Reyes-Bonilla

Following a conditional guilty plea, Willis Reyes-Bonilla (“Reyes”) appeals his conviction for being a deported alien found in the United States without permission in violation of 8 U.S.C. § 1326 . Reyes contends that the district court should have granted his motion to dismiss the indictment because it was based on a 2001 removal order that was entered in violation of his due process right to counsel, prejudicing his ability to obtain immigration relicf.

Almost twenty years ago, our circuit held that a defendant seeking to exclude evidence of a prior removal order in a prosecution for illegal reentry must do more than demonstrate a violation of due process rights; “[t]he defendant also bears the burden of proving prejudice.” United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir.1992) (en banc); see also 8 U.S.C. § 1326 (d)(3) (requiring an alien to show that “entry of the order was fundamentally unfair” in order to succeed on a collateral attack). In so doing, the Proar-Tovar court recognized that the defendant was effectively denied his right to direct review of the removal order, but affirmed his conviction for illegal reentry because he could identify “no plausible…