United States v. Marco Contreras

MEMORANDUM

Marco Contreras entered a conditional guilty plea to the charge of being a deport ed alien found in the United States, in violation of 8 U.S.C. § 1326 . He reserved the right to challenge on appeal the constitutional validity of the underlying order of removal that caused his deportation. The district court correctly determined that the order of removal was indeed constitutionally defective because the IJ failed to determine whether or not Contreras’s waiver of a removal hearing was voluntary, knowing, and intelligent. However, the district court denied Contreras’s motion to dismiss because Contreras could not establish prejudice as required by United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (a defendant attacking an underlying removal order must show “prejudice as a result of the defects”) (internal quotation marks omitted). The district court so concluded because (1) Contreras had provided no evidence of “extreme hardship” that would have warranted a § 212(h) waiver of inadmissibility, and (2) his conviction in Nevada of robbery with a deadly weapon rendered him ineligible for voluntary departure.

Contreras’s argument here is that the violation…