United States of America v. Francisco Javier Lizarraga- Espinoza

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO JAVIER LIZARRAGA-
ESPINOZA,
Defendant - Appellant.
No. 13-50257
D.C. No. 3:12-cr-02304-AJB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted June 5, 2014
Pasadena, California
Before: REINHARDT, FISHER, and MURGUIA, Circuit Judges.
Defendant-appellant Francisco Javier Lizarraga-Espinoza appeals his
conviction after a jury trial under 8 U.S.C. § 1326(a) and (b) for illegal reentry
after removal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
JUL 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Lizarraga-Espinoza contends that his two removal orders–one from 1998
and one from 2000–are invalid and thus cannot serve as the basis for prosecution
under 8 U.S.C. § 1326. In order to collaterally attack a predicate removal order, a
defendant must demonstrate, among other things, that the removal order was
“fundamentally unfair.” 8 U.S.C. § 1326(d); see also United States v. Pallares-
Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). For a removal order to be
“fundamentally unfair,” the removal proceedings must have violated the
defendant’s due process rights in a manner that caused prejudice–meaning that
absent the due process violation some relief from removal would have been
plausible. United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir.
2011); United States v. Garcia-Martinez, 228 F.3d 956, 959-60 (9th Cir. 2000).
We assume without deciding that Lizarraga-Espinoza’s 1998 removal order
was invalid and cannot serve as the predicate removal order for his conviction.
However, we conclude that the 2000 removal order is a valid predicate for his
conviction. In 2000, Lizarraga-Espinoza sought admission into the United States
without valid documentation and by falsely claiming citizenship. An immigration
officer ordered him removed after an expedited removal proceeding. See 8 U.S.C.
§ 1225. Lizarraga-Espinoza now contends that he should have been treated as a
lawful permanent resident (LPR) in 2000 and thus should not have been subjected
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to an expedited removal proceeding. See 8 C.F.R. § 235.3(b)(5)(ii). He further
contends that such an error–having an expedited removal proceeding instead of a
formal hearing before an immigration judge–causes prejudice per se.
First, Lizarraga-Espinoza offers no authority for the contention that a
defendant improperly denied a formal immigration hearing need not show
prejudice, and we have consistently required a showing of actual prejudice. See
Garcia-Martinez, 228 F.3d at 964. Second, Lizarraga-Espinoza can show no
prejudice from the entry of the removal order in 2000; regardless of the nature of
the proceedings afforded him, he had no plausible form of relief from that removal
order. He had been convicted in 1996 of a crime of violence and had been given a
suspended sentence of three years in jail. Thus, by 2000, Lizarraga-Espinoza was
an aggravated felon. See 8 U.S.C. § 1101(a)(43)(F). As an aggravated felon,
Lizarraga-Espinoza was ineligible for relief from removal even if he had been
treated as an LPR and placed in formal removal proceedings. See, e.g., United
States v. Sandoval-Orellana, 714 F.3d 1174, 1181 (9th Cir. 2013) (holding that the
district court correctly denied a motion to dismiss a § 1326 indictment where the
defendant “was ineligible for discretionary relief as an aggravated felon”); see
also 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated
felony at any time after admission is deportable.”). Because he cannot show that
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relief was plausible in 2000, Lizarraga-Espinoza cannot demonstrate that his 2000
removal order was fundamentally unfair. His challenge to his 8 U.S.C. § 1326
conviction thus fails.
AFFIRMED.
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