Castaneda-Magana

MEMORANDUM

Estaban Castaneda-Magana appeals the district court’s denial of his motion to dismiss his 8 U.S.C. § 1326 indictment. Castaneda-Magana claims that his due process rights were violated by the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) because they did not allow him to apply for discretionary § 212(c) relief from deportation. The IJ and BIA held that Castaneda-Magana was ineligible to apply for such relief due to the passage of the Anti-Terrorism and Effective Death Penalty Act. CastanedaMagana’s subsequent deportation served as an underlying element for his § 1326 conviction. Castaneda-Magana also claims that his attorney provided ineffective assistance of counsel when his attorney informed Castaneda-Magana that there was no chance that the BIA’s decision would be overturned by an appeal to the federal courts.

With regard to the due process claims concerning the IJ and the BIA, Castaneda-Magana needed to show that he was prejudiced by their decisions which found him ineligible to apply for discretionary § 212(c) relief. United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996). For Castaneda-Magana to demonstrate prejudice, he…