United States v. Omar Dominguez-Valencia

MEMORANDUM

Omar Dominguez-Valencia appeals his conviction following a bench trial and sentence for attempted entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

1. The district court did not err in denying Dominguez-Valencia’s motion under 8 U.S.C. § 1326 (d) to dismiss the indictment. A claim that a defect in a previous removal proceeding prevents reliance on the final removal order in a later 8 U.S.C. § 1326 proceeding is reviewed de novo. United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir.2012). We review the district court’s factual findings for clear error. Id. .

A defendant seeking to collaterally attack a removal order must show: (1) he exhausted his administrative remedies; (2) the deportation proceedings improperly denied him judicial review; and (3) entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326 (d). We have held that an underlying removal order is fundamentally unfair “when the deportation proceeding violated the alien’s due process rights and the alien suffered prejudice as a result.” Reyes-Bonilla, 671 F.3d at 1043 (quoting United States v. Arias-Ordonez, 597 F.3d 972,…