United States v. Sergio Miramontes-Maldonado

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2021
• Docket: 20-30178
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 10 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30178

Plaintiff-Appellee, D.C. Nos. 1:19-cr-00060-BLW-1 v. 1:19-cr-00060-BLW

SERGIO MIRAMONTES- MALDONADO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Submitted December 6, 2021** Seattle, Washington

Before: McKEOWN, CHRISTEN, and MILLER, Circuit Judges.

Sergio Miramontes-Maldonado appeals his criminal conviction for one

count of illegal reentry pursuant to 8 U.S.C. § 1326. Miramontes-Maldonado filed

a motion to dismiss the indictment in the district court, arguing that the exclusion

* 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). order underlying the illegal reentry charge violated his right to due process because

the order was “fundamentally unfair.” The district court denied the motion, and

Miramontes-Maldonado entered a conditional plea. We review de novo. See

United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006). We have

jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the facts, we do not recite them here.

Miramontes-Maldonado argues that his original exclusion hearing in 1997

violated his right to due process for three reasons: (1) he was not advised of his

eligibility to request that his application be withdrawn; (2) he was not advised in

Spanish of the underlying immigration charges; and (3) the immigration court

failed to preserve a verbatim recording of his exclusion hearing. Miramontes-

Maldonado has the burden of showing both that the exclusion hearing violated his

due process rights and that he suffered prejudice from these defects. See United

States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).

We conclude Miramontes-Maldonado has not met his burden of establishing

a due process violation. In pre-Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) exclusion proceedings, a non-citizen was

entitled only to those rights provided by statute and regulation. See Zadvydas v.

Davis, 533 U.S. 678, 693 (2001) (“It is well established that certain constitutional

2 protections available to persons inside the United States are unavailable to aliens

outside of our geographic borders.”) (internal citations omitted); see also United

States v. Barajas-Alvarado, 655 F.3d 1077, 1088 (9th Cir. 2011). Miramontes-

Maldonado has not identified a statute that entitled him to a recording of his

hearing, and we have held that the absence of an audio recording of a prior

deportation hearing does not necessarily violate due process, so long as “other

means were available for [Miramontes-Maldonado] to challenge the validity of his

prior deportation hearings, such as his own memory, witnesses, and other

information within his [immigration] file.” United States v. Medina, 236 F.3d

1028, 1032 (9th Cir. 2001).

Miramontes-Maldonado’s contrary authority involved a permanent resident,

not an unadmitted alien. See Singh v. Holder, 638 F.3d 1196, 1200 (9th Cir. 2011).

Nor has Miramontes-Maldonado identified a statutory right to be informed of his

eligibility to request withdrawal of his application. In the context of an expedited

removal preceding, we have held that a non-citizen does not have the right to be

informed of this eligibility. See, e.g., United States v. Sanchez-Aguilar, 719 F.3d

1108, 1112 (9th Cir. 2013). Finally, Miramontes-Maldonado has not established

that he did not receive a translation of his charges, nor has he shown that he

3 required a translator. We thus affirm the district court’s conclusion that

Miramontes-Maldonado has not established a due process violation.

Even if we were to decide that Miramontes-Maldonado established a due

process violation, however, he has not shown that he was prejudiced. To show

prejudice, “[w]here the relevant form of relief is discretionary, the alien must

‘make a “plausible” showing that the facts presented would cause the Attorney

General to exercise discretion in his favor.’” Barajas-Alvarado, 655 F.3d at 1089

(quoting United States v. Acre–Hernandez, 163 F.3d 559, 563 (9th Cir. 1998)).

Although Miramontes-Maldonado cites various equitable factors to argue he would

have been allowed to withdraw his application in the absence of the cited defects,

he also applied for admission with a fraudulent document, and we have held that an

alien who intentionally presents fraudulent immigration documents likely would

not be allowed to withdraw his application, see, e.g., id. (citing In Re Gutierrez, 19

I. & N. Dec. 562 (BIA 1988)). We thus agree that Miramontes-Maldonado has not

shown prejudice, and we affirm the district court’s denial of his motion to dismiss

the indictment.

AFFIRMED.