United States v. Olivar-Verdin

103 F. App'x 230

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 2004
• Docket: No. 03-10378; D.C. No. CR-02-40174-DLJ
• Status: Published

Opinion

MEMORANDUM

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On April 3, 2003, Jose Olivar-Verdin was found guilty of a one-count criminal indictment charging him with illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He now appeals, alleging that his prior deportation was unlawful and therefore should have been excluded in his criminal proceeding. We affirm.

I.

In order to prevail on this collateral attack of his underlying deportation order, Olivar-Verdin must demonstrate,inter aha, that he was deprived of the opportunity for judicial review. See 8 U.S.C. § 1326(d). Olivar-Verdin argues that the timing of his deportation, which occurred only eight days after the BIA’s affirmation of the IJ, improperly deprived him of the opportunity to seek review in this court. See 8 U.S.C. § 1252(b)(1) (providing thirty-day period in which to file a petition for review). However, Olivar-Verdin cites no authority to support his claim that his speedy deportation deprived him of the right to appeal to this court. Indeed, this argument is foreclosed by 8 U.S.C. § 1252(a)(2)(C), which provides: “[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” an aggravated felony or two crimes of moral turpitude. See 8 U.S.C. § 1252(a)(2)(C).

Olivar-Verdin also fails to demonstrate that his deportation order was “fundamentally unfair.” See 8 U.S.C. § 1326(d). The record does not indicate that Olivar-Verdin suffered prejudice from any defects in his underlying deportation proceedings.¹ See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). We find unpersuasive Olivar-Ver-

din’s contention that the IJ’s decision to deny him a second continuance to obtain counsel, in this instance, constituted an abuse of discretion that amounted to a due process violation. See 8 U.S.C. § 1229(b)(3); Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir.1985); Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). Accordingly, we affirm the judgment of the district court.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . Nonetheless, the better practice would have been for the IJ to grant a short continuance to at least allow Olivar-Verdin’s lawyer to appear. While we cannot say that the denial rose to the level of fundamental unfairness, a short, additional continuance would have been preferred.