NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50145 Plaintiff-Appellee, D.C. No. 3:18-cr-03681-WQH-1 v. JUAN TINOCO-GARCIA, MEMORANDUM * Defendant-Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Argued and Submitted August 31, 2020 Pasadena, California Before: SILER,** BERZON, and LEE, Circuit Judges. Memorandum joined by Judge SILER and Judge LEE; Dissent by Judge BERZON After the defendant-appellant Juan Tinoco-Garcia was criminally charged with illegal re-entry into the United States, he moved to collaterally attack his prior * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the removal order for lack of due process. We review the district court’s denial of his motion to dismiss de novo. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We affirm because the Immigration Judge (“IJ”) sufficiently advised Tinoco-Garcia about his apparent eligibility for relief and provided him with an opportunity to consult with counsel, which he declined.1 “A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.” Id. at 1047-48 (citing United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987)). To sustain such a collateral attack, “a defendant must, within constitutional limitations, demonstrate (1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair.” Id. at 1048 (citing 8 U.S.C. § 1326(d)). “An underlying removal order is ‘fundamentally unfair’ if: ‘(1) [a defendant’s] due process rights were violated by defects in his underlying U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 Tinoco-Garcia also challenges the validity of his notice to appear under 8 U.S.C. § 1229(a) and 8 C.F.R. §§ 1003.12-15. As Tinoco-Garcia recognizes, Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), require that we reject the challenge, which Tinoco-Garcia preserved for en banc or Supreme Court review. 2 deportation proceeding, and (2) he suffered prejudice as a result of the defects.’” Id. (citing United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)). The exhaustion requirement “cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.” Id. (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001)). Finally, “[t]he Due Process Clause of the Fifth Amendment requires that an alien in immigration proceedings be ‘made aware that he has a right to seek ...
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