United States v. Jose Magana-Lemus

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 30, 2020
• Docket: 19-50187
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50187

Plaintiff-Appellee, D.C. No. 8:18-cr-00129-CJC-1 v.

JOSE FRANCISCO MAGANA-LEMUS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted August 11, 2020 Pasadena, California

Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and M. WATSON,** District Judge.

Jose Francisco Magana-Lemus appeals his conviction for illegal reentry

under 8 U.S.C. § 1326(a), (b)(1). Because the facts are known to the parties, we

repeat them only as necessary to explain our decision.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. I

First, Magana-Lemus’s collateral attack on his 2005 order of removal fails

because the validity of such order does not depend on the validity of his previous

order of removal from 1999. In 2005, following full removal proceedings,

Magana-Lemus was ordered removed explicitly on the basis of the independent

charges alleged in the Notice to Appear. The immigration judge’s mere citation to

Immigration and Nationality Act § 241(a)(5)—in reference to Magana-Lemus’s

eligibility for relief from removal—did not “convert” the proceedings into a

reinstatement of the prior order of removal. Further, any alleged due process

violations from Magana-Lemus’s 1999 removal proceedings did not “infect” the

2005 removal, because Magana-Lemus would have been removable on the basis of

at least one of the charges in 2005 even if he had retained his status as a legal

permanent resident. See, e.g., Hernandez-Almanza v. U.S. Dep’t of Justice, 547

F.2d 100, 102 (9th Cir. 1976).

II

Second, even if the validity of Magana-Lemus’s 2005 removal did depend

on the validity of his 1999 removal, Magana-Lemus’s collateral attack would still

fail. He has not shown that he suffered prejudice as a result of the immigration

judge’s failure to inform him of his opportunity to seek discretionary relief in

1999. See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir.

2 2018). Magana-Lemus has not shown that he plausibly would have received such

relief if he had applied for it. See id. Although he has identified some positive

factors in his favor, Magana-Lemus has failed to put forth evidence of “unusual or

outstanding equities” that could plausibly have outweighed his substantial criminal

history. See id. at 1069–70; United States v. Gonzalez-Valerio, 342 F.3d 1051,

1057 (9th Cir. 2003).

AFFIRMED.