United States v. David Alcon-Mateo

MEMORANDUM

David Alcon-Mateo appeals the district court’s denial of his motion to dismiss an indictment charging him with illegal reentry after deportation pursuant to 8 U.S.C. § 1326 . Alcon-Mateo collaterally attacked the validity of his deportation on due process grounds under 8 U.S.C. § 1326 (d), arguing that he was not adequately advised as to the possibility of obtaining voluntary departure at his removal hearing. The district court denied the motion on the grounds that Alcon-Mateo failed to demonstrate actual prejudice resulting from the due process violation. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review de novo a collateral attack to a deportation order. United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir.2010) (en banc). In order to succeed on a collateral attack, a defendant must establish that entry of the underlying removal order was “fundamentally unfair.” 8 U.S.C. § 1326 (d)(3). Entry of a removal order is “fundamentally unfair” for purposes of § 1326(d)(3) where defects in the removal proceeding violated the defendant’s due process rights and the defendant suffered prejudice as a result. United States v. Ubaldo-Figueroa, 364…