United States v. Pedro Vargas

MEMORANDUM

Pedro Vargas appeals his conviction for illegal reentry after removal in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and affirm.

I.

Vargas first takes issue with the district court’s denial of his motion to dismiss the information. He had sought dismissal under 8 U.S.C. § 1326 (d) on the basis that the predicate June 2003 expedited removal order was invalid. We review the district court’s decision de novo. United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).

Under our case law, an expedited removal order that later serves as the basis for a § 1326 criminal prosecution may be attacked as invalid only if the removal order was “fundamentally unfair,” ie., “the deportation proceeding violated the alien’s due process rights and the alien suffered prejudice as a result.” United States v. Barajas-Alvarado, 655 F.3d 1077, 1085 (9th Cir.2011). Defendant argues that his 2003 expedited removal order was fundamentally unfair because the Government was not made to satisfy “its burden to prove alienage.”

A review of the relevant regulations, however, supports the conclusion that the burden was not improperly placed on Vargas to prove…