United States v. Oscar Bayardo-Garcia

MEMORANDUM

Oscar Bayardo-Garcia was charged with one count of being a deportable alien found in the United States under 8 U.S.C. § 1326 . He moved to dismiss the indictment under 8 U.S.C. § 1326 (d), and, after the court denied the motion, he pleaded guilty to the charge but reserved the right to appeal the denial of his motion to dismiss. We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 . United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004).

1. The basis for Bayardo-Garcia’s indictment under § 1326 is an order of removal issued in 1999, when he was subjected to expedited removal proceedings. “A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.” Id. at 1048 . To sustain a collateral attack on the removal order, Bayardo-Garcia must demonstrate that “the proceeding that resulted in the expedited removal was fundamentally unfair in that the deportation proceeding violated the alien’s due process rights and the alien suffered prejudice as a result.” United States v.…