United States v. Jorge Zamora-Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2020
• Docket: 18-50422
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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.