NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 1 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-10188 Plaintiff-Appellee, D.C. No. 5:14-cr-00620-RMW-1 v. HUGO VALVERDE-RUMBO, AKA Hugo MEMORANDUM* Osvaldo Valverde-Rumbo, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding UNITED STATES OF AMERICA, No. 17-10415 Plaintiff-Appellee, D.C. No. 5:14-cr-00620-BLF-1 v. HUGO VALVERDE-RUMBO, AKA Hugo Osvaldo Valverde-Rumbo, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted January 15, 2019 San Francisco, California Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District Judge. Hugo Valverde-Rumbo appeals from the district court’s denial of his motion to dismiss the indictment and his motion for a new trial. We review de novo the denial of a motion to dismiss an indictment brought pursuant to 8 U.S.C. § 1326. United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015). We review for abuse of discretion the denial of a motion for a new trial made on the ground of newly discovered evidence. United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I. Valverde-Rumbo was indicted for illegal reentry under 8 U.S.C. § 1326. He has a due process right to challenge the validity of the removal order underlying the charge because the order serves as a predicate element for his conviction. See United States v. Melendez-Castro, 671 F.3d 950, 953 (9th Cir. 2012) (citing United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004)). Among other ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 2 requirements, Valverde-Rumbo must demonstrate that he was prejudiced by a due process violation in the proceedings underlying his removal order. Id. (citing Ubaldo–Figueroa, 364 F.3d at 1048). To show prejudice, Valverde-Rumbo must (1) identify “a form of relief for which [he] was eligible to apply,” and (2) establish “that it was ‘plausible’ that, but for the due process violation, [he] would have been permitted to apply for, and would have obtained, such relief.” Cisneros-Rodriguez, 813 F.3d at 761. After an evidentiary hearing, the district court concluded that Valverde- Rumbo’s due process rights were violated because the immigration officer obtained invalid waivers of his right to a hearing and right to counsel. However, it concluded that Valverde-Rumbo was not prejudiced by the violations. We agree. Valverde-Rumbo argues that he would have applied for and obtained a U-visa, a “form of hardship relief available to victims of crimes who have suffered mental or physical abuse and are helpful to law enforcement officials in prosecuting or investigating the crime.” Cisneros-Rodriguez, 813 F.3d at 753. To be eligible for a ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals