United States v. Rigoberto Hernandez-Rivera

MEMORANDUM

Rigoberto Hernandez-Rivera, a native and citizen of Mexico, appeals the district court’s denial of his motion to dismiss the indictment, which was based on an allegedly invalid order of deportation; and the district court’s determination that a conviction for attempted sodomy under California Penal Code §§ 664 and 286(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm in part, vacate in part, and remand for further proceedings.

The district court properly denied the motion to dismiss the indictment because Hernandez-Rivera failed to demonstrate he had a plausible basis for seeking preconclusion voluntary departure, adjustment of status, or relief under the Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182 (h). See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (requiring prejudice to sustain a collateral attack on an underlying deportation order); United States v. Pallares-Galan, 359 F.3d 1088, 1103 (9th Cir.2004) (“To prove prejudice, [a petitioner] ... must show ... he had a ‘plausible’ basis for seeking relief from deportation.”); 8…