NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50116 Plaintiff-Appellee, D.C. No. 3:16-cr-01339-H-1 v. MEMORANDUM* FRANCISCO BANUELOS-HARO, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Argued and Submitted July 12, 2018 Pasadena, California Before: BERZON, FISHER,** and WATFORD, Circuit Judges. Francisco Banuelos-Haro pleaded guilty to being found in the United States after being previously removed under 8 U.S.C. § 1326(a) and (b), but preserved the opportunity to appeal the district court’s denial of his motion to dismiss the indictment. On appeal, Banuelos-Haro argues (1) that he was not removable as * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. charged in 2002 and 2005, and (2) that his 2002 removal order is invalid because the Immigration Judge violated due process and Banuelos-Haro suffered prejudice. We disagree on both points and affirm. This Court has jurisdiction under 28 U.S.C. § 1291. We “review[] de novo the denial of a motion to dismiss” an indictment under 8 U.S.C. § 1326, “when the motion to dismiss is based on alleged due process defects in an underlying deportation proceeding.” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). We also review de novo “[t]he determination whether a prior conviction is an aggravated felony.” United States v. Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003). To convict a defendant of illegal reentry under 8 U.S.C. § 1326, “the Government must establish that the defendant ‘left the United States under order of exclusion, deportation, or removal, and then illegally reentered.’” United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Barajas- Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). Defendants who are charged under § 1326(a) and (b) may attack the validity of the predicate removal order under § 1326(d). To mount a successful collateral attack on the removal order, the defendant alien must show “(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 2 17-50116 opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). Under our precedents, “if [the] Defendant was not convicted of an offense that made him removable under the INA to begin with, he is excused from proving the first two requirements,” United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017), and his removal is deemed fundamentally unfair in satisfaction of the third. United States v. Aguilera-Rios, 769 F.3d 626, 630 (9th Cir. 2014). The 2002 Notice to Appear charged Banuelos-Haro with being removable ...
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