United States v. Jesus Chavarria-Arellano

MEMORANDUM

Jesus Chavarria-Arellano appeals the district court’s denial of his motion to dismiss an indictment charging him with illegal reentry after deportation under 8 U.S.C. § 1326 . He contends that § 1826(d), which permits collateral challenges to the “underlying deportation order,” permits him to collaterally attack the May 1998 administrative voluntary departure order.

The indictment charged Chavarria-Arel-lano with being present in the United States on or about August 1, 2012, after having been subjected to expedited removal on July 1, 1998 and after having had his removal reinstated on April 5, 2000. But the indictment does not reference the May 1998 order, and the plain language of the statute does not allow for collateral challenges to orders not “underlying” the indictment.

Our recent holding in United States v. Sanchez-Aguilar, 719 F.3d 1108 (9th Cir.2013), ce rt. denied, — U.S. -, 134 S.Ct. 364 , 187 L.Ed.2d 252 (2013), forecloses Chavarria-Arellano’s due process argument, as he acknowledged in his briefs and before the panel. Officials’ failure to inform a “[n]on-admitted alien[ ] ... who seek[s] entry at the border” of the right to request withdrawal of his…