United States v. Rodrigo Guevara-Osuna

MEMORANDUM

Rodrigo Guevara-Osuna (“Guevara”), a native of Mexico, appeals the district court’s denial of his motion pursuant to 8 U.S.C. § 1326 (d) to dismiss an indictment charging him with being a deported alien found in the United States in violation of 8 U.S.C. § 1326 (a) and (b). The motion to dismiss was based on an allegedly invalid deportation order. Specifically, Guevara claimed his immigration judge (“IJ”) inadequately advised him of his eligibility for relief from deportation pursuant to 8 U.S.C. § 1182 (c) (1991) (“§ 212(c)”). He argued that he was eligible for relief, the IJ violated his due process rights by failing to inform him of his eligibility, and he suffered prejudice as a result. We affirm.

A motion to dismiss based on the collateral attack of an underlying deportation order is reviewed de novo. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). The district court’s findings of fact in connection with a motion to dismiss are reviewed for clear error. United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir.2009).

Assuming a due process violation, Guevara has not suffered prejudice. To establish prejudice, Guevara is required to show…