United States v. Ivan Contreras-Lopez

MEMORANDUM

Following a conditional guilty plea, Ivan Contreras-Lopez (“Contreras”) appeals his conviction for being a deported alien found in the United States without permission in violation of 8 U.S.C. § 1326 . Contreras contends that the district court should have granted his motion to dismiss the indictment because it was based on a prior removal order that was entered in violation of his due process right to counsel, inherently prejudicing his ability to obtain immigration relief. We have jurisdiction under 28 U.S.C. § 1291 and review de novo a claim that a defect in a prior removal proceeding precludes reliance on the final removal order in a subsequent § 1326 pro ceeding. United States v. Ramos, 623 F.3d 672, 679 (9th Cir.2010).

To successfully bring a collateral attack against a prior removal order, an alien must demonstrate that: “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326 (d). “Under our case…