United States v. Victor Rodriguez

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2021
• Docket: 19-50238
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 9 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50238

Plaintiff-Appellee, D.C. No. 3:18-cr-02911-WQH-1 v.

VICTOR DAVID RODRIGUEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted April 6, 2021** Pasadena, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

Victor Rodriguez appeals his felony conviction for attempted illegal reentry

in violation of 8 U.S.C. § 1326, arguing that his underlying removals may be

collaterally attacked. We have jurisdiction under 8 U.S.C. § 1291, and we affirm.

* 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). A noncitizen is guilty of illegal reentry if he reenters the country after having

“been denied admission, excluded, deported, or removed.” 8 U.S.C. § 1326(a)(1).

The noncitizen can collaterally attack the underlying removal order if “the entry of

the order was fundamentally unfair.” Id. § 1326(d). An order is fundamentally

unfair if: “(1) [the noncitizen’s] due process rights were violated by defects in the

underlying deportation proceeding, and (2) he suffered prejudice as a result of the

defects.” United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004)

(citation omitted). To show prejudice, the noncitizen must show “plausible

grounds for relief.” United States v. Raya-Vaca, 771 F.3d 1195, 1206 (9th Cir.

2014), abrogated on other grounds by Dep’t of Homeland Sec. v. Thuraissigiam,

140 S. Ct. 1959 (2020). We review “the denial of a motion to dismiss under 8

U.S.C. § 1326(d) de novo.” United States v. Martinez-Hernandez, 932 F.3d 1198,

1202 (9th Cir. 2019).

The district court correctly concluded that Rodriguez’s due process rights

were not violated during his 1998 and 2018 removals. He argues that the

immigration court lacked jurisdiction because the initial Notices to Appear (NTAs)

lacked the time, date, and address of the immigration hearing. But the Department

of Justice regulations do not require the initial NTA to include the date, time, or

place of the removal hearing. See Karingithi v. Whitaker, 913 F.3d 1158, 1158–59

2 (9th Cir. 2019); 8 C.F.R. § 1003.15(b); see also id. § 1003.18 (“If [this]

information is not contained in the Notice to Appear, the Immigration Court shall

be responsible for . . . providing notice to the government and the alien of the time,

place, and date of hearing.”). Rodriguez does not allege that he never received this

notice, and he appears to have attended both removal hearings. These removals

did not deny Rodriguez due process, so they cannot be collaterally attacked under

§ 1326(d).

Rodriguez also cannot collaterally attack his 2015 expedited removal. He

states that the immigration officer did not offer him notice and opportunity to

respond and did not have him sign Form I-867B (the Record of Sworn Statement

and Jurat). But even assuming without deciding that his due process rights were

violated, Rodriguez suffered no prejudice because he had no “plausible grounds for

relief.” See Raya-Vaca, 771 F.3d at 1206. The only relief from expedited removal

is withdrawal of an application for admission. The factors governing eligibility for

withdrawal would clearly have weighed against relief, and withdrawal is at the

discretion of the Attorney General. Id. at 1207; see Customs & Border Patrol,

Inspector’s Field Manual § 17.2, 2007 WL 7710869. Rodriguez had four felony

convictions, including an immigration conviction. He had been removed from the

country at least four times before. He had lied on his most recent reentry. Because

3 he had no plausible grounds for relief, the order cannot be collaterally attacked

under § 1326(d).

AFFIRMED.