United States v. Morgan Gonzalez

MEMORANDUM

Appellant Morgan Gonzalez (“Gonzalez”) appeals the district court’s order denying his motion to dismiss the indictment for attempted reentry by a deported alien. We have jurisdiction under 28 U.S.C. § 1291 and, finding no error, affirm the district court’s judgment.

We reviews “a denial of a motion to dismiss an 8 U.S.C. § 1826 indictment de novo when the motion is based upon an alleged due process defect in the underlying deportation proceeding.” United States v. Pallares-Galan, 359 F.3d 1088, 1094 (9th Cir.2004) (citing United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001)). The district court’s factual findings are reviewed for clear error. United States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir.2009).

In the criminal proceedings at the district court, Gonzalez sought to attack his underlying removal order collaterally pursuant to 8 U.S.C. § 1326 (d). To prevail on a collateral attack of his removal order, Gonzalez must establish (1) that he exhausted any available administrative remedies available to seek relief from the removal order, (2) that the deportation proceedings at which the order was issued improperly deprived him of the opportunity…