United States v. Elias Juarez-Sanchez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-30031 Plaintiff-Appellee, D.C. No. 1:15-cr-00396-AA-1 v. MEMORANDUM* ELIAS JUAREZ-SANCHEZ, Defendant-Appellant. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding Submitted June 6, 2018** Portland, Oregon Before: M. SMITH and MURGUIA, Circuit Judges, and KORMAN,*** District Judge. On November 5, 2015, Defendant-Appellant Elias Juarez-Sanchez was indicted for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). * 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. In district court, Juarez-Sanchez filed a motion to dismiss the indictment against him. Juarez-Sanchez argued that the underlying removal proceedings held in 2011 violated his due process rights. The district court denied his motion to dismiss and Juarez-Sanchez then pleaded guilty to and was convicted of the illegal reentry charge. Juarez-Sanchez timely appealed. To successfully collaterally attack his removal order, Juarez-Sanchez 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); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). We review claims that defects in prior removal proceedings preclude reliance on the final removal order in subsequent illegal reentry proceedings de novo, but review the district court’s findings of fact for clear error. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012). This court can affirm the district court’s denial of the motion to dismiss on any basis supported by the record. Id. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm. 1. Juarez-Sanchez argues that his underlying removal proceedings were unfair and violated his due process rights because he was provided translation 2 services in Spanish rather than his native Nahuatl language. Immigrants in immigration removal proceedings, such as Juarez-Sanchez, are entitled to have proceedings against them translated into a language they understand. See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003); Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000) (“It is long-settled that a competent translation is fundamental to a full and fair hearing. If an alien does not speak English, deportation proceedings must be translated into a language the alien understands.”). Here, the key question is whether Juarez-Sanchez understood the Spanish translation he received such that he comprehended the immigration proceedings against him. Juarez-Sanchez requested that his ...

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