United States v. Miguel Ponce-Zuniga

MEMORANDUM

In March 2009, Miguel Ponce-Zuniga (“Ponce”), a former legal permanent resident of the United States, was removed from the United States following an aggravated felony conviction. In October 2010, Ponce was convicted of attempted reentry by a removed alien under 8 U.S.C. § 1326 . Ponce appeals this conviction. We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

A defendant may challenge an attempted reentry conviction by collaterally attacking the underlying removal order pursuant to 8 U.S.C. § 1326 (d). Section 1326(d) has three requirements: (1) the defendant must have exhausted administrative remedies; (2) the deportation proceedings must have improperly deprived the defendant of the opportunity for judicial review; and (3) the entry of the order must have been fundamentally unfair. We review a collateral attack to a removal order de novo. United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir.2010) (en banc). The entry of the removal order is fundamentally unfair if “(1) [the immigrant’s] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v.…