordered deported. Cruz also waived his right to file a second appeal.

Cruz re-entered the United States without inspection and in 2018 committed

still another crime. He was then federally prosecuted, and he pleaded guilty to re-

entering the United States in violation of 8 U.S.C. § 1326. Cruz filed a motion to

dismiss the indictment, and the motion was denied by the district court. As part of

his plea agreement, Cruz could appeal the district court’s denial of his motion to

dismiss the indictment based on what Cruz alleged to be due process defects in the

prior removal proceeding. This appeal followed.

We review the denial of a § 1326(d) motion de novo, but the underlying

findings of fact are reviewed for clear error. United States v. Sandoval-Orellana,

714 F.3d 1174, 1178 (9th Cir. 2013). The Court also reviews de novo the

determination of whether a prior conviction is an aggravated felony. United States

v. Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003).

To determine whether convictions are aggravated felonies at the time of the

2007 hearing, we employ the two-part test set forth in Taylor v. United States, 495

U.S. 575 (1990). In the first step, called the “categorical approach,” an offense is an

aggravated felony if, on the face of the statute of conviction, “the full range of

2 conduct covered . . . falls within the meaning of [an aggravated felony].” Penuliar

v. Gonzales, 435 F.3d 961, 966 (9th Cir. 2006) (citation omitted), cert. granted,

judgment vacated, 549 U.S. 1178 (2007). But if the statute of conviction reaches

both conduct constituting an aggravated felony and conduct that would not do so,

we employ the second step, called the “modified categorical approach.” Id.

When charged with illegal reentry under 8 U.S.C. § 1326, a defendant has a

limited right to bring a collateral attack challenging the validity of his underlying

removal order. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047–48 (9th

Cir. 2004). To succeed under 8 U.S.C. § 1326(d), 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).

To satisfy the third requirement, a defendant must establish both (1) a

violation of his due process rights from defects in the underlying removal

proceeding, and (2) prejudice flowing from those defects. Ubaldo-Figueroa, 364

F.3d at 1048. Further, the defendant has the burden to prove prejudice under

§ 1326(d)(3). United States v. Gomez, 757 F.3d 885, 898 (9th Cir. 2014). To meet

his burden, an alien must demonstrate it was “‘plausible’ that he would have received

some form of relief from removal had his rights not been violated in the removal

3 proceedings.” Id. (citation omitted). A showing of plausibility requires a showing

greater than “mere possibility or conceivability.” United States. v. Valdez-Novoa,

780 F.3d 906, 915 (9th Cir. 2015) (citations omitted). To demonstrate prejudice, an

alien must show that he is not barred from receiving relief. If he is barred from

receiving relief, his claim is not plausible. Gomez, 757 F.3d at 898.

For the following reasons, we affirm Cruz’s conviction. First, even if Cruz

could satisfy the procedural requirements of § 1326(d)(1) and (2), his arguments are

incorrect because his removal order was not fundamentally unfair. Cruz’s only basis

for relief from removal, which he sought in his removal proceeding and in the district

court, was asylum. Both the IJ and district court properly held that Cruz was not

entitled to asylum.

There are two reasons for this. First, Cruz did not demonstrate a credible fear

of persecution or torture. See Mejia v. Ashcroft, 298 F.3d 873, 879 (9th Cir. 2002).

He told the IJ that he did not fear persecution or torture if returned to El Salvador.

Second, by 2007, Cruz had been convicted of two aggravated felonies. One would

have been enough to disqualify him for asylum. The district court properly

concluded that Cruz’s car theft convictions under California Vehicle Code § 10851

were aggravated felonies. Because Cruz did not qualify for asylum, there was no

due process violation, and thus no prejudice.

4 Second, Cruz has not shown any fundamental unfairness. Cruz’s TPS was

properly terminated due to his felony convictions. The IJ properly and fully

complied with the BIA’s remand. Finally, Cruz was ineligible for other forms of

deportation relief. The IJ’s actions did not constitute due process violations. Also,

Cruz did not suffer prejudice. None of Cruz’s arguments persuasively show that he

would have been granted asylum or any of the other forms of relief.

Finally, Cruz cannot satisfy the requirements of § 1326(d)(1) or (2), because

Cruz did not demonstrate that he exhausted his administrative remedies, and that his

immigration proceeding denied him judicial review. Cruz waived his right to appeal

the removal order at his 2007 immigration hearing. Further, this waiver was

considered, intelligent, and made with actual knowledge of his right to appeal.

AFFIRMED.