NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50094 Plaintiff-Appellee, D.C. No. 8:18-cr-00171-JVS-1 v. ANTONIO VILLEGAS-SERRANO, AKA MEMORANDUM* Antonio Villegas, AKA Juan Villegas- Cerrano, Defendant-Appellant. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Submitted October 22, 2021** Pasadena, California Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District Judge. Defendant-Appellant Antonio Villegas-Serrano (Villegas) was indicted * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. under 8 U.S.C. § 1326(a) for being an alien unlawfully found in the United States. He appeals the district court’s order denying his motion to dismiss his indictment, arguing that his underlying immigration removal proceeding was “fundamentally unfair” because the Immigration Judge (IJ) undermined his right to counsel, failed to explain voluntary departure, and relied on false evidence. Additionally, he argues for the first time on appeal that the immigration court lacked jurisdiction because his Notice to Appear (NTA) was deficient. To collaterally attack an underlying removal order for violation of due process, an alien must demonstrate that “(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d); United States v. Gomez, 757 F.3d 885, 892 (9th Cir. 2014). An “order is ‘fundamentally unfair’ if: (1) [a defendant’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. Melendez- Castro, 671 F.3d 950, 953 (9th Cir. 2012) (quoting United States v. Ubaldo- Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)). We “review[] de novo a ‘denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based on an alleged deprivation of due process 2 in the underlying removal proceedings.’” United States v. Garcia-Gonzalez, 791 F.3d 1175, 1179 (9th Cir. 2015) (quoting United States v. Valdavinos-Torres, 704 F.3d 679, 685 (9th Cir. 2012)). We review the district court’s factual findings for clear error. Id. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. Right to Counsel. Due process provides a right to counsel, and a waiver of that right must be “knowing and voluntary.” United States v. Cisneros- Rodriguez, 813 F.3d 748, 756 (9th Cir. 2015). Villegas was advised of his right to counsel and provided with a list of no-cost attorneys more than two months before his …
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