United States v. Rogelio Delgado-Benitez

MEMORANDUM

Rogelio Delgado-Benitez was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . He moved to dismiss the indictment, contending that his deportation could not serve as the basis for a § 1326 conviction because his deportation hearing did not comport with due process. In support of the motion, he submitted a declaration he wrote over four years after the deportation hearing — and after he was indicted — in which he alleged that he had had trouble understanding the deportation proceedings because his headset was faulty and that the Immigration Judge had “bec[o]me angry” with him during the proceedings. The district court found no due process violation and denied the motion. We affirm.

Section 1326(d), provides:

A removal order is fundamentally unfair if (1) defects in the underlying proceedings violated the alien’s due process rights and (2) he suffered prejudice as a result. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). A deportation proceeding violates due process if it prevents the deportee from knowingly and voluntarily waiving his rights. Id. “The government bears the burden of proving valid…