United States v. Francisco Lizarraga-Espinoza

MEMORANDUM

Defendant-appellant Francisco Javier Lizarraga-Espinoza appeals his conviction after a jury trial under 8 U.S.C. § 1326 (a) and (b) for illegal reentry after removal. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Lizarraga-Espinoza contends that his two removal orders — one from 1998 and one from 2000 — re invalid and thus cannot serve as the basis for prosecution under 8 U.S.C. § 1326 . In order to collaterally attack a predicate removal order, a defendant must demonstrate, among other things, that the removal order was “fundamentally unfair.” 8 U.S.C. § 1326 (d); see also United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.2004). For a removal order to be “fundamentally unfair,” the removal proceedings must have violated the defendant’s due process rights in a manner that caused prejudice — meaning that absent the due process violation some relief from removal would have been plausible. United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir.2011); United States v. Garcia-Martinez, 228 F.3d 956, 959-60 (9th Cir.2000).

We assume without deciding that Lizar-raga-Espinoza’s 1998 removal order was invalid and cannot serve as the…