United States v. Juan Grande

MEMORANDUM

Defendant-Appellant Juan Grande appeals the district court’s denial of his motion to dismiss the indictment charging him with illegal reentry under 8 U.S.C. § 1326 , by arguing that his underlying removal order was invalid. We have juris diction pursuant to 28 U.S.C. § 1291 . We reverse.

“We review de novo the denial of a motion to dismiss an 8 U.S.C. § 1326 indictment when the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004) (internal quotation marks and citation omitted).

“In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation.” Id. (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998)). Grande “has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.” Id. To sustain a collateral attack of an expedited removal order, a defendant must demonstrate that the “proceedings were fundamentally unfair, meaning that the procedural…