United States v. Ulloa-Mejia

518 F. App'x 40

• Court: Court of Appeals for the Second Circuit
• Decided: May 6, 2013
• Docket: 12-2527-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Fredis Honan Ul-loa-Mejia appeals from a judgment pursuant to an April 27, 2012 Memorandum Decision and Order by the United States District Court for the Northern District of New York (Mordue, J.) denying Defendant’s motion to dismiss the one-count indictment charging Defendant with illegally re-entering the United States after being removed, in violation of 8 U.S.C. § 1326(a). Defendant argued that the prior in absen-tia removal order could not be used as a predicate for establishing a violation of 8 U.S.C. § 1326(a) because it was issued, he asserted, in violation of his due process rights. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

In 2005, at age fifteen, Defendant traveled from Honduras to the United States. He was apprehended in Texas and issued a notice to appear on an unspecified future date. Defendant was directed to update immigration officials of any change in his address to ensure that Defendant received notice of the date for his hearing. There is no evidence that Defendant informed immigration officials that he relocated to North Carolina to live with his mother. Defendant was ordered removed in absen-tia in October 2005. In February 2012, after he was denied refugee status in Canada, Defendant again entered the United States illegally. He was immediately apprehended and charged with violating 8 U.S.C. § 1326(a). Defendant pled guilty but reserved the right to appeal the district court’s order denying his motion to dismiss the indictment.

A defendant may collaterally attack the validity of a deportation order upon which a violation of 8 U.S.C. § 1326(a) is based. 8 U.S.C. § 1326(d); United States v. Calderon, 391 F.3d 370, 374 (2d Cir.2004). “To do so, however, an alien must ‘demonstrate [] 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 opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.’ ” Id. (quoting 8 U.S.C. § 1326(d)) (alterations in original).

We agree with the district court that Defendant failed to satisfy any of the three requirements of 8 U.S.C. § 1326(d). Defendant principally argues that the 2005 removal order violated due process because Defendant was fifteen years old at the time he received the notice to appear and neither he nor his parents were notified of the scheduled time and place for Defendant’s hearing. However, immigration officials need only inform the parents of a “minor,” defined in the immigration context as an individual “under the age of 14.” 8 C.F.R. § 236.2.

In addition, Defendant failed to provide immigration officials with his new address after he relocated to North Carolina, despite being explicitly informed that he was required to keep his contact information current. It is not fundamentally unfair to enter an order of removal in absentia against an individual who does not receive notice by virtue of his failure to provide immigration officials with a current address. See, e.g., United States v. Hinojosar-Perez, 206 F.3d 832, 837 (9th Cir.2000).

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.