Luna-Rodriguez
United States v. Luna-Rodriguez
Opinion
Lead Opinion
MEMORANDUM **
Luna-Rodriguez appeals from the district court’s denial of his motion to dismiss the indictment for violation of 8 U.S.C. § 1326 , based on defects in his underlying deportation. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.
We review the district court’s refusal to dismiss the indictment de novo. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). To sustain a collateral attack on the validity of a deportation order under section 1326(d), the defendant must show that (1) his “due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of those defects.” Id. at 1048 , quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998).
The government concedes that Luna-Rodriguez’s due process rights were violated at the underlying proceeding by the immigration judge’s failure to advise him of his eligibility for discretionary waiver of deportation by the Attorney General under former section 212(c) of the Immigration and Nationality Act. At issue is whether Luna-Rodriguez was prejudiced by this violation.