United States v. Manuel Gonzalez-Melchor

MEMORANDUM

Manuel Gonzalez-Melchor appeals the district court’s denial of his motion to dismiss an indictment charging him with illegal reentry after deportation pursuant to 8 U.S.C. § 1326 . Gonzalez-Melchor collaterally attacked the validity of his 1995 deportation on due process grounds under 8 U.S.C. § 1326 (d), arguing that he was not adequately advised as to the possibility of obtaining voluntary departure at his removal hearing. The district court denied the motion, finding that Gonzalez-Melchor failed to demonstrate actual prejudice resulting from the purported due process violation. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review de novo the district court’s denial of Gonzalez-Melchor’s § 1326(d) motion. United States v. Gonzalez, 429 F.3d 1252, 1255 (9th Cir.2005)(citing United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001)). In order to sustain a collateral attack on an underlying deportation pursuant to 8 U.S.C. § 1326 (d), a defendant must establish that entry of the underlying removal order was “fundamentally unfair.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). This requires not only a showing that…