United States v. Jose Mariscal Navarrete

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10456 Plaintiff-Appellee, Case. No. 18-CR-00446-HSG v. MEMORANDUM* JOSE MARISCAL NAVARRETE, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam Jr., District Judge Submitted January 24, 2023** San Francisco, California Before: BADE and BUMATAY, Circuit Judges, and BERMAN, *** District Judge. Jose Mariscal Navarrete appeals his conviction for illegal reentry under 8 U.S.C § 1326. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. * 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 Richard M. Berman, United States District Judge for the Southern District of New York, sitting by designation. 1 Mariscal Navarrete collaterally attacks the validity of his prior removal order under 8 U.S.C. § 1326(d). A removal 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. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (alteration in original) (citation omitted). 1. We reject Mariscal Navarrete’s argument that the Immigration Court lacked jurisdiction over his case due to a defective Notice to Appear (“NTA”). Mariscal Navarrete contends that because the NTA lacked the location of his removal hearing, as required by 8 U.S.C. § 1229a(a)(1) and 8 C.F.R. § 1003.15, the immigration court was deprived of jurisdiction. We recently addressed whether a defective NTA divests an Immigration Court of jurisdiction and held that it does not. United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc) (holding that “defects in an NTA have no bearing on an immigration court’s adjudicatory authority”). Accordingly, the Immigration Court had jurisdiction over Mariscal Navarrete’s case and his due process rights were not violated. 2. The defective NTA also did not violate Mariscal Navarrete’s due process rights. He argues that the NTA’s lack of hearing location information prejudiced him because he did not know where to file court documents or have the opportunity to coordinate with an attorney. Any defects caused by the lack of 2 hearing location information were cured at the hearing. First, Mariscal Navarrete attended the hearing. Second, the immigration judge (“IJ”) asked him if he wanted to postpone the hearing to obtain an attorney, and Mariscal Navarrete declined. Third, Mariscal Navarrete waived his right to appeal. Given these facts, the lack of hearing location information on the NTA did not result in a fundamentally unfair removal proceeding. 3. Mariscal Navarrete also did not receive a fundamentally unfair proceeding because the IJ failed to inform him about his eligibility for relief under 8 U.S.C. § 1182(h) (“§ 212(h) relief”). At the time …

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