United States v. Anibal Diaz-Rodriguez

MEMORANDUM

Aníbal Diaz-Rodriguez, a Mexican national, was convicted of a violation of 8 U.S.C. § 1326 . He challenges the district court’s denial of his motion to dismiss the indictment and the sentence imposed. We affirm.

1. “[W]hen the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding,” the district court’s denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 is reviewed de novo. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). Diaz-Rodriguez argues that his due process rights were violated when he was deported in 1998 despite being a lawful permanent resident who was ineligible for deportation. However, Diaz-Rodriguez was inadmissible on July 3, 1999 and September 29, 2001 when he falsely claimed to be a U.S. citizen at the port of entry. See 8 U.S.C. § 1182 . Since his expedited removals on July 4, 1999 and September 29, 2001 did not rely on the 1998 removal but on his bogus claim to American citizenship, they are logically, factually, and legally independent of that other removal; any due process violation in 1998 cannot be imputed to them. Thus, the district court correctly denied the motion…