Rivera-Sanchez

MEMORANDUM *

Heriberto Rivera-Sanchez was charged with being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . He filed a motion to dismiss the indictment, alleging that his prior deportation was invalid. In order to collaterally attack the removal order that underlies his § 1326 charge, Rivera-Sanchez must show, inter alia, that the order was “fundamentally unfair.” 8 U.S.C. § 1326 (d)(3). A removal order is “fundamentally unfair” if (1) the defendant’s due process rights were violated by defects in the underlying removal proceeding, and (2) the defendant suffered prejudice as a result of those defects. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). To establish prejudice, a defendant “must only show that he had a ‘plausible’ ground for relief from deportation.” Id. at 1050 .

Rivera-Sanchez argues that the failure of the immigration judge (“IJ”) to inform him that he was eligible for discretionary relief under § 212(c) of the Immigration and Nationality Act (“INA”), Pub.L. No. 82-414, 66 Stat. 163, 187 (June 27, 1952), violated his due process rights and caused him prejudice because he had a plausible basis to expect the…