United States of America v. Jesus Chavarria-Arellano

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS CHAVARRIA-ARELLANO,
Defendant - Appellant.
No. 13-30211
D.C. No. 2:12-cr-06050-FVS-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted June 6, 2014
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN, Senior
District Judge. **
Jesus Chavarria-Arellano appeals the district court's denial of his
motion to dismiss an indictment charging him with illegal reentry after
FILED
JUN 16 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.
** The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.

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deportation under 8 U.S.C. § 1326. He contends that § 1326(d), which permits
collateral challenges to the “underlying deportation order,” permits him to
collaterally attack the May 1998 administrative voluntary departure order.
The indictment charged Chavarria-Arellano with being present in the United
States on or about August 1, 2012, after having been subjected to expedited
removal on July 1, 1998 and after having had his removal reinstated on April 5,
2000. But the indictment does not reference the May 1998 order, and the plain
language of the statute does not allow for collateral challenges to orders not
“underlying” the indictment.
Our recent holding in United States v. Sanchez-Aguilar, 719 F.3d 1108 (9th
Cir. 2013), cert. denied, 134 S. Ct. 364 (2013), forecloses Chavarria-Arellano’s
due process argument, as he acknowledged in his briefs and before the panel.
Officials’ failure to inform a “[n]on-admitted alien[] . . . who seek[s] entry at the
border” of the right to request withdrawal of his application for admission into the
United States does not violate due process. Id. at 1112. Chavarria-Arellano made
no argument that he is not a non-admitted alien.
AFFIRMED.

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