United States v. Jose Flores Garcia

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2019
• Docket: 18-10045
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10045

Plaintiff-Appellee, D.C. No. 2:17-cr-00707-JJT-1 v.

JOSE DAVID FLORES GARCIA, AKA MEMORANDUM* Jose Flores Garcia, AKA Jose David Flores- Garcia, AKA Jose Floresgarcia,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Submitted April 15, 2019** San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and VRATIL,*** District Judge.

Defendant-Appellant Jose David Flores Garcia collaterally attacks the

* 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 Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. removal order underlying his conviction for reentry after removal in violation of 18

U.S.C. § 1326(a). Flores Garcia moved to dismiss the indictment on the ground

that the underlying removal violated his due process rights, and the district court

denied the motion. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

1. Flores Garcia argues that the underlying expedited removal violated his due

process rights because he was not informed of his right to counsel or of the charges

against him, and because he was not allowed to read, and did not have read to him,

his sworn statement. In ruling on the motion to dismiss, however, the district court

conducted an evidentiary hearing in which it resolved these factual disputes in the

government’s favor. “A district court’s findings of fact underlying its denial of

such a motion are reviewed for clear error,” United States v. Sandoval-Orellana,

714 F.3d 1174, 1178 (9th Cir. 2013), and where, as here, “there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

Accordingly, we conclude that Flores Garcia’s due process rights were not violated

in this manner.

2. Flores Garcia also contends that his due process rights were violated because

he was not advised that he could have asked for discretionary permission to

withdraw his application for admission. But we have held that “the right to be

2 informed of potentially available avenues of relief from removal is not among” the

procedural rights to which non-admitted aliens are entitled. United States v.

Sanchez-Aguilar, 719 F.3d 1108, 1112 (9th Cir. 2013). Therefore, the fact that

Flores Garcia was not informed of this particular avenue of relief did not constitute

a violation of his due process rights.

AFFIRMED.