FILED NOT FOR PUBLICATION JUL 18 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50377 Plaintiff-Appellee, D.C. No. 3:16-cr-00343-LAB-1 v. MARTIN MORELOS-NAVARRO, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted March 5, 2018 Pasadena, California Before: THOMAS, Chief Judge, NGUYEN, Circuit Judge, and SETTLE,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. This case was originally submitted to a panel that included Judge Reinhardt. After Judge Reinhardt’s death, Chief Judge Thomas was drawn by lot to replace him on the panel. Ninth Circuit General Order 3.2.h. Martin Morelos-Navarro appeals the district court’s denial of his motion pursuant to 8 U.S.C. § 1326(d) to dismiss an indictment charging him with illegal re-entry after deportation in violation of 8 U.S.C. § 1326. We reverse. Because the parties are familiar with the history of this case, we need not recount it here. I A charge under 8 U.S.C. § 1326 must be dismissed if the following three elements are satisfied: (1) “the alien 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 the alien of the opportunity for judicial review;” and (3) “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d); United States v. Reyes-Bonilla, 671 F.3d 1036, 1042–43 (9th Cir. 2012). “An underlying 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) (quotation marks and brackets omitted). People in removal proceedings have a right to counsel at their own expense under the Fifth Amendment’s Due Process Clause as well as the governing statute and regulation. Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005); Tawadrus 2 v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004); 8 U.S.C. § 1362; 8 C.F.R. § 1003.16(b). “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). Under applicable regulations, an immigration judge (“IJ”) must “require the respondent to state then and there whether he or she desires representation” and to “[a]dvise the respondent of the availability of pro bono legal services for the immigration court location at which the hearing will take place, and ascertain that the respondent has received a list of such pro bono legal services providers.” 8 C.F.R. § 1240.10(a)(1), (a)(2). When a removal proceeding in which ...
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