United States of America v. FIDENCIO CASTRO-VERDUGO, AKA Fidel Castro-Verdugo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FIDENCIO CASTRO-VERDUGO, AKA
Fidel Castro-Verdugo,
Defendant-Appellant.
No. 16-50207
D.C. No.
3:15-cr-01789-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 3, 2017**
Pasadena, California
Before: GRABER, MURGUIA, and CHRISTEN, Circuit Judges.
Defendant Fidencio Castro-Verdugo appealed the district court’s denial of
his 8 U.S.C. § 1326(d) motion to dismiss the indictment, in which he argued that
his underlying removal proceeding did not comport with due process and could not
* 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).
FILED
OCT 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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serve as the basis for his charge under 8 U.S.C. § 1326. Reviewing de novo, United
States v. Pallares-Galan, 359 F.3d 1088, 1094 (9th Cir. 2004), we affirm.
The district court did not err in denying Castro-Verdugo’s motion to dismiss
the indictment. The IJ complied with the procedural due process requirement to
inform Castro-Verdugo of his eligibility to apply for relief from removal and
afford him the opportunity to apply for such relief. See United States v. Gonzalez-
Flores, 804 F.3d 920, 927 (9th Cir. 2015), cert. denied, 136 S. Ct. 1234 (2016). The
IJ “meaningfully advised” Castro-Verdugo of his rights where the IJ informed him
of the right to present evidence, identified the specific relief he might be eligible
for, and engaged in a one-on-one discussion with him giving him an opportunity to
understand what the IJ was considering and to respond. See United States v.
Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam).
Castro-Verdugo also argues that his case is analogous to Melendez-Castro in
which the court held Melendez-Castro was not meaningfully advised of his right to
seek voluntary departure because the IJ told Melendez-Castro that he was eligible
for relief, but immediately stated he would not grant the relief because of
Melendez-Castro’s criminal history. Id. However, Melendez-Castro is
distinguishable because here there is no indication in the record before us that the
IJ prejudged Castro-Verdugo’s possible application for relief.
Accordingly, Castro-Verdugo’s underlying removal order is not

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fundamentally unfair and stands as a predicate element for his charge under 8
U.S.C. § 1326, removed alien found in the United States.
AFFIRMED.

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