NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 28 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50319 Plaintiff-Appellee, D.C. No. 3:19-cr-00550-BAS-1 v. OSWALDO MANGAS, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding Argued and Submitted February 7, 2022 Pasadena, California Before: LIPEZ,** TALLMAN, and LEE, Circuit Judges. Concurrence by Judge LEE. Oswaldo Mangas appeals his conviction following a conditional guilty plea to being a removed person found unlawfully in the United States, in violation of 8 U.S.C. § 1326. He argues that the district court erred in denying his motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. dismiss the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. In 2009, Mangas was convicted of voluntary manslaughter under Cal. Penal Code § 192(a). He was placed in administrative removal proceedings1 in 2010, on the basis that he was not a citizen or lawful permanent resident of the United States and that his voluntary manslaughter conviction was for a crime of violence constituting an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); 8 U.S.C. § 1101(a)(43)(F) (designating as an aggravated felony “a crime of violence . . . for which the term of imprisonment [is] at least one year”). He was served with and executed a DHS waiver form, in which he checked two boxes indicating that he did not wish to contest the allegations or seek judicial review, and he was ordered removed the same day. Mangas was subsequently found in the United States in January 2019 and indicted in February 2019 for being a removed person found unlawfully in the United States. He moved to dismiss the indictment, arguing that his 2010 removal order was invalid and therefore could not support a conviction under § 1326. See 8 1 Administrative removal refers to a streamlined removal process, without an appearance before an immigration judge, for individuals who are alleged not to be citizens or lawful permanent residents and who are alleged to have aggravated felony convictions. See 8 U.S.C. § 1228(b); 8 C.F.R. § 238.1. 2 U.S.C. § 1326(d). We review a collateral attack on a removal order de novo. United States v. Lopez–Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc). To succeed on a collateral attack, a defendant must demonstrate “(1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair.” United States v. Ubaldo-Figueroa, …
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