NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50322 Plaintiff-Appellee, D.C. No. 8:18-cr-00002-DOC-1 v. VALENTIN FUENTES CARREON, AKA MEMORANDUM* Valentin Carreon Fuentes, AKA Valentin Fuentes Carrion, AKA Valentin Fuentes- Carreon, AKA Valentin Fuentescarreon, AKA Octavio Ortiz, AKA Martin Oscar Perez, AKA Soriano Alberto Rojas, Defendant-Appellant. Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding Submitted August 13, 2019** Pasadena, California Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges. * 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 D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Defendant-Appellant Valentin Fuentes Carreon appeals the district court’s denial of his motion to dismiss the indictment and appeals his conviction and 18- month sentence for being an alien in the United States after deportation in violation of 8 U.S.C. § 1326(a). Fuentes Carreon collaterally attacks his underlying removal order on due process grounds. We have jurisdiction under 28 U.S.C. § 1291. “We review a collateral attack to a deportation order de novo.” United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc). We affirm.1 Section 1326(d) provides that “an alien may not challenge the validity of the deportation order described in subsection (a)(1) . . . unless the alien demonstrates that . . . the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3); see also United States v. Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2015) (appealing denial of motion to dismiss a § 1326 indictment on the basis that the underlying removal order was invalid). The fundamentally unfair prong is a two- part inquiry requiring that “(1) [the alien’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. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013) (alteration in original) (quoting United States v. Ubaldo-Figueroa, 364 1 The facts are familiar to the parties and are restated here only as necessary to resolve the issues on appeal. 2 F.3d 1042, 1048 (9th Cir. 2004)). Due process requires an immigration judge (IJ) to “inform an alien of his ‘apparent eligibility’ for forms of relief such as voluntary departure.” Valdez-Novoa, 780 F.3d at 913 (citing 8 C.F.R. § 1240.11(a)(2)). Eligibility for relief is “apparent” when “the record, fairly reviewed by an individual who is intimately familiar with the immigration laws[,] . . . raises a reasonable possibility that the petitioner may be eligible for relief.” Rojas- Pedroza, 716 F.3d at 1263 (alteration in original) (quoting Lopez-Velasquez, 629 F.3d at 896). The “inquiry ‘focuse[s] on whether the factual circumstances ...
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