United States v. Jose Arteaga-Centeno

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2021
• Docket: 19-10412
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10412

Plaintiff-Appellee, D.C. No. 3:18-cr-00332-CRB-1 v.

JOSE LUIS ARTEAGA-CENTENO, AKA MEMORANDUM* Jose-Luis Arteaga-Centeno, AKA Jose Luis Arteaga-Velasquez, AKA Jose Artiaga, AKA Jose Luis Artiaga-Centeno, AKA Jose Luis Barrera, AKA Juan Carlos Elvir Barrera, AKA Carlos Dorre-Rodriguez, AKA Carlos Dorre-Rodriquez, AKA Jose Luis Velasquez-Centeno,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted February 1, 2021 San Francisco, California

Before: SILER,** RAWLINSON, and BUMATAY, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Jose Arteaga-Centeno appeals the district court’s order refusing to dismiss his

indictment for illegal reentry under 8 U.S.C. § 1326. We have jurisdiction under 28

U.S.C. § 1291, and reviewing de novo, United States v. Marks, 530 F.3d 799, 810

(9th Cir. 2008); United States v. Rojas-Pedroza, 716 F.3d 1253, 1261 (9th Cir.

2013), we affirm.

1. Arteaga-Centeno first argues that district court did not have jurisdiction to

reconsider its dismissal of the indictment. We disagree. A district court has inherent

power to reconsider its own order within the 30-day appeal period. United States v.

Foumai, 910 F.2d 617, 620–21 (9th Cir. 1990). Here, the district court dismissed

the indictment on January 8, 2019. That means the government had until February

8 to move for reconsideration. The government appealed on January 11, but then

moved for reconsideration on February 1.

The government was able to move for reconsideration notwithstanding the

pendency of the appeal because of Federal Rule of Criminal Procedure 37. That rule

allows “a timely motion . . . for relief that the [district] court lacks authority to grant

because of an appeal that has been docketed and is pending.” Fed. R. Crim. P. 37.

Thus, the motion for reconsideration was timely because it was made pursuant to

Rule 37 and within 30 days of the district court’s order dismissing the indictment.

That the government dismissed its appeal instead of waiting for this court to remand,

does not change that result. Because the reconsideration motion was made within

2 the relevant 30-day period, the district court had jurisdiction to grant it and

reconsider its dismissal order.

2. Arteaga-Centeno next argues that his removal order was invalid and cannot

form the basis of a conviction for illegal reentry under 8 U.S.C. § 1326. Specifically,

he argues that the Immigration Court’s jurisdiction never vested because his Notice

to Appear (“NTA”) lacked the address of the immigration court where it was to be

filed, as well as the time and place of his removal hearing, in violation of 8 C.F.R.

§§ 1003.14(a), 1003.15(b)(6), and 1003.18(b). But this argument is foreclosed by

our precedent.

In United States v. Bastide-Hernandez, we held that “when an NTA is filed,

jurisdiction exists and vests with the immigration court.” No. 19-30006, 2021 WL

345581, at *2 (9th Cir. Feb. 2, 2021). In other words, “the jurisdiction of the

immigration court vests upon the filing of an NTA, even one that does not at that

time inform the alien of the time, date, and location of the hearing.” Id. Here, the

Department of Homeland Security personally served Arteaga his NTA while he was

in custody. Accordingly, the Immigration Court had jurisdiction.

3. Finally, Arteaga-Centeno raises a collateral attack to his removal. To

succeed, he must show 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

3 opportunity for judicial review; and (3) the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d).

Arteaga-Centeno cannot carry this burden. “An underlying removal order is

fundamentally unfair if an alien’s due process rights were violated by defects in the

underlying deportation proceeding, and if he suffered prejudice as a result of the

defects.” United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010). Here, despite

the omission of the date and time of the hearing from Arteaga-Centeno’s NTA, he

still appeared before an immigration judge for his removal hearing and did not

contest his removability. Thus, the defect in the NTA did not impede his ability to

understand, participate in, or contest the removal proceedings.

Moreover, Arteaga’s only argument in support of prejudice was that the

Immigration Court never had jurisdiction to remove him. But as explained above,

that approach is foreclosed by our precedent. Arteaga-Centeno therefore has

suggested no other “plausible ground for relief from deportation,” which is required

to show prejudice. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.

2004) (simplified).

AFFIRMED.